[Senate Hearing 109-277]
[From the U.S. Government Publishing Office]
S. Hrg. 109-277
CONFIRMATION HEARING ON THE NOMINATION OF SAMUEL A. ALITO, JR. TO
BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JANUARY 9-13, 2006
__________
Serial No. J-109-56
__________
Printed for the use of the Committee on the Judiciary
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25-429 WASHINGTON : 2006
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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JANUARY 9-11, 2006
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 15
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 44
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 47
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 39
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 24
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 41
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 31
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 26
Graham, Hon. Lindsey O., a U.S. Senator from the State of South
Carolina....................................................... 33
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 13
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 8
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 10
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 21
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 5
prepared statement........................................... 1229
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 36
prepared statement........................................... 1443
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 28
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 2
PRESENTERS
Lautenberg, Hon. Frank R., a U.S. Senator from the State of New
Jersey presenting Samuel A. Alito, Jr., Nominee to be an
Associate Justice of the Supreme Court of the United States.... 50
Whitman, Christine Todd, former Governor of New Jersey, and
former Administrator, U.S. Environmental Protection Agency,
presenting Samuel A. Alito, Jr., Nominee to be an Associate
Justice of the Supreme Court of the United States.............. 51
STATEMENT OF THE NOMINEE
Alito, Samuel A., Jr., of New Jersey, Nominee to be an Associate
Justice of the Supreme Court of the United States.............. 54
Questionnaire................................................ 58
----------
JANUARY 12, 2006
WITNESSES
Aldisert, Ruggero J., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania...................... 659
Axelrod, Edna Ball, Attorney at Law, Law Offices of Edna Ball
Axelrod, South Orange, New Jersey.............................. 681
Barry, Maryanne Trump, Judge, U.S. Court of Appeals for the Third
Circuit, Philadelphia, Pennsylvania............................ 658
Becker, Edward R., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania...................... 654
Garth, Leonard I., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Chicago, Illinois............................... 661
Gerhardt, Michael J., Samuel Ashe Distinguished Professor of
Constitutional Law, University of North Carolina School of Law,
Chapel Hill, North Carolina.................................... 683
Gibbons, John J., Judge (retired), U.S. Court of Appeals, and
Director, Gibbons, Del Deo, Dolan, Griffinger & Vecchione,
Newark, New Jersey............................................. 664
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New
York University, New York, New York............................ 687
Kirsanow, Peter N., U.S. Commission on Civil Rights, and Partner,
Benesch Friedlander Coplan & Aronoff, LLP, Cleveland, Ohio..... 685
Lewis, Timothy K., Judge (retired), U.S. Court of Appeals for the
Third Circuit, and Counsel, Schnader Harrison Segal & Lewis,
LLP, Washington, D.C........................................... 667
Liu, Goodwin, Assistant Professor of Law, Boalt Hall School of
Law, University of California, Berkeley, Berkeley, California.. 690
Phillips, Carter G., Managing Partner, Sidley Austin, LLP,
Washington, D.C................................................ 689
Scirica, Anthony J., Chief Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania...................... 656
Tober, Stephen L., Esq., Chairman, American Bar Association
Standing Committee on the Federal Judiciary, Portsmouth New
Hampshire; accompanied by Marna Tucker, Esq., D.C. Circuit
Representative, American Bar Association Standing Committee on
the Federal Judiciary, Washington, D.C.; and John Payton, Esq.,
Federal Circuit Representative, American Bar Association
Standing Committee on the Federal Judiciary, Washington, D.C... 641
----------
JANUARY 13, 2006
WITNESSES
Chemerinsky, Erwin, Alston & Bird Professor of Law and Political
Science, Duke University Law School, Durham, North Carolina.... 708
Demleitner, Nora V., Vice Dean for Academic Affairs and Professor
of Law, Hofstra University School of Law, Hempstead, New York.. 706
Flym, John G.S., retired Professor of Law, Northeastern
University School of Law, Boston, Massachusetts................ 738
Fried, Charles, former Solicitor General of the United States,
and Beneficial Professor of Law, Harvard Law School, Cambridge,
Massachusetts.................................................. 713
Frost, Amanda, Assistant Professor of Law, Washington College of
Law, American University, Washington, D.C...................... 736
Gonzalez, Hon. Charles A., a Representative in Congress from the
State of Texas................................................. 750
Gray, Fred D., Senior Partner, Gray, Langford, Sapp, McGowan,
Gray & Nathanson, Tuskegee, Alabama............................ 728
Kronman, Anthony, Sterling Professor of Law and former Dean, Yale
Law School, New Haven, Connecticut............................. 710
Michelman, Kate, former President, National Abortion and
Reproductive Rights Action League Pro-Choice America,
Washington, D.C................................................ 731
Nolan, Beth, Partner, Crowell & Moring, LLP, Washington, D.C..... 711
Pringle, Katherine L., Partner, Friedman Kaplan Seiler & Adelman
LLP, New York, New York........................................ 748
Shaw, Theodore M., Director-Counsel and President, NAACP Legal
Defense and Educational Fund, Inc.............................. 758
Sullivan, Ronald S., Jr., Associate Clinical Professor of Law,
and Senior Fellow, Jamestown Project, Yale Law School, New
Haven, Connecticut............................................. 733
Tribe, Laurence H., Carl M. Loeb University Professor and
Professor of Constitutional Law, Harvard Law School, Cambridge,
Massachusetts.................................................. 714
Turner, Reginald M., Jr., President, National Bar Association,
Washington, D.C................................................ 756
Wasserman Schultz, Hon. Debbie, a Representative in Congress from
the State of Florida........................................... 752
White, Jack, Associate, Kirkland and Ellis, LLP, San Francisco,
California..................................................... 754
QUESTIONS AND ANSWERS
Responses of Samuel A. Alito, Jr. to questions submitted by
Senators Biden, Durbin, Kennedy, Leahy, Levin, Schumer, and
Feingold....................................................... 773
Responses of Erwin Chemerinsky to questions submitted by Senators
Coburn and Kennedy............................................. 813
Response of Laurence Tribe to a question submitted by Senator
Coburn......................................................... 816
SUBMISSIONS FOR THE RECORD
Aldisert, Ruggero J., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania, prepared statement.. 819
Alliance for Justice, Nan Aron, President, Washington, D.C.,
letter and attachment.......................................... 823
American Association for Affirmative Action, Shirley J. Wilcher,
Interim Executive Director, Washington, letter................. 839
American Association of University Women, Lisa M. Maatz,
Director, Public Policy and Government Relations, Washington,
D.C., letter................................................... 841
American Bar Association, Stephen L. Tober, Chair, Washington,
D.C.:
letter, January 4, 2006...................................... 843
letter, January 9, 2006...................................... 845
American Civil Liberties Union, Washington, D.C.:
Shin Inouy, Legislative Office, January 9, 2006, press
release.................................................... 865
Anthony D. Romero, Executive Director, prepared statement.... 867
American Federation of Labor and Congress of Industrial
Organizations, John J. Sweeney, President, Washington, D.C.,
letter......................................................... 875
American Federation of State, County and Municipal Employees,
Gerald W. McEntee, International President, Washington, D.C.,
letter......................................................... 877
Americans United for Separation of Church and State, Rev. Barry
W. Lynn, Executive Director, Washington, D.C., letter.......... 879
ADA Watch/National Coalition for Disability Rights, Jim Ward,
Founder and President, Washington, D.C., letter................ 881
Asian American Justice Center, Karen K. Narasaki, President and
Executive Director, Washington, D.C., letter................... 883
Attorneys General of various States, joint letter................ 885
Axelrod, Edna Ball, Attorney at Law, South Orange, New Jersey,
prepared statement............................................. 888
Bar Association of San Francisco, Joan Haratani, President, San
Francisco, California, letter.................................. 892
Bazelon Center for Mental Health Law, Robert Bernstein, Executive
Director, Washington, D.C., letter............................. 897
Becker, Edward R., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Philadelphia, Pennsylvania, prepared statement.. 899
B'nai B'rith International, Joel S. Kaplan, President and Daniel
S. Mariaschin, Executive Vice President, Washington, D.C.,
letter......................................................... 904
Boston Globe, Boston, Massachusetts, January 10, 2006, article... 905
Brady Center to Prevent Gun Violence, Washington, D.C.:
Mike Barnes, President, letter............................... 908
Dennis A. Henigan, Director, Legal Action Project, prepared
statement.................................................. 910
California Women Lawyers, Pearl Gondrella Mann, President,
Sacramento, California, letter................................. 930
Catholics for a Free Choice, Frances Kissling, President,
Washington, D.C., letter....................................... 934
Center for Reproductive Rights, New York, New York, prepared
statement...................................................... 937
Chemerinsky, Erwin, Alston & Bird Professor of Law and Political
Science, Duke University Law School, Durham, North Carolina,
prepared statement............................................. 946
Chertoff, Michael, Secretary, Department of Homeland Security,
Washington, D.C., press release................................ 957
Chicago Tribune, Steven Lubet and David McGowan, November 18,
2005, article.................................................. 958
Colorado Hispanic Bar Association, Victoria Lovato, President,
Denver, Colorado, letter....................................... 960
Congressional Hispanic Caucus, Hon. Grace Flores Napolitano,
Chair, and Hon. Charles A. Gonzales, Chair, Congressional
Hispanic Caucus Civil Rights Task Force, Washington, D.C.:
January 6, 2006, letter...................................... 963
January 20, 2006, letter..................................... 967
Congress of the United States, women Members of Congress,
Washington, D.C., letter....................................... 969
Daily Princetonian, Princeton, New Jersey, article............... 972
Deans or former deans of law schools, joint letter............... 976
Demleitner, Nora V., Vice Dean for Academic Affairs and Professor
of Law, Hofstra University School of Law, Hempstead, New York,
prepared statement............................................. 979
Dujack, Stephen R., Alexandria, Virginia, prepared statement..... 982
Earthjustice, Vawter Parker, Executive Director, Washington,
D.C., letter................................................... 992
Factual responses to falsehoods in the Knight-Ridder article
attacking Judge Alito, list.................................... 994
Fellow judges criticize application of precedent, list........... 998
Feminist Majority, Eleanor Smeal, President, Arlington, Virginia,
letter......................................................... 1000
Ferrara, Ralph C., former General Counsel of the Securities and
Exchange Commission, and Partner, LeBoeuf, Lamb, Greene &
MacRae LLP, Washington, D.C., letter........................... 1002
Fleming, Cathy, Edwards Angell Palmer & Dodge, LLP, New York, New
York, letter................................................... 1006
Flym, John G.S., retired Professor of Law, Northeastern
University School of Law, Boston, Massachusetts, prepared
statement...................................................... 1008
Former law clerks of Judge Samuel A. Alito, Jr., joint letter.... 1024
Fraternal Order of Police, Grand Lodge, Chuck Canterbury,
National President, Washington, D.C., letter................... 1029
Fried, Charles, former Solicitor General of the United States,
and Beneficial Professor of Law, Harvard Law School, Cambridge,
Massachusetts, prepared statement.............................. 1031
Friends of the Earth, Brent Blackwelder, President, Washington,
D.C., letter................................................... 1037
Frost, Amanda, Assistant Professor of Law, Washington College of
Law, American University, Washington, D.C., prepared statement. 1039
Garth, Leonard I., Senior Judge, U.S. Court of Appeals for the
Third Circuit, Chicago, Illinois, prepared statement........... 1050
Gerhardt, Michael J., Samuel Ashe Distinguished Professor of
Constitutional Law, University of North Carolina School of Law,
Chapel Hill, North Carolina, prepared statement................ 1060
Gibbons, John J., Judge (retired), U.S. Court of Appeals, and
Director, Gibbons, Del Deo, Dolan, Griffinger & Vecchione,
Newark, New Jersey, prepared statement......................... 1079
Gillers, Stephen, Emily Kempin Professor of Law, New York
University School of Law, New York, New York, letter........... 1091
Gonzales, Hon. Charles A., a Representative in Congress from the
State of Texas, prepared statement............................. 1096
Gray, Fred D., Senior Partner, Gray, Langford, Sapp, McGowan,
Gray & Nathanson, Tuskegee, Alabama, prepared statement........ 1105
Hazard, Geoffrey C., Jr., Trustee Professor of Law, University of
Pennsylvania, Philadelphia, Pennsylvania, letter............... 1114
Higginbotham, Michael, Wilson Elkins Professor of Law, University
of Baltimore School of Law, Baltimore, Maryland, letter........ 1118
Human Rights Campaign, Joe Solmonese, President, Washington, D.C.
prepared statement and letter.................................. 1120
Independent Living Center of Kern County, Norris Ledbetter,
System Change Coordinator, and Bonita Coyle, Executive
Director, Bakersfield, California, letter...................... 1126
Independent Living Resource Center San Francisco, Herb Levine,
Executive Director, San Francisco, California, letter.......... 1131
Instances of judges testifying during Supreme Court confirmation
hearings, list................................................. 1133
Ipas, Charlotte Hord Smith, Policy Director, Chapel Hill, North
Carolina, letter............................................... 1134
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New
York University, New York, New York, prepared statement........ 1136
Jackson Lee, Hon. Sheila, a Representative in Congress from the
State of Texas, letter......................................... 1140
Japanese American Citizens League, John Tateishi, National
Executive Director, San Francisco, California, letter.......... 1149
Jewish Community Action, Vic Rosenthal, Executive Director, St.
Paul, Minnesota, prepared statement............................ 1151
Jewish Council on Urban Affairs, Chicago, Illinois, prepared
statement...................................................... 1153
Journal of Child Psychology and Psychiatry, Malden,
Massachusetts, article......................................... 1155
Kirsanow, Peter N., U.S. Commission on Civil Rights, and Partner,
Benesch Friedlander Coplan & Aronoff, LLP, Cleveland, Ohio,
prepared statement............................................. 1164
Kronman, Anthony, Sterling Professor of Law and former Dean, Yale
Law School, New Haven, Connecticut, prepared statement......... 1176
Lambda Legal, Kevin M. Cathcart, Executive Director, New York,
New York, letter............................................... 1180
Law professors who oppose the confirmation of Judge Alito, joint
letter......................................................... 1182
Law professors who support the confirmation of Judge Alito, joint
letter......................................................... 1208
Lawyers' Committee for Civil Rights Under Law, Marjorie Press
Lindblom, Co-Chair and Robert E. Harrington, Co-Chair,
Washington, D.C, prepared statement and letter................. 1210
Leadership Conference on Civil Rights, Dorothy I. Height,
Chairperson, and Wade Henderson, Executive Director,
Washington, D.C., letter....................................... 1216
League of United Latin American Citizens, Washington, D.C., press
release........................................................ 1227
Legal Momentum, Lisalyn R. Jacobs, Vice President for Government
Relations, Washington, D.C., letter............................ 1232
Legal professionals in support of the nomination of Judge Samuel
A. Alito, Jr., joint letter.................................... 1234
Liu, Goodwin, Assistant Professor of Law, Boalt Hall School of
Law, University of California, Berkeley, Berkeley, California,
prepared statement............................................. 1245
Mabel Wadsworth Women's Health Center, Ruth Lockhart, Executive
Director, Sharon Barker, President, Board of Directors, and
Stephanie Cotsirilos, past President, Board of Directors,
Bangor, Maine, letter.......................................... 1262
Mexican American Legal Defense and Educational Fund, Ann Marie
Tallman, President, General Counsel, Los Angeles, California,
prepared statement............................................. 1268
Michelman, Kate, former President, National Abortion and
Reproductive Rights Action League Pro-Choice America,
Washington, D.C., prepared statement........................... 1271
Morgan, Thomas D., Oppenheim Professor of Antitrust and Trade
Regulation Law, George Washington School of Law, Washington,
D.C., letter................................................... 1276
National Association for the Advancement of Colored People,
Hilary O. Shelton, Director, Washington Bureau, Washington,
D.C., letter................................................... 1279
NAACP Legal Defense and Educational Fund, Inc., Theodore M. Shaw,
Director-Counsel and President, Washington, D.C., prepared
statement and attachment....................................... 1281
NARAL Pro-Choice America, Nancy Keenan, President, Washington,
D.C., prepared statement and letter............................ 1289
National Abortion Federation, Vicki A. Saporta, President and
Chief Executive Officer, Washington, D.C., prepared statement
and letter..................................................... 1298
National Association of Social Workers, Elizabeth J. Clark,
Executive Director, Washington, D.C., letter................... 1304
National Association of Women Lawyers, Stephanie A. Scharf,
Chair, Committee for the Evaluation of Supreme Court Nominees,
Chicago, Illinois, letter and attachment....................... 1305
National Cancer Institute, U.S. National Institutes of Health,
Washington, D.C., report and fact sheets....................... 1308
National Council of Jewish Women, Phyllis Snyder, President, New
York, New York, prepared statement and letter.................. 1323
National Council of Women's Organizations, Susan Scanlan, Chair,
and Terry O'Neil, Executive Director, Washington, D.C., letter. 1328
National Council on Independent Living, John Lancaster, Executive
Director, and Kelly Buckland, President, Arlington, Virginia,
letter......................................................... 1329
National District Attorneys Association, Paul A. Logli,
President, and Thomas J. Charron, Executive Director,
Alexandria, Virginia, letter and resolution.................... 1334
National Employment Lawyers Association, Marissa M. Tirona,
Program Director, San Francisco, California, letter............ 1336
National Family Planning and Reproductive Health Association,
Judith M. DeSarno, President, Chief Executive Officer,
Washington, D.C., letter....................................... 1337
National Gay and Lesbian Task Force, Matt Foreman, Executive
Director, Washington, D.C., letter............................. 1338
National Journal Group Inc., Washington, D.C.:
December 12, 2005, article................................... 1340
January 9, 2006, article..................................... 1344
National Latina Institute for Reproductive Health, Silvia
Henriquez, Executive Director, New York, New York, letter...... 1347
National Organization for Women, Kim Gandy, President,
Washington, D.C., prepared statement and letter................ 1349
National Partnership for Women & Families, Debra L. Ness,
President, Washington, D.C., letter and prepared statement..... 1352
National Urban League, Marc H. Morial, President and Chief
Executive Officer, New York, New York, letter.................. 1382
National Women's Law Center, Nancy Duff Campbell, Co-President
and Marcia D. Greenberger, Co-President, Washington, D.C.,
letter......................................................... 1383
Nolan, Beth, Partner, Crowell & Moring, LLP, Washington, D.C.,
prepared statement............................................. 1386
Pennsylvania State Senators in support of Judge Samuel Alito,
Harrisburg, Pennsylvania, joint letter......................... 1395
People For the American Way, Ralph G. Neas, President,
Washington, D.C., letter....................................... 1398
Phillips, Carter G., Managing Partner, Sidley Austin, LLP,
Washington, D.C., prepared statement........................... 1400
Physicians for Reproductive Choice and Health, Wendy Chavkin, MD,
MPH, Board Chair, New York, New York, prepared statement....... 1405
Planned Parenthood of America and Planned Parenthood Action Fund,
Karen Pearl, Interim President, Washington, D.C., letter and
prepared statement............................................. 1408
Precedents Justice Thomas has called for unraveling, list........ 1417
Princeton Packet, Princeton, New Jersey, February 12, 1985,
article........................................................ 1420
Pringle, Katherine L., Partner, Friedman Kaplan Seiler & Adelman,
LLP, New York, New York, prepared statement.................... 1422
Reach Out America, Dorothy Puryear, Executive Committee, and
Sybil Bank, Executive Committee, Great Neck, New York, letter.. 1425
Religious Action Center of Reform Judaism, Rabbi David
Saperstein, Director and Counsel, and Jane Wishner, Chair,
Commission on Social Action of Reform Judaism, Washington,
D.C., letter................................................... 1426
Religious Coalition for Reproductive Choice, Reverend Carlton W.
Veazey, President and CEO, Washington, D.C., letter............ 1429
Republican Majority for Choice, Washington, D.C., Janury 11,
2006, press release............................................ 1431
Rotunda, Ronald D., George Mason University Foundation Professor
of Law, George Mason University School of Law, Arlington,
Virginia, letter............................................... 1433
Sergeants Benevolent Association, Police Department, City of New
York, Ed Mullins, President, New York, New York, letter........ 1448
Service Employees International Union, Andrew L. Stern,
International President, and Anna Burger, International
Secretary-Treasurer, Washington, D.C., letter.................. 1450
Shaw, Theodore M., Director-Counsel and President, NAACP Legal
Defense & Educational Fund, Inc., Washington, D.C., prepared
statement...................................................... 1456
Sierra Club, Patrick Gallagher, Director, Environmental Law
Program, Washington, D.C., letter.............................. 1460
Sullivan, Ronald S., Jr., Associate Clinical Professor of Law,
and Senior Fellow, Jamestown Project, Yale University, New
Haven, Connecticut, prepared statement......................... 1464
Sydney Morning Herald, Sydney, Australia, January 3, 2006,
article........................................................ 1491
Tober, Stephen L., Esq., American Bar Association, Washington,
D.C., prepared statement....................................... 1493
Tribe, Laurence H., Carl M. Loeb University Professor and
Professor of Constitutional Law, Harvard Law School, Cambridge,
Massachusetts, prepared statement.............................. 1498
Turner, Reginald M., Jr., President, National Bar Association,
Washington, D.C., prepared statement........................... 1519
Union of Orthodox Jewish Congregations of America, Institute for
Public Affairs, Mark Bane, Chair, and Nathan J. Diament,
Director, Washington, D.C., letter............................. 1536
Unitarian Universalist Association of Congregations, Robert C.
Keithan, Director, Washington, D.C., letter.................... 1540
United Automobile, Aerospace and Agricultural Implement Workers
of America, Alan Reuther, Legislative Director, letter......... 1543
Violence Policy Center, M. Kristen Rand, Legislative Director,
Washington, D.C., letter....................................... 1545
Walk, R. David, Jr., Dechert LLP, Swarthmore, Pennsylvania,
letter......................................................... 1548
Wall Street Journal, New York, New York, January 5, 2006, article 1550
Washington Post, Washington, D.C.:
January 2, 2006, article..................................... 1556
January 8, 2006, article..................................... 1558
January 9, 2006, article..................................... 1564
Washington Times, Washington, D.C., January 13, 2006, article.... 1570
Wasserman Schultz, Hon. Debbie, a Representative in Congress from
the State of Florida, prepared statement....................... 1572
White, Jack, Associate, Kirkland & Ellis LLP, Washington, D.C.,
prepared statement............................................. 1581
Women of Reform Judaism, Shelley Lindauer, Executive Director,
and Rosanne M. Selfon, President, Lancaster, Pennsylvania,
letter......................................................... 1585
Women's Medical Fund, Inc., Anne Nicol Gaylor, Administrator,
Madison, Wisconsin, letter..................................... 1586
YWCA USA, Peggy Sanchez Mills, Chief Executive Officer,
Washington, D.C., letter....................................... 1587
NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
MONDAY, JANUARY 9, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 12 p.m., in room
216, Hart Senate Office Building, Hon. Arlen Specter, Chairman
of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. Good afternoon, ladies and gentlemen. The
Senate Judiciary Committee will now proceed to the confirmation
hearing of Judge Samuel Alito, Jr. for the Supreme Court of the
United States. A few matters of administration or housekeeping,
and then we will proceed to the opening statements.
Today we will hear first from Judge Alito--the introduction
of his family. Judge, the floor is yours to introduce your
family.
Judge Altio. Thank you very much, Mr. Chairman. Let me
introduce my wife, Martha, who is here today; and my sister,
Rosemary, who is a lawyer in New Jersey and a tough trial
lawyer. I am glad that she took time from her schedule to come
to the hearing today. My daughter, Laura, who is a senior at
James Caldwell High School in West Caldwell, New Jersey; and if
a father can be permitted to brag for a second, a really great
swimmer who led her high school team to win the county
championship last week. My son, Phillip, who is a second-year
student at the University of Virginia. And when I had my
confirmation hearing for the Court of Appeals, Phillip was 3
years old. And when I was called up to the chair, he took it
upon himself to run up and sit next to me in case any hard
questions came up.
[Laughter.]
Judge Altio. I don't know whether he is going to try the
same thing tomorrow, but probably I could use the help.
I am glad that my in-laws are able to be here today: my
father-in-law, Gene Bomgardner, who is a retired Air Force NCO;
and my mother-in-law, Barbara Bomgardner, who is a retired Air
Force librarian. And my cousins Andrew and Aldomar Kiriev from
Gwynedd Valley, Pennsylvania, are also here.
My mother, who turned 91 a couple of weeks ago,
unfortunately is not able to be here today, but I am sure she
is watching at home.
Thank you very much, Mr. Chairman.
Chairman Specter. Well, thank you, Judge Alito. You have a
beautiful family, and we are delighted to have them with us on
the confirmation proceedings.
We will have 10-minute rounds of opening statements, each
Senator 10 minutes. We will then turn to the presenters, those
who will be presenting Judge Alito formally to the Committee.
And then we will administer the oath to Judge Alito, and we
will hear his testimony.
We will begin tomorrow morning at 9:30 for the opening
round of questions. Each Senator will have 30 minutes on the
opening round, and we have a second round scheduled of 20
minutes for each Senator. And then we will see how we will
proceed.
Our practice is to adhere to the time limits, and we do
that for a number of reasons. One of them is that Senators come
and go, and if we maintain the schedule, which is known to
everybody, they know when to return for their next round of
questions. We will take 15-minute breaks at a convenient time,
and, again, we will hold the breaks to 15 minutes.
I have worked closely with Senator Leahy on scheduling
matters and all other matters, and this is the model that we
used for the confirmation of Chief Justice Roberts. It is our
intention to conclude the hearings this week, and as Senator
Leahy and I worked out, the arrangement is to have a markup on
Tuesday, January the 17th, subject to something extraordinary
happening.
Now let me yield to the distinguished Ranking Member,
Senator Leahy.
Senator Leahy. Well, Mr. Chairman, I don't want to hold up
your opening statement, or the others. I do appreciate people
being here. As the hearing for Chief Justice John Roberts
showed, there will be real questions asked. I would hope
Senators on both sides of the aisle would do that. I think it
is important. We are talking about a position representing 295
million Americans.
On the schedule, I will work with the senior Senator from
Pennsylvania, the Chairman. I understand one of our leaders
once said that getting Senators to all move in order is like
having bullfrogs in a wheelbarrow. But we will continue to work
towards that, and I think the most important thing is we have a
good, solid hearing this week.
Mr. Chairman, you have been totally fair in your procedures
for this, as always.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Thank you very much, Senator Leahy. And
now we begin the opening statements.
No Senator's vote, except for the declaration of war or the
authorization for the use of force, is more important than the
confirmation of a nominee to the Supreme Court for a lifetime
appointment. Judge Alito comes to this proceeding with
extensive experience as a Government lawyer, as a prosecutor,
and as a judge. He has written some 361 opinions. He has voted
in more than 4,800 cases. And it is possible to select a few of
his cases to place him at any and every position on the
judicial spectrum. By selecting the right cases, he could look
like a flaming liberal or he could look like an arch-
conservative.
This hearing will give Judge Alito the full opportunity to
address the concerns of 280 million Americans on probing
questions which will be put to him by 18 Senators representing
their diverse constituencies. I have reserved my own vote on
this nomination until the hearing is concluded. I am committed
as Chairman to a full, fair, and dignified hearing. Hearings
for a Supreme Court nominee should not have a political tilt
for either Republicans or Democrats. They should be in
substance and in perception for all Americans.
There is no firmly established rule as to how much a
nominee must say to be confirmed. While I personally consider
it inappropriate to ask the nominee how he would vote on a
specific matter likely to come before the Court, Senators may
ask whatever they choose, and the nominee is similarly free to
respond as he chooses. It has been my experience that the
hearings are really, in effect, a subtle minuet, with the
nominee answering as many questions as he thinks necessary in
order to be confirmed.
Last year, when President Bush had two vacancies to fill,
there was concern expressed that there might be an ideological
change in the Court. The preliminary indications from Chief
Justice Roberts's performance on the Court and his Judiciary
Committee testimony on modesty, stability, and not jolting the
system all suggest that he will not move the Court in a
different direction. If that holds true, Judge Alito, if
confirmed, may not be the swing vote regardless of what
position Judge Alito takes on the political spectrum.
Perhaps the dominant issue in these hearings is the
widespread concern about Judge Alito's position on a woman's
right to choose. This has arisen in part because of a 1985
statement made by Judge Alito that the Constitution does not
provide for the right to an abortion. It has arisen in part
because of his advocacy in the Solicitor General's office
seeking to limit or overrule Roe and from the dissenting
portion of his opinion in Casey v. Planned Parenthood in the
Third Circuit.
This hearing will give Judge Alito the public forum to
address the issue as he has with Senators in private meetings,
that his personal views and prior advocacy will not determine
his judicial decisions, but instead he will weigh factors such
as stare decisis, that is, what are the precedents; that he
will weigh women's and men's reliance on Roe and he will
consider too whether Roe is ``embedded in the culture of our
Nation.''
The history of the Court is full of surprises on the issue.
The major case upholding Roe was Casey v. Planned Parenthood,
where the landmark opinion was written jointly by three
Justices, Justice O'Connor, Justice Kennedy and Justice Souter.
Before coming to the Court, Justice Souter, Justice Kennedy and
Justice O'Connor, had all expressed views against a woman's
right to choose. David Souter, as Attorney General of New
Hampshire, even opposed changing New Hampshire's law
prohibiting abortion even after the Supreme Court of the United
States had declared it unconstitutional. At the time of Justice
Souter's confirmation hearing, there was a stop Souter rally of
the National Organization for Women a few blocks from where we
currently are holding this hearing, displaying in red a banner
``Stop Souter or Women Will Die,'' ``Stop Souter Rally, a Mass
Lobbying Day,'' somewhat similar to this morning's press where
banners are paraded in front of the Supreme Court ``Save Roe''
and a brochure circulated again by NOW, ``Save Women's Lives,
Vote No on Alito.''
The history of this issue has been one full of surprises.
This hearing comes at a time of great national concern about
the balance between civil rights and the President's national
security authority. The President's constitutional powers as
commander in chief to conduct electronic surveillance appear to
conflict with what Congress has said in the Foreign
Intelligence Surveillance Act. This conflict involves very
major considerations raised by Justice Jackson's historic
concurrence in the Youngstown Steel seizure cases, where
Justice Jackson wrote, ``When the President acts pursuant to an
express or implied authorization of Congress, his authority is
at its maximum, for it includes all that he possesses in his
own right, and all that Congress can delegate. When the
President acts in absence of a congressional grant of
authority, he can rely only upon his own independent powers.
When the President takes measures incompatible with the express
or implied will of Congress, his power is at its lowest ebb.''
And as Justice Jackson noted, ``What is at stake is the
equilibrium established in our constitutional system.''
Another major area of concern is congressional power, and
in recent decisions the Supreme Court of the United States has
declared Acts of Congress unconstitutional, really denigrating
the role of Congress. In declaring unconstitutional legislation
designed to protect women against violence, the Supreme Court
did so notwithstanding a voluminous record in support of that
legislation, but because of Congress's ``method of reasoning,''
rather insulting to suggest that there is some superior method
of reasoning in the Court.
When the Supreme Court handled two cases recently on the
Americans with Disabilities Act, they upheld the Act as it
applied to discrimination as to access, and declared it
unconstitutional as it applied to discrimination in employment.
They did so by applying a test of what is called ``congruent
and proportionate,'' which candidly stated, no one can figure
out. In dissent, Justice Scalia called it a flabby test, where
the Court set itself up as the taskmaster to see if Congress
had done its homework, and Justice Scalia said that it was an
invitation to judicial arbitrariness by policy driven
decisionmaking, and this hearing, I know, will involve
consideration as to Judge Alito's views on congressional power.
There is reason to believe that our Senate confirmation
hearings may be having an effect on Supreme Court nominees on
their later judicial duties. Years after their hearings,
Supreme Court Justices talk to me about our dialogs at these
hearings. This process has now evolved to a point where
nominees meet most of the Senators. In this process, nominees
get an earful. While no promises are extracted, statements are
made by nominees which may well influence their judicial
decisions. Chief Justice Roberts, for example, will have a
tough time giving a jolt to the system after preaching modesty
and stability. There is, I think, a heavy sense of drama as
these hearings begin. This is the quintessential example of
separation of powers under our constitutional process, as the
President nominates, the Senate confirms or rejects, and the
successful nominee ascends to the bench. While it may be a bit
presumptuous, I believe the Framers, if they were here, would
be proud and pleased to see how well their Constitution is
being applied.
My red light just went on, and I now yield to my
distinguished colleague, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
Good afternoon, Judge and Mrs. Alito, and the others.
Following up on what the Chairman was saying, the challenge
for Judge Alito in the course of these hearings is to
demonstrate that he is going to protect the rights and
liberties of all Americans, and in doing that, serve as an
effective check on Government overreaching. I have said that
the President did not help his cause by withdrawing his earlier
nomination of Harriet Miers in the face of criticism from a
narrow faction of his own party who were concerned about how
she might vote.
Supreme Court nominations should not be conducted through a
series of winks and nods designed to reassure a small faction
of our population, while leaving the American people in the
dark. And no President, I think we would all agree, should be
allowed to pack the courts, and especially the Supreme Court,
with nominees selected to enshrine Presidential claims of
Government power. The checks and balances that should be
provided by the courts, Congress and the Constitution are too
important to be sacrificed to a narrow partisan agenda.
This hearing is the opportunity for the American people to
learn what Samuel Alito thinks about their fundamental
constitutional rights and whether he--you, Judge--will protect
their liberty, their privacy and their autonomy from Government
intrusion.
The Supreme Court belongs to all Americans, not just to the
person occupying the White House, and not just to a narrow
faction of either political party, because the Supreme Court is
our ultimate check and balance. Independence of the Court and
its members is crucial to our democracy and our way of life,
and the Senate should never be allowed to be a rubber stamp.
Neither should the Supreme Court. So I will ask the Judge to
demonstrate his independence from the interests of the
President nominating him. This is a nomination to a lifetime
seat on the Nation's highest Court. It is a seat that has often
represented the decisive vote on constitutional issues, so we
have to make an informed decision. That means knowing more
about Samuel Alito's work in the Government and knowing more
about his views.
I will, as the Judge knows, ask about the disturbing
application he wrote to become a political appointee in the
Meese Justice Department. In that application he professed
concern with the fundamental principle of ``one person, one
vote,'' a principle of the equality that is the bedrock of our
laws. This hearing is the only opportunity that the American
people and their representatives have to consider the
suitability of the nominee to serve as a final arbiter on the
meaning of the Constitution and its laws. Has he demonstrated
commitment to the fundamental rights of all Americans? Would he
allow the Government to intrude on Americans' personal privacy
and freedoms?
In a time when this administration seems intent on
accumulating unchecked power, Judge Alito's views on Executive
power are especially important. It is important to know whether
he would serve with judicial independence or as a surrogate for
the President nominating him. So this public conversation, this
hearing over the next few days is extremely important. It is
the people's Constitution and the people's right that we are
all charged with protecting and preserving. In this hearing we
embark on the constitutional process, one that was designed to
protect these rights and has served this country so very well
for more than two centuries.
I am reminded of a photograph, Mr. Chairman, that hangs in
the National Constitution Center in Philadelphia. It shows the
first women ever to serve on the Supreme Court of the United
States taking the oath of office in 1981. How Justice Sandra
Day O'Connor serves is as a model Supreme Court Justice, widely
recognized as a jurist with practical values and a sense of the
consequences of the legal decisions being made by the Supreme
Court. I regret that some on the extreme right have been so
critical of Justice O'Connor, and that they adamantly oppose
the naming of a successor who shares her judicial philosophy
and qualities. Their criticism actually reflects poorly upon
them. It does nothing to tarnish the record of the first woman
to serve as Associate Justice of the Supreme Court of the
United States. She is a Justice whose graciousness and sense of
duty fuels her continued service, even agreeing to serve more
than 6 months after her retirement date, and I know both you
and I commend her for that.
The Court that serves America should reflect America. This
nomination was an opportunity, of course, for the President to
make a nomination based on diversity. He did not, even though
there is no dearth of highly qualified Hispanics and African-
Americans, other individuals who could well have served as
unifying nominees while adding to diversity. But that, of
course, is the President's choice, Judge, not yours. But I look
forward to a time when the membership of the Supreme Court is
more reflective of the country it serves.
As the Senate begins its consideration of President Bush's
nominee, his third to this seat, to Justice O'Connor's seat, we
do so mindful of her critical role in the Supreme Court. Her
legacy is one of fairness, and when I decide how to vote it is
because I want to see that legacy preserved. Justice O'Connor
has been a guardian of the protections the Constitution
provides the American people. She has come to provide balance
and a check on Government intrusion into our personal privacy
and freedoms. In the Hamdi decision she rejected the Bush
administration's claim that they could indefinitely detain a
United States citizen. She upheld the fundamental principle of
judicial review over the exercise of Government power, and she
wrote--and this is one we should all remember--she wrote that
even war is not a blank check for the President when it comes
to the rights of the Nation's citizens. She held that even this
President is not above the law, and of course, no President,
Democratic or Republican, no President is above the law, as
neither are you, nor I, nor anyone in this room.
Her judgment has also been critical in protecting our
environmental rights. She joined in 5-4 majorities affirming
reproductive freedom, and religious freedom, and the Voting
Rights Act. I mention each of these cases because they show how
important a single Supreme Court Justice is, and it is crucial
that we determine what kind of Justice Samuel Alito would be if
confirmed. Of course, Judge, my question will be, will you be
an independent jurist?
It is as the elected representatives of the American
people, all of the people, nearly 300 million people, that we
in the Senate are charged with the responsibility to examine
whether to entrust their precious rights and liberties to this
nominee. The Constitution is their document. It guarantees
their rights from the heavy hand of Government intrusion, and
individual liberties, to freedom of speech, to religion, to
equal treatment, to due process and to privacy. Actually, this
hearing, this is their process. The Federal Judiciary is unlike
the other branches of Government. Once confirmed, a Federal
Judge serves for life, and there is no court above the Supreme
Court. The American people deserve a Supreme Court Justice who
can demonstrate that he or she will not be beholden to the
President, but only to the law.
Last October, the President succumbed to partisan pressure
from the extreme right of his party by withdrawing Harriet
Miers. By withdrawing her nomination and substituting this one,
the President has allowed his choice to be vetoed by an extreme
faction within his party before even a hearing or a vote.
Frankly, that was an eye-opening experience to me. It gives the
impression there are those who do not want an independent
Federal Judiciary. They demand judges who will guarantee the
results that they want, and that is why the questions will be
asked so specifically of you, Judge.
The nomination is being considered against the backdrop of
another recent revelation, that the President has, outside the
law, been conducting secret and warrantless spying on Americans
for more than 4 years. This is a time when the protections of
America's liberties are directly at risk, as are the checks and
balances that serve to constrain abuses of power for more than
200 years. The Supreme Court is relied upon by all of us to
protect our fundamental rights.
I have not decided how I will vote in this nomination, and
like the Chairman, I will base my determination on the whole
record at the conclusion of these hearings, just as I did in
connection with the nomination of John Roberts to be Chief
Justice. At the conclusion of those hearings I determined to
vote for him.
The stakes for the American people could not be higher. At
this critical moment, Senate Democrats serving on this
Committee will perform our constitutional advice and consent
responsibility with heightened vigilance. I would urge all
Senators, Republicans and Democrats and Independents, to join
with us in serious consideration. The appointment of the next
Supreme Court Justice must be made in the people's interest and
in the Nation's interest, not in the interest of any partisan
faction.
Mr. Chairman, Thank you very much.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Hatch.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Senator Hatch. Thank you, Mr. Chairman.
I welcome you, Judge Alito, your family members, friends
and others who are accompanying you.
This hearing is part of an ongoing evaluation of Judge
Samuel Alito's nomination to replace Justice Sandra Day
O'Connor as Associate Justice of the Supreme Court of the
United States. It is remarkable that after a nearly record-long
period without a Supreme Court vacancy, we are here considering
a second nominee in less than 6 months.
Mr. Chairman, let me first commend you for firmly and
fairly handling these hearings. The timetable we are following
reflects your efforts to accommodate all sides, and the 70 days
since President Bush announced the nomination significantly
exceeds the average for other Supreme Court nominees.
The debate over this and other judicial nominations is a
debate over the judiciary itself. It is a debate over how much
power unelected judges should have in our system of government,
how much control judges should have over a written Constitution
that belongs to the people. Ending up in the right place in
this debate requires starting in the right place. The right
place to start is the proper description of what judges are
supposed to do, and the rest of the process should reflect this
judicial job description.
The process for evaluating Judge Alito's nomination began
when President Bush announced it more than 2 months ago. It
continued with Judge Alito's meetings with more than two-thirds
of the Senators and a vigorous debate in the media among
analysts, scholars, and activists. As the Senate completes the
evaluation process, we must keep some very important principles
in mind and follow a few basic rules.
The first principle is that in this judicial selection
process, the Senate and the President have different roles.
Under the Constitution, the President, not the Senate,
nominates and appoints judges. The Senate has a different role.
We must give our advice about whether President Bush should
actually appoint Judge Alito by giving or withholding our
consent. Abiding by the Constitution's design and our own
historical tradition requires that after Judge Alito's
nomination reaches the Senate floor, we vigorously debate it
and then vote up or down.
The second principle is that in our system of Government
the judicial and legislative branches have different roles. As
Chief Justice Roberts described it when he was before this
Committee last fall, ``Judges are not politicians. Judges must
decide cases, not champion causes. Judges must settle legal
disputes, not pursue agendas. Judges must interpret and apply
the law, not make the law.'' This principle that judges are not
politicians lies at the very heart of the judicial job
description.
In addition to these two principles, a few basic rules
should guide how we complete this confirmation process. First,
we must remember that judicial nominees are constrained in what
they may discuss and how they may discuss it. Like Chief
Justice Roberts and others before him, Judge Alito is already a
Federal judge. He not only will be bound by the canons of
judicial ethics as a Supreme Court Justice, he is already bound
by these canons as an appeals court judge. Because judges may
not issue advisory opinions, judicial nominees may not do so
either, especially on issues likely to come before the Court.
That rule has always been honored.
Needless to say, those who will demand such advisory
opinions in this hearing will do so precisely on those issues
that are likely to come before the Court. They have a right to
ask those questions. But as the Washington Post editorialized
just this morning, however, ``he will not--and should not--tell
Americans how he will vote on hotly contested issues.''
When Judge Ruth Bader Ginsburg was before us in 1993, she
said that her standard was to give no hints, no forecasts, no
previews, and declined to answer dozens of questions.
The second rule we should follow is to consider each part
of Judge Alito's record on its own terms for what each part
actually is. He wrote memos when he worked for the Justice
Department. He has written judicial opinions while on the
appeals court. He wrote answers to the questionnaire from this
Committee in 1990 and again last year. He has written articles
and given speeches. He has joined certain groups, and each of
these is different. Each of these must be considered in its own
context, on its own terms, rather than squeezed, twisted, and
distorted into something designed instead to support a
preconceived position or serve a preplanned agenda.
The third rule we should follow is considering Judge
Alito's entire record. Some interest groups focus on--some
would say they obsess about--one recusal question, or they
cherrypick from the thousands of cases in which Judge Alito
participated and the hundreds of opinions he authored or
joined. Or they look at the results that ignore the facts and
the law in those cases.
Judge Alito comes to us with a record that is long, broad,
and deep. He deserves, and our constitutional duty requires,
that we consider his entire record.
Finally, and perhaps most important, we must apply a
judicial rather than a political standard to the information
before us, and we do have a lot of information. The record
includes more than 360 opinions of all kinds--majority,
concurring, and dissenting--written during his judicial tenure.
We have more than 36,000 pages of additional material,
including unpublished opinions, legal briefs, articles,
speeches, and Department of Justice documents relating to his
service in the Office of Legal Counsel and in the Solicitor
General's office. We must apply a judicial, not a political,
standard to this record. Asking a judicial nominee whose side
you will be on in future cases is a political standard.
Evaluating Judge Alito's record by asking those whose side he
has been on in past cases is, again, a political standard.
Scorecards are common in the political process, but they
are inappropriate in the judicial process. The most important
tools in the judicial confirmation process are not litmus paper
and a calculator. Applying a proper judicial standard to Judge
Alito's record means putting aside the scorecards and looking
at how he does what judges are supposed to do, namely, settle
legal disputes by applying already established law.
A judicial standard means that a judicial decision can be
entirely correct even when the result does not line up with our
preferred political positions or cater to certain political
interests. When he was here last fall, Chief Justice Roberts
compared judges to umpires who apply rules they did not write
and cannot change to the competition before them. We do not
evaluate an umpire's performance based on which team won the
game, but on how that umpire applied the rules inning after
inning. We do not hire umpires by showing them the roster for
the upcoming season and demanding to know which teams they will
favor before those teams even take the field. Similarly, we
should evaluate judges and judicial nominees based on the
general process for applying the law to any legal disputes, not
on the specific result in a particular case or dispute.
The fact that Judge Alito is such a baseball fan gives me
even more confidence that he knows the proper role of a judge.
I know that there is a pitched battle going on outside the
Senate, with dueling press conferences, television ads, e-mail,
petition drives, and stacks of reports and press releases. The
Senate can rise above that battle if we remember the proper
role for the Senate and the proper role for judges. We can rise
above that battle if we respect that judicial nominees are
limited in what they may discuss. Take each part of Judge
Alito's record on its own terms. Consider Judge Alito's entire
record and apply a judicial rather than a political standard.
Judge Alito, I know you. I have known you for a long time.
You are a good man. You are an exceptional judge as well. I
welcome you and your family to this Committee, and I hope that
the days ahead will reflect more light than heat. We
congratulate you that you are willing to go through this
grueling process to represent your country on one of the three
separated powers. It means so much to all of us, and I am
grateful to personally know you as well as I do.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Hatch.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman.
Judge Alito, I join in welcoming you and your family to
this Committee. I appreciated the opportunity to visit with you
in my office a few weeks ago, and I was particularly impressed
by your personal family story of how you were encouraged to do
well and contribute to your community. And I also applaud your
dedication to public service throughout your lifetime.
Supreme Court nominations are an occasion to pause and
reflect on the values that make our Nation strong, just, and
fair. And we must determine whether a nominee has a
demonstrated commitment to those basic values. Will a nominee
embrace and uphold the essential meaning of the four words
inscribed above the entrance of the Supreme Court Building,
``Equal justice under law.''
Justice Louis Powell spoke for all of us when he said,
``Equal justice under law is perhaps the most inspiring idea of
our society. It is one of the ends for which our entire legal
system exists.''
As we have seen from Justice O'Connor's example, even one
Justice can profoundly alter the meaning of those words for our
citizens. Even one Justice can deeply affect the rights and
liberties of the American people. Even one Justice can advance
or reverse the progress of our journey.
So the question before us in these hearings is this: does
Judge Alito's record hold true to the letter and the spirit of
equal justice? Is he committed to the core values of our
Constitution that are at the heart of our Nation's progress,
and can he truly be evenhanded and fair in his decisions?
In a way Judge Alito has faced this issue before as a
nominee to the Court of Appeals. I had the privilege of
chairing his confirmation hearing in 1990, and at that time he
had practiced law for 14 years, but only represented one
client, the U.S. Government. I asked whether he believed he
could be impartial in deciding cases involving the Government,
and in that hearing Judge Alito said on the record that the
most important quality for a judge is open-mindedness to the
arguments, and he promised the Committee that he would make a
very conscious effort to be absolutely impartial. We took him
at his word and overwhelmingly confirmed him to the Third
Circuit Court of Appeals.
We now have the record of Judge Alito's 15 years on the
bench, and the benefit of some of his earlier writings that
were not available 15 years ago, and I regret to say that the
record troubles me deeply.
In a era where the White House is abusing power, is
excusing and authorizing torture and is spying on American
citizens, I find Judge Alito's support for an all-powerful
executive branch to be genuinely troubling. Under the
President's spying program there are no checks and balances.
There is no outside review of the legality of this brazen
infringement on the civil rights and liberties of the American
people. Undeterred by the public outcry, the President vows to
continue spying on American citizens. Ultimately the courts
will make the final judgment whether the White House has gone
too far. Independent and impartial judges must assess the
proper balance between protecting our liberties and protecting
our national security.
I am gravely concerned by Judge Alito's clear record of
support for vast Presidential authority unchecked by the other
two branches of Government. In decision after decision on the
bench, he has excused abusive actions by the authorities that
intrude on the personal privacy and freedoms of average
Americans, and in his writings and speeches he has supported a
level of overreaching Presidential power that, frankly, most
Americans find disturbing and even frightening.
In fact, it is extraordinary that each of the three
individuals this President has nominated for the Supreme Court,
Chief Justice Roberts, Harriet Miers and now Judge Alito, has
served not only as a lawyer for the executive branch, but as a
defendant of the most expansive view of Presidential authority.
Perhaps that is why this President nominated them. But as
Justice O'Connor stated, even a state of war is not a blank
check for a President to do whatever he wants. The Supreme
Court must serve as an independent check on abuses by the
executive branch and a protector of our liberties, not a
cheerleader for an imperial presidency.
There are other areas of concern. In an era when too many
Americans are losing their jobs or working for less, trying to
make ends meet, in close cases Judge Alito has ruled the vast
majority of the time against the claims of the individual
citizens. He has acted instead in favor of Government, large
corporations and other powerful interests. In a study by the
well-respected expert, Professor Cass Sunstein of the
University of Chicago Law School, Judge Alito was found to rule
against the individual in 84 percent of his dissents. To put it
plainly, average Americans have had a hard time getting a fair
shake in his courtroom. In an era when America is still too
divided by race and riches, Judge Alito has not written one
single opinion on the merits in favor of a person of color
alleging race discrimination on the job; in 15 years on the
bench, not one.
When I look at that record in light of the 1985 job
application to the Reagan Justice Department, it is even more
troubling. That document lays out an ideological agenda that
highlights his pride in belonging to an alumni group at
Princeton that opposed the admission of women and proposed to
curb the admission of racial minorities. It proclaims his legal
opinion that the Constitution does not protect the right of
women to make their own reproductive decisions. It expresses
outright hostility to the basic principle of one person, one
vote, affirmed by the Supreme Court as essential to ensuring
that all Americans have a voice in their Government. This
application was not a youthful indiscretion. It was a document
prepared by a mature, 35-year-old professional.
Finally, many of us are concerned about conflicting
statements that Judge Alito has made in response to questions
from this Committee and others. As Chairman Specter has stated,
this confirmation largely depends on the credibility of Judge
Alito's statements to us, and we have questions. When asked
about the ideological statements and specific legal opinions in
his 1985 application, Judge Alito has dismissed those
statements as just applying for a job.
When he was before this Committee in 1990 applying for a
job to the circuit, he promised under oath that he would recuse
himself from cases involving Vanguard, the mutual fund company
in which he had most of his investments. But as a judge he
participated in a Vanguard case anyway, and has offered many
conflicting reasons to explain why he broke his word. We need
to get to the bottom of this matter to assure ourselves that
what Judge Alito says in these hearings will not be just words,
but pledges that guide him in the future if he is confirmed.
Judges are appointed by and with the advice and consent of
the Senate, and it is our duty to ask questions on great issues
that matter to the American people and to speak for them. Many
Republican Senators certainly demanded answers from Harriet
Miers. We should expect no less from Judge Alito. There is not
time for a double standard. If confirmed, Judge Alito could
serve on the Court for a generation or more, and the decisions
he will make as Justice will have a direct impact on the lives
and liberties of our children, our grandchildren and even our
great-grandchildren. We have only one chance to get it right,
and a solemn obligation to do so.
Judge Alito, I have serious questions to ask. I
congratulate you on your nomination, and I look forward to your
answers in these hearings.
Chairman Specter. Thank you, Senator Kennedy.
Senator Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. I have a much more positive view of Judge
Alito.
[Laughter.]
Senator Grassley. I think the record will sustain my view.
But first, Judge Alito, I welcome you and your proud family to
the Committee, and congratulations on your nomination.
I first want to remind all Americans who might be listening
that the Senate has a very important responsibility to confirm
only well-qualified individuals who will faithfully interpret
the law and the Constitution. Confirmation should be limited to
those individuals who will be fair, unbiased, devoted to
addressing the facts in the law before them without imposing
their own values and political beliefs when deciding cases.
Nominees should not be expected to precommit to ruling on
certain issues in a certain way, nor should Senators ask
nominees to pledge to rule on cases in a particular way.
If we fulfill our responsibility to the Constitution, the
Supreme Court will be filled with superior legal minds who will
pursue the one agenda that our Founding Fathers intended in
writing the Constitution, justice rather than political or
personal goals. The Supreme Court will then consists of
individuals who meticulously apply the law and the Constitution
regardless of whether the results they reach are popular or
not. If we do our job right, the Supreme Court will not be made
up of men and women who are on the side of the little guy or
the big guy, rather the Supreme Court will be made up of men
and women who are on the side of the law and the Constitution.
From all accounts, Judge Alito has an impressive and
extensive legal and judicial record, certainly one worthy of
someone on the Supreme Court. Judge Alito excelled at top-notch
schools, member of law review, clerked for a Federal judge. He
also held important positions at the Department of Justice,
Office of Legal Counsel, the Solicitor General's Office and was
U.S. Attorney for New Jersey before being appointed to the
Third Circuit.
I want to remind the American people this nominee, Judge
Alito, has been confirmed unanimously by the U.S. Senate, not
once, but twice. This is a tremendous record of accomplishment
in public service equal to any Supreme Court nominee that I
have considered in the 25 years I have been on this Committee.
Not only that, Judge Alito has a reputation for being an
exceptional and honest judge devoted to the rule of law, as
well as being a man of integrity.
Judge Alito enjoys the support and respect of people who
work with him, practice with him, and therefore, know him best.
Example, 54 of Judge Alito's law clerks, Democrats, Republicans
and Independents alike, signed a letter to the Committee that
stated, ``We collectively were involved in thousands of cases
and it never once appeared to us that Judge Alito has prejudged
a case or ruled based on political ideology.'' Continuing to
quote, ``It is our uniform experience that Judge Alito was
guided by his profound respect for the Constitution and the
limited role of the judicial branch.'' Those 54 opinions say a
lot about Judge Alito and his approach to judicial function.
Like Chief Justice Roberts, it appears that Judge Alito tries
to act like an umpire, calling the balls and strikes, rather
than advocating a particular outcome.
I am also impressed with the very complimentary things that
some lawyers have had to say about Judge Alito in the Lawyers
Evaluation Section of the Almanac of Federal Judiciary. With
respect to his legal ability, lawyers praised him, saying that
Judge Alito was ``exceptional,'' ``a brilliant jurist.''
Another lawyer stated that, ``to say that he is outstanding is
to use understatement. He's the best judge on the circuit,
maybe in the country.''
With respect to his demeanor and temperament, lawyers found
Judge Alito to be measured and judicial while on the bench. One
lawyer commented that he is demanding, but always courteous. He
may occasionally, quoting, ``demonstrate a little bit of
impatience with lawyers that aren't quite getting it. This can
be directed at either side. It's just a sign that his mind is
working more efficiently than yours. He's never discourteous,
never abusive.'' Another lawyer said, ``He is pleasant and
courteous.'' Others commented about the impression that Judge
Alito is a conservative judge, but certainly not out to impose
his own personal agenda while on the bench. One lawyer
commented that he ``is a conservative, but reaches honest
decisions,'' while another said, ``By reputation he's known to
be one of the more conservative judges on the court, but he is
forthright and fair. He tries to decide cases in front of him
in the right way.''
The American Bar Association came out just last week with
an evaluation of Judge Alito to be a Justice, and they
considered things like integrity, judgment, compassion, open-
mindedness and freedom from bias and commitment to equal
justice under the law. The ABA once again found Judge Alito to
be unanimously well qualified. This recommendation should have
much weight for my colleagues on the other side, who have time
and time again described the rating of the ABA as, quote,
``gold standard.'' Yet, some liberal interest groups have come
out in full force and have attempted to paint Judge Alito to be
an extremist and to be an activist. They have criticized a
nominee who has, from what I see described by these lawyers and
fellow judges, a reputation of being a restrained jurist
committed to the rule of law and the Constitution, but that is
what these outside-the-mainstream groups always do.
They attack individuals who they believe will not implement
their agenda before the Supreme Court, so Judge Alito should
see criticism as a badge of honor worn by many past and present
members of the Court. Yet, I am glad to see the public fully
participate in this process because this is the nature of our
system of Government, but I do not like to see facts twisted,
untruths fabricated to give the nominee a black eye even before
he comes before our Committee.
So, Judge Alito, now you have that opportunity to set
everyone straight on your record and your approach to deciding
cases. These hearings are also an opportunity, a very good
opportunity to remind the public about the proper role of a
judge in our system of checks and balances limited Government.
Judges are required by our democratic system not to overstep
their positions to become policymakers or super legislators.
Supreme Court nominees should know, without any doubt, that
their job is not to impose their own personal opinions of what
is right and wrong, but to say what the law is, rather than
what they personally think the law ought to be. Supreme Court
nominees should know that this exercise of judicial restraint
is a key ingredient of being a good judge, as the Constitution
constrains judges every bit as it constrains we legislators,
executives and citizens in their actions.
Moreover, Supreme Court nominees should be individuals who
not only understand but truly respect the equal roles and
responsibilities of different branches of Government and our
State Governments. As Alexander Hamilton said in Federalist No.
78, ``The courts must decide the sense of the law, and if they
should be disposed to exercise will instead of judgment, the
consequences would be the substitution of their pleasure to
that of the legislative body.'' Our Framers expected the
judicial branch to be the least dangerous branch of Government.
At our meeting in my office in November, I heard Judge
Alito place emphasis on the limited role of the courts in our
democratic society. He also reiterated this belief in a
questionnaire he submitted to this Committee. So I have some
idea of how Judge Alito approaches the law and views the role
of a judge. I am hopeful that his commitment to judicial
restraint and to confining decisions to the law and the
Constitution will shine through in this hearing, and I believe
it will, and I am hopeful that my colleagues will give Judge
Alito a civil, a fair and a dignified process, as well as an up
or down vote, because as always, the Constitution sets the
standard: the President nominates, the Senate deliberates, and
then we are obligated to give our advice and consent in an up
or down vote.
Judge Alito, I congratulate you.
Chairman Specter. Thank you very much, Senator Grassley.
Senator Biden.
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Biden. Thank you, Mr. Chairman.
Judge, welcome. Mrs. Alito and your family, welcome. It is
an incredible honor to be nominated by a President of the
United States to be an Associate Justice of the Supreme Court,
and you are to be congratulated.
Judge, this may be one of the most significant,
consequential nominations that the Senate will vote on since I
have been here in the last three decades. I think history has
delivered you, fortunately or unfortunately, to a moment where
Supreme Court historians far into the future are going to look
back on this nomination and make a judgment whether or not with
your nomination, and if you are confirmed, whether the
jurisprudence of the Supreme Court begin to change from the
consensus that existed the last 70 years, or whether it
continued on the same path it has over the past six or seven
decades, and that moment is right now.
Lest we think it is kind of like we all go through this
process--and I like the phrase ``minuet'' that the Chairman
used--we all act like there is not an elephant in the room. The
truth of the matter is, there is significant debate among
judicial scholars today as to whether or not we have gone off
on the wrong path with regard to Supreme Court decisions. There
is a very significant dispute that has existed in 5-4 decisions
over the past two decades in a Court that is very closely
divided on the critical, central issues of the day.
Just to make it clear, I am puzzled by some of the things
you have said, and I am sure you are going to get a chance to
tell me what you meant by some of the things you wrote and
said, but when in your job application you talked about being
proud, as you should be, to be proud of your subscription to
and adhering to notions put forward in the National Review that
you are a proud member of the Federalist Society, the National
Conservative Political Action Committee, the American Spectator
is something you look to, et cetera. These are all really very
bright folks. They all have a very decided opinion on the
issues of the day--very decided. And those very organizations I
have named think, for example, we misread the Fifth Amendment
and have been misreading it for the past three decades. Those
same groups argue that, in fact, there is no right of privacy
in the Constitution, et cetera. So people are not making this
up. In a sense, it is not about you. You find yourself in the
middle of one of the most significant national debates in
modern constitutional history because you have been nominated
to replace a woman, in addition, who has been the deciding vote
on a significant number of these cases. Since 1995 there have
been 193 5-4 decisions, and Justice O'Connor 77 percent of the
time has been the deciding vote. And for 70 years, there has
been a consensus among scholars and the American people on a
reading of the Constitution that protects the right of privacy,
the autonomy of individuals, while at the same time empowering
the Federal Government to protect the less powerful. Only
recently has the debate come that States rights are being
trumped in a fundamental way, a reading of the 10th Amendment
and 11th Amendment. That is a legitimate debate. Totally
legitimate. But anybody who pretends that how you read the 10th
and 11th Amendment does not have a fundamental impact on the
things we care about is kidding themselves. They are either
uninformed or they are kidding themselves.
So, Judge, there is a genuine struggle going on well beyond
you, well beyond the Congress, in America about how to read the
Constitution. And I believe at its core we have a Constitution,
as our Supreme Court's first great Justice Marshall said in
1819, and I quote, ``intended to endure for the ages to come
and consequently to be adapted to the various crises of human
affairs.'' That is the crux of the debate we are having now,
whether it is an adaptable Constitution. A lot of my friends
make very powerful and convincing arguments--and they may be
right--that, no, no, no, no, no, it is not adaptable, it is not
adaptable. And since our country's founding, we have tried to
keep Government's heavy hand out of our personal lives while
ensuring that we do the most important thing, which is to
protect those who cannot protect themselves. And the debate
raging today is about whether we will continue along that path
and whether our courts will continue to be one of the places
where society puts the little guy--and I know this is not
something you are supposed to say--the little guy on the same
footing with the big guy. The one place David is equal to
Goliath is in the Supreme Court.
It is also important to note that you are slated to replace
the first woman ever nominated to the Supreme Court. We can
pretend that is not the fact, but it is. And through no fault
of your own, we are cutting the number of women in half on the
Court. And now, as I said, that is not your fault, but I think
it means that we have to take, at least speaking for myself, a
closer look at your stands on issues that are important to
women. And, moreover, Justice O'Connor brought critical
qualities to the High Court that not everybody thinks are
qualities--I happen to think they are--her pragmatism and her
statecraft. Not that I have always agreed with what she said,
far from it, but Justice O'Connor has been properly lauded in
my view as a judge who approached her duties with open-
mindedness and with a sensitivity to the effects her decisions
would have on everyday, ordinary people. She, unlike Judge
Bork, did not think that being on the Court would be ``an
intellectual feast,'' to quote Judge Bork. Justice O'Connor
also brought balance to our highest Court. Most recently, as
has been repeated many times, she cautioned about war does not
give a blank check. Her decisions reflect, in my view, that our
societies work very hard to improve the workaday world, to open
doors to workers confronted by powerful employers and for women
facing harassment and stereotypes.
Now, I acknowledge this is a very tough job a judge has in
determining whether or not there is an openness that is
required under the Constitution. But I also acknowledge that
prejudice runs very deep in our society, and in the real world,
discrimination rears its ugly head in the shadows where it is
very difficult to root it out. But Justice O'Connor was not
afraid to go into the shadows.
The Constitution provides for one democratic moment, Judge,
before a lifetime of judicial independence when the people of
the United States are entitled to know as much as we can about
the person that we are about to entrust with safeguarding our
future and the future of our kids. And, Judge, simply put, that
is this moment, the one democratic moment in a lifetime of
absolute judicial independence. And that is what these hearings
are about, in my view.
In the coming days, we want to know about what you believe,
Judge, how you view the Constitution, how you envision the role
of the Federal courts, what kind of Justice you would seek to
become. As I said, this one democratic moment when the people,
through their elected representatives, get to ask questions of
a President's choice for the highest Court. And I hope you will
be forthcoming.
I cannot imagine, notwithstanding what many of my
colleagues, whom I have great respect for, believe, I can't
imagine the Founders, when they sat down and wrote the document
and got to the Appointments Clause and said, You know what? The
American people are entitled to know before we make him
President, before we make her Senator, before we make him
Congressman, what they believe on the major issues of the day.
But judges, Supreme Court nominees, as long as they are smart
and honest and decent, it really does not matter what they
think. We do not have to know. I can't fathom--can't fathom--
that that was the intent of the Founders. They intended the
American people to know what their nominees thought.
And I might add--and I will end with this--we just had two
Supreme Court Justices before our caucus just as they were
before, I think, the Republican Caucus. They ventured opinions
on everything. On everything, things that are going to come
before the Court. It did not in any way jeopardize their
judicial independence.
So, Judge, I really hope that this does not turn out to be
a minuet. I hope it turns out to be a conversation. I believe
we--you and I and this Committee--owe it to the American people
in this one democratic moment to have a conversation about the
issues that will affect their lives profoundly. They are
entitled to know what you think.
And I remind my colleagues, many of whom are on this
Committee, they sure wanted to know what Harriet Miers thought
about everything. They sure wanted to know in great detail.
They were about ready to administer blood tests. The good news
is no blood test here. The good news is no blood test, just a
conversation, and I hope you will engage in it with us because
I am anxious to get a sense of how you are going to approach
these big issues.
I thank you very much, Judge.
Chairman Specter. Thank you, Senator Biden.
Senator Kyl?
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman.
Welcome, Judge Alito, to your confirmation hearing. At the
outset, I am pleased to note that you have more judicial
experience than any Supreme Court nominee in more than 70
years. Indeed, only one Supreme Court Justice in history, one
Horace Lurton, nominated by President Taft, had more Federal
appeals court experience. Moreover, you have devoted virtually
your entire professional life to public service, and the Nation
owes you gratitude for that service. I look forward to a
dignified hearing followed by a fair up or down vote on the
Senate floor.
Before discussing your nomination, I would like to take a
moment to express my respect and admiration for the Justice
whom you are nominated to replace, my fellow Arizonan Sandra
Day O'Connor, whom I have known for more than 30 years. Justice
O'Connor has served with great distinction during her career in
the Arizona Legislature, on the Arizona Court of Appeals, and
for what has been a quarter of a century on the U.S. Supreme
Court. Arizonans are deeply proud of Justice O'Connor's service
to this country. She will always be remembered by Arizonans and
all Americans as an extraordinary public servant.
Judge Alito, I would like to discuss your background and
experience in the context of other Justices on the Supreme
Court so that everyone understands how well you satisfy what we
have come to expect from our top judges. Like all the sitting
Justices, you had an outstanding education. One of your
classmates at Yale Law School, Tony Kronman, who later went on
to be the dean of the law school and could, I believe, fairly
be described as a political liberal, has recently remarked, and
I quote, ``He impressed me''--speaking of you--``as being more
interested in the technical, intellectual challenges of the law
and its legal reasoning than its political uses or
ramifications.'' Thus, even in your early 20's, it appears you
were focused on the law as an independent pursuit rather than
using law to influence political ends.
With your intellect and education, you could have become a
wealthy attorney, but instead you devoted virtually all of your
legal career to the public service. In doing so, you meet, and
even exceed, the stellar examples set by Justices Thomas and
Souter, each of whom devoted most of their pre-judicial careers
to public service. Perhaps this is because, like Justices
Ginsburg and Scalia, you had a father who was an immigrant to
this Nation. It seems that immigrants often have a special
understanding of the incredible opportunities that this Nation
affords its citizens. Moreover, your father's long service to
the people of New Jersey both as a schoolteacher and as a civil
servant in the State legislature plainly served as a model for
you.
I also note that you served in the U.S. Army Reserves from
1972 until 1980. If confirmed, only you and Justice Stevens
would have any military experience. You would also be the first
Supreme Court Justice to have served in the Army Reserves since
Justice Frank Murphy did so during World War II.
You have spent much of your career as a Federal prosecutor
pursuing terrorists, mob kingpins, drug dealers, and others who
threaten our safety and our security. Justice Souter had a
distinguished career as a State prosecutor, but no sitting
Justice has served as a Federal prosecutor. Again, this
experience could prove helpful given that approximately 40
percent of the Supreme Court docket involves criminal matters.
You also served as an attorney in the executive branch.
Like Chief Justice Roberts, you served in the Solicitor
General's office representing our Government before the Supreme
Court. And like Justice Scalia, you served in the Office of
Legal Counsel, providing constitutional advice to the President
and the rest of the executive branch. In both of these roles,
your job was to advance the policies of a President who twice
won an electoral college landslide. He set the agenda, and you
helped him implement it.
Similarly, Justice Thomas served Presidents Reagan and Bush
in political/legal capacities, and Justice Breyer also worked
in political jobs, both in President Johnson's Justice
Department and as a lawyer to this Committee.
I note that you were just 39 when nominated to serve on the
Third Circuit. Justice Kennedy was only 38 when nominated to
the Ninth Circuit, and Justice Breyer only 42 when nominated to
the First Circuit. Like them, you now have a great deal of
hands-on experience that you can bring to the Court for years
to come.
During your judicial service, you amassed an impressive
record for the Senate to review, including more than 350
authored opinions. It is this judicial record that should be
the focus of this Committee, just as it was with all of the
other sitting Justices on the Court. It appears to me that you
easily fit into the mold of what this Nation has come to expect
from a Supreme Court Justice: a first-rate intellect,
demonstrated academic excellence, a life of engagement with
serious constitutional analysis, and a reputation for fair-
mindedness and modesty. These are the standards for a Supreme
Court Justice, and you plainly meet these expectations. As a
consequence, I view your nomination with a heavy presumption in
favor of confirmation. Before I conclude, I would like, though,
to address two other points.
First, some of my colleagues are fond of asking the
question, Which side are you on? You have heard that today.
Politicians must pick sides regularly, every time they vote, so
it is perhaps natural that they see the world as a battle
between competing groups. But it is wholly inappropriate as an
approach to the judicial role. The only relevant side is that
of the law and the Constitution. We do great injury to the
integrity of the court system when we start speaking of sides
and stop devoting ourselves to the pursuit of impartial
justice.
During Chief Justice Roberts's confirmation hearings, I was
struck by the way he answered the question. Then Judge Roberts
explained that he had been asked earlier in the confirmation
process, Are you going to be on the side of the little guy?
Roberts explained that this question troubled him, and this is
how he answered. He said, ``If the Constitution says that the
little guy should win, the little guy is going to win. But if
the Constitution says that the big guy should win, well, then
the big guy is going to win because my obligation is to the
Constitution. That's the oath. The oath that a judge takes is
not that I will look out for particular interests. The oath is
to uphold the Constitution and the laws of the United States.''
And this is the essence of justice. Our courts provide a
neutral forum for the adjudication of disputes under the law,
not based on economic or political power, on race, on sex, or
any other personal characteristics. Big guy, little guy--it
should make no difference. The rule of law demands neutrality.
Second, I want to address the proper scope of questioning
during these hearings, a matter that has also come up already.
As I reminded Chief Justice Roberts at his hearings, the
American Bar Association Model Code of Judicial Conduct
dictates that, and I quote, ``a judge or candidate for election
or appointment to judicial office shall not, with respect to
cases, controversies, or issues that are likely to come before
the court, make pledges, promises, or commitments that are
inconsistent with the impartial performance of the adjudicative
duties of the office.'' In other words, no judicial nominee
should answer any question that is designed to reveal how the
nominee will rule on any issue that could come before the
Court. This rule has come to be known as ``the Ginsburg
standard'' because Justice Ginsburg stated during her own
confirmation hearings that she would give no forecasts, no
hints about how she would rule on issues. And I was pleased to
see that Chief Justice Roberts refused to prejudge issues or
make promises in exchange for confirmation votes. We are all
better off because of his principled stand.
Soon after his confirmation, Justice Ginsburg was asked
about this Ginsburg standard as applied to the Roberts
hearings, and she said, ``Judge Roberts was unquestionably
right. My rule was I will not answer a question that attempts
to project how I will rule in a case that might come before the
Court.'' In other words, Justice Ginsburg reaffirmed the
Ginsburg standard.
In light of the Chief Justice's confirmation hearings and
Justice Ginsburg's later remarks, I asked my colleagues for
basic fair play. Apply the same standards to Judge Alito that
we applied to John Roberts, Stephen Breyer, Ruth Bader
Ginsburg, and all of the other sitting Justices. Let's not
invent a new standard for Judge Alito or change the rules in
the middle of the game. Politicians must let voters know what
they think about issues before the election. Judges should not.
And it is not a hypothetical matter. Senator Kennedy in his
opening statement expressed concern about the extent of the
executive branch's authority to conduct surveillance of
terrorists and said ultimately the courts will decide whether
the President has gone too far. Indeed they will.
Judge Alito, I will tell you the same thing I told John
Roberts. I expect you to adhere to the Code of Judicial
Conduct, and I want you to know that I will strongly defend
your refusal to give any indication of how you might rule on
any matter that might come before you as a judge or to answer
any question that you believe to be improper under the
circumstances. Congratulations, Judge Alito, on your
nomination.
Chairman Specter. Thank you, Senator Kyl.
Senator Kohl?
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Thank you, Mr. Chairman.
Judge Alito, let me also send my welcome to you this
afternoon and to your family. You are to be congratulated on
your nomination.
Through its interpretation of the Constitution, the Supreme
Court hugely shapes the fabric of our society for us and for
future generations. Over the course of more than 200 years, it
has found a right to equal education regardless of race. It has
guaranteed an attorney and a fair trial to all Americans, rich
and poor alike. It has allowed women to keep private medical
decisions private. And it has allowed Americans to speak, vote,
and worship without interference from their Government.
Through these decisions and many more, the judicial branch
has in its finest hours stood firmly on the side of individuals
against those who would trample their rights. In the words of
Justice Black, ``The courts stand against any winds that blow
as havens of refuge for those who might otherwise suffer
because they are helpless, weak, outnumbered, or because they
are nonconforming victims of prejudice or public excitement.''
As the guardian of our rights, the Supreme Court makes
decisions every year which either protect the individual or
leave him at the mercy of more powerful forces in our society.
They consider questions like when can a disabled individual sue
to gain access to a courthouse, when can a parent leave work to
care for a sick child, when should the Government be allowed to
listen to a private conversation, and when will the courthouse
doors open or close to an employee suffering discrimination at
work.
Whether interpreting the Constitution or filling in the
blanks of a law or a regulation, every word of the Court's
opinion can widen or narrow our rights as Americans and either
protect us or leave us more vulnerable to any winds that blow.
If confirmed, you will write the words that will either broaden
or narrow our rights for the rest of your working life. You
will be interpreting the Constitution in which we as a people
place our faith and on which our freedoms as a Nation rest. And
on a daily basis, the words of your opinions will affect
countless individuals as they seek protection behind the
courthouse doors.
Despite your enormous power, you will be free of all
constraints, unaccountable and unrecallable. We give Supreme
Court Justices this freedom because we expect them to remain
above the pull of politics, to avoid the effects of public
excitement and allow a broader view, not tied to the whims of
the majority at a certain moment in the history. So for only a
short time this month will the people through their Senators be
able to question and to judge you. In short, before we give you
the keys to the car, we would like to know where you plan to
take us.
To a certain extent, we know more about what is in your
heart and in your mind than we did with now Justice Roberts.
You have a long track record as a judge and as a public
official in the Justice Department. When we met privately and I
asked you what sort of Supreme Court Justice you would make,
your answer was fair when you said, ``If you want to know what
sort of a Justice I would make, then look at what sort of a
judge I have been.''
Taking this advice, your critics argue that your judicial
record demonstrates that you will not sufficiently protect the
individual, but will instead side with more powerful interests,
narrow the rights we enjoy, and leave individual Americans more
vulnerable to abuse. For example, they cite your Casey dissent
as diminishing the power of married women over their own
bodies. They identify your decision in the Chittister case as
evidence that you will make it harder for working people to
care for a family. They cite the Bray case and others where you
often side with corporations to block the victims of
discrimination from getting their day in court. Others raise
concerns about your views on the rights of the accused when
faced with the Government's enormous power in the criminal
justice process.
In addition to your record on the bench, your opponents
identify memos you wrote while in the Justice Department as
further evidence of your hostility to individual rights. For
example, in your now famous 1985 job application, you expressed
pride in some of the work you did in the Solicitor General's
office. You chose to single out the assistance that you
provided in crafting Supreme Court briefs urging that ``the
Constitution does not protect a right to an abortion.'' While
these statements came in the context of your work on behalf of
the Reagan administration, they were, nevertheless, your self-
proclaimed personal views.
In the same job application, you wrote that you had pursued
a legal career because you disagreed with many of the decisions
of the Warren Court, especially, and I quote, ``in the areas of
criminal procedure, the Establishment Clause, and
reapportionment.'' These Warren Court decisions establishing
one person/one vote, Miranda rights, and protections for
religious minorities are some of the most important cases
protecting our rights and our liberties, protecting minorities
against majority abuses and protecting individuals against
Government abuses, and yet antagonism toward these decisions
seems to have motivated your pursuit of the law.
Your supporters, on the other hand, contend that it is not
fair to select a few specific cases in light of a career as a
judge spanning 15 years. Further, they dismiss some of your
early memos in the Justice Department as old and not
particularly relevant. They argue that you are well within the
mainstream of judges, especially Republican-appointed judges.
So it is our job to sort out the truth about your record,
separate the rhetoric from the reality, and decide where you
will lead the country. We will need to examine whether, as your
critics contend, you will consistently side against the
individual or whether, as your supporters contend, you are a
mainstream conservative who will fairly decide all cases. I
hope these hearings will add to our record in making this
critical determination.
This would be an appropriate time to share my perspective
on how we will judge the nominee. We have used the same test
for each of the five previous Supreme Court nomination
hearings: a test of judicial excellence. Judicial excellence,
it seems to me, involves at least four elements:
First, a nominee must possess the competence, character,
and temperament to serve on the bench.
Second, judicial excellence means that a Supreme Court
Justice must have a sense of the values from which the core of
our political and economic system goes. In other words, we
should not approve any nominee whose extreme judicial
philosophy would undermine rights and liberties relied upon by
all Americans.
Third, judicial excellence requires an understanding that
the law is more than an intellectual game and more than a
mental exercise. He or she must recognize that real people with
real problems are affected by the decisions rendered by the
Court. Justice, after all, may be blind, but it should not be
deaf.
And, finally, judicial excellence requires candor before
confirmation. We are being asked to give the nominee enormous
power, and so we want to know what is in your mind and in your
heart.
Judge Alito, we are convinced that your intellect and
experience qualifies you for this position. I enjoyed meeting
you a few weeks ago and appreciated our discussion. Your legal
talents are undeniably impressive, and your opinions are
thoughtful and well reasoned. We are now familiar with your
abilities in your long tenure as a judge. And yet we do not
know whether the concerns some have raised about your judicial
philosophy are overstated or whether we need to have serious
doubts about your nomination. I look forward to these hearings
as an opportunity to learn more and measure whether you meet
our test of judicial excellence.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kohl.
Senator DeWine.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Thank you, Mr. Chairman.
Judge Alito, I want to welcome you and your family,
appreciate you being here with us today.
The Constitution gives the Senate a solemn duty, a solemn
duty when it comes to the nomination of any individual to sit
on the U.S. Supreme Court. While the President is to nominate
that individual, we in the Senate must provide our advice and
consent. This function is not well defined. The Constitution
does not set down a road map. It does not require hearings. In
fact, it does not even require questioning on your
understanding of the Constitution or the role of the Supreme
Court.
To me, however, these things are certainly important. The
reason is obvious. When it comes to the Supreme Court, the
American people have only two times when they have any input
into how our Constitution is interpreted and who will have the
privilege to do so. First, we elect a President who has the
power to nominate Justices to the Supreme Court. Second, the
people, acting through their representatives in the Senate,
have their say on whether the President's nominee should in
fact be confirmed.
Judge Alito, I want to use our time together today to make
a point about democracy. When it comes to our Constitution,
judges perform certainly an important role. But the people,
acting through their elected representatives, should play an
even more important role. After all, our Constitution was
intended as a popular document. It was drafted and ratified by
the people. It established democratic institutions. It entrusts
the people with the power to make the tough decisions. In most
cases, it prefers the will of the people to the unchecked rule
of judges. If confirmed, Judge, you should always keep this in
mind.
In my opinion, Chief Justice Roberts put it best during his
recent confirmation hearings, when he said, and I quote, ``The
Framers were not the sort of people, having fought a
revolution, having fought a revolution to get the right of self
government, to sit down and say, well, let's take all the
difficult issues before us, let's have the judges decide them.
That would have been the farthest thing from their mind,'' end
of quote.
Sometimes, Judge, however, I fear that the Supreme Court
forgets this advice. In the last 15 years, in fact, the Court
has struck down, in whole or in part, more than 35 acts of this
Congress, and nearly 60 State and local laws. Without question,
the Court does play a vital role in our constitutional system.
Sometimes local, State, and Federal law so clearly run afoul of
the Constitution, that the Court must step in and strike them
down.
In most cases, the Court performs this admirably and with
great restraint. In recent years, the Court has struck down
some laws that, in my opinion, did not deserve such a fate.
Take, for instance, the Americans with Disabilities Act; it
passed this Congress with overwhelming bipartisan support. The
law was supported by an extensive factual record, and it was
based on our Government's longstanding constitutional power to
fight discrimination wherever it exists. When the Court
considered the ADA in the Garrett case, however, it ignored the
Act's broad support, cast aside the legislative record, and
struck down a portion of the law. The decision was a close one,
5-4. The majority relied on a highly controversial legal
theory, and the case evoked a vigorous dissent.
This is precisely my problem with Garrett. In such a
difficult case where the Constitution does not clearly support
the majority's decision, the proper response is not to strike
down the law. In such a case, the Court should defer to the
will of the people. In other ways, Judge, the Court's recent
decisions have made life more difficult for the democratic
institutions that perform the day-to-day work of our Nation,
recent cases involving affirmative action and the posting of
the Ten Commandments on public property, which seem to me at
least to prove the point. The Court has upheld one affirmative
action program at the University of Michigan, but struck down
another one, and has allowed the posting of the Ten
Commandments outside of a public building, but banned it on the
inside in another case.
To add to the confusion, some of the Court's decisions
involve multiple concurrences and dissents, making it hard,
even for lawyers and judges to figure out what the law is and
why.
Chief Justice Roberts mentioned this problem at his
hearing. And in one of his final statements as Chief Justice,
William Rehnquist noted that one of the Court's decisions had
so many opinions within it that he--and I quote--``didn't know
we had so many Justices on the Court.''
What has emerged in certain areas, therefore, is a
patchwork, a patchwork that leaves local officials, State
legislators, Members of Congress and the public guessing what
the law permits and what it does not. In 1937, President
Franklin Roosevelt reminded us that the Constitution is, and I
quote, ``a layman's document, not a lawyer's contract.'' But
that very document does little to serve people when Supreme
Court decisions are written so that even high-price lawyers
cannot figure them out.
I am not the first to raise these democratic concerns. Many
have faulted the Court for its lack of clarity in certain cases
and many have criticized its recent lack of deference to
decisions made by State legislatures and Congress. In fact,
some have even suggested that this recent trend has transformed
our democracy from one founded on ``we, the people,'' to one
ruled by ``we, the Court.'' To me, the criticism has some
force. The Constitution empowers the people to resolve our
days' most contentious issues. When judges forget this basic
truth, they do a disservice to our democracy and to our
Constitution. Judges are not Members of Congress. They are not
State legislators, Governors, nor Presidents. Their job is not
to pass laws, implement regulations, nor to make policy. To use
the words of Justice Byron White, words that I quoted at our
last Supreme Court hearing: the role of the judge is simply to
decide cases; to decide cases, nothing more.
Judge, from what I have seen so far, you do not need much
reminding on this score. Your decisions are usually brief and
to the point. You write with clarity and common sense, and in
most cases you defer to the decisionmaking of those closest to
the problem at hand. I do not expect to agree with every case
that you decide, but your modest approach to judging seems to
bode well for our democracy.
Over the next several days the members of this Committee
will question you to find out what kind of Justice you will be.
This hearing is really our opportunity to try to answer that
question. Our constitutional system is founded on democracy, a
world of people, not the unchecked rule of judges. If
confirmed, it will be your job to faithfully interpret our
Constitution and to defend our democracy case by case. I wish
you well.
Thank you.
Chairman Specter. Thank you, Senator DeWine.
Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman.
Welcome, Judge Alito. I am one that believes your
appointment to the Supreme Court is the pivotal appointment,
and because you replace Sandra Day O'Connor and because she was
the fifth vote on 148 cases, you well could be a very key and
decisive vote. So during these hearings, I think it is fair for
us to try to determine whether your legal reasoning is within
the mainstream of American legal thought and whether you are
going to follow the law regardless of your personal views about
the law.
Since you have provided personal and legal opinions in the
past, I very much hope that you will be straightforward with
us, share your thinking, and share your legal reasoning.
I would like to use my time to discuss with you some of my
concerns. I have very deep concern about the legacy of the
Rehnquist Court and its efforts to restrict congressional
authority to enact legislation by adopting a very narrow view
of several provisions of the Constitution, including the
Commerce Clause and the 14th Amendment. This trend, I believe,
if continued, would restrict and could even prevent the
Congress from addressing major environmental and social issues
of the future.
As I see it, certain of your decisions on the Third Circuit
raise questions about whether you would continue to advance the
Rehnquist Court's limited view of congressional authority, and
I hope to clear that up.
Let me give you one example here, and that is the Rybar
case. Your dissent argued that Congress lacked the authority to
ban the possession and transfer of machine guns based
essentially on a technicality. The congressional findings from
previous statutes were not explicitly incorporated in the
legislation. You took this position even though the Supreme
Court had made clear in 1939, the Miller case, that Congress
did have the authority to ban the possession and transfer of
firearms, and even though Congress had passed three Federal
statutes that extensively documented the impact that guns and
gun violence have on interstate commerce. I am concerned that
your Rybar opinion demonstrates a willingness to strike down
laws with which you personally may disagree by employing a
narrow reading of Congress's constitutional authority to enact
legislation.
The subject of Executive power has come up, and indeed it
is a very big one. I think we are all concerned about how you
approach and decide cases involving expanded Presidential
powers. Recently there have been several actions taken by the
administration that highlight why the constitutional checks and
balances between the branches of Government are so essential.
These include the use of torture, whether through an expansive
reading of law, or disregarding Geneva Conventions, including
the Convention on Torture, whether the President is bound by
ratified treaties or not, allowing the detention of American
citizens without providing due process--of course, Sandra Day
O'Connor was dispositive in the Hamdi case--and whether the
President can conduct electronic surveillance on Americans
without a warrant despite legislation that establishes a court
process for all electronic surveillance.
I am also concerned with the impact you could have on
women's rights, and specifically, a woman's right to choose. In
the 33 years since Roe was decided, there have been 38
occasions on which Roe has been taken up by the Court. The
Court has not only declined to overrule Roe, but it has also
explicitly reaffirmed its central holding. In our private
meeting, when we spoke about Roe and precedent, you stated that
you could not think of a case that has been reviewed or
challenged more than Roe. You also stated that you believe that
the Constitution does provide a right of privacy and that you
have a deep respect for precedent.
However, in 1985, you clearly stated that you believed Roe
should be overturned and that the Constitution does not protect
a woman's right to choose. So despite voting to sustain Roe on
the Third Circuit, your opinions also raise questions about how
you might rule if not bound by precedent, and of course,
obviously, I would like to find that out.
I am also concerned about the role the Court will play in
protecting individual rights in this and the next century.
Historically, the Court has been the forum to which individuals
can turn when they believed their constitutional rights were
violated. This has been especially noteworthy in the arena of
civil rights, and as has been mentioned, in that same 1985 job
application, you wrote that while in college you developed a
deep interest in constitutional law, and then you said,
motivated in part by disagreement with the Warren Court's
decisions, particularly in the areas of criminal procedure, the
Establishment Clause, and reapportionment. Now, of course, it
was the Warren Court that brought us Brown v. Board of
Education, and of course, reapportionment is the bedrock
principle of ``one man, one vote.'' So exactly what you mean by
this I think is necessary to clear up.
Now, additionally, Justice O'Connor was a deciding vote on
a critical affirmative action case involving the University of
Michigan, Grutter v. Bollinger. So your views here may well be
pivotal, so I think the American people deserve to know how you
feel, how you think, how you would legally reason affirmative
action legislation.
When you served in the Solicitor General's Office during
the Reagan administration, you argued in three cases against
the constitutionality of affirmative action programs, then once
on the Third Circuit, you sided against the individual alleging
discrimination in about three-quarters of the cases before you.
We have a lot to learn about what your views are and your
legal reasoning, and how you would apply that legal reasoning.
I really look forward to the questions, and once again, because
this appointment is so important, I hope you really will be
straightforward with us, and thereby be really straightforward
with the American people.
So thank you, and welcome.
Chairman Specter. Thank you, Senator Feinstein.
Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman.
I would like to also extend my congratulations to you,
Judge Alito and your family. It is a very special day, a great
honor to be nominated to the Supreme Court, the greatest court
in the world, in my view, and this will be a good process. The
Senate has an obligation to make a vigorous inquiry, and they
will do so. I just hope and truly believe that by the end of
these hearings your answers will be heard. The charges that I
have heard made I know will be rebutted. People will listen and
see the answers that you give, and when they do, they will feel
great confidence in you as a member of the Supreme Court.
You have a record as a brilliant but modest jurist, one who
follows the law, who exercises restraint and does not use the
bench as an opportunity to promote any personal or political
agenda. This is exactly what I believe the American people want
in a Justice to the Supreme Court. It is exactly what President
Bush promised to nominate. You represent philosophically that
kind of judge who shows restraint, but at the same time you
bring extraordinary qualifications and abilities.
As has been said, judges are not politicians. They must
decide discrete cases before them based on the law and the
facts of that case. They are not policymakers. Every lawyer
that has practiced in America knows that. That is what they
want in a judge. That is what I understand they believe you
are. That is why the ABA has given you their top rating, in my
view.
This ideal of American law is the rule of law. It is the
American ideal of justice, not to have an agenda, not to allow
personal views to impact your decisionmaking, and I am real
proud to see that your record indicates that.
I like Judge Roberts's phrase of ``modesty.'' I believe
that is your philosophy also. We had the opportunity for a time
to serve as United States Attorneys together. You were the top
prosecutor in the office in New Jersey, one of the largest in
the country. You had the whole State, much larger than my
office. I know your reputation as one of ability, but modesty.
In fact, I remember distinctly somebody told me, ``Don't
underestimate Sam Alito. He's a modest kind of guy, but he's
probably the smartest guy in the Department of Justice.'' I
think that is the reputation you had and one that you can be
quite proud of.
Your record of achievement is extraordinary. You were Phi
Beta Kappa at Princeton and a Woodrow Wilson scholar. You
attended Yale Law School. You were an editor of the law review,
elected by your colleagues, and of course, for a graduating law
student at a prestigious law school or any law school, being an
editor of the law review is an extraordinary honor.
You clerked for a Federal judge on the Third Circuit. You
were an Assistant United States Attorney. You did appellate
work, handling criminal cases, and as United States Attorney
you were primarily a prosecutor. As I have checked the record,
you will be the first person to serve on the Supreme Court
since Tom Clark, who was appointed by Harry Truman in 1949,
that had actual Federal prosecutorial experience, which I think
is a great value. Matter of fact, I know it is a value. I have
seen instances of Supreme Court rulings where errors have been
made, mostly as a result of just not understanding the system
and how it operates.
As an Assistant Solicitor General you argued 12 cases
before the Supreme Court. That is an extraordinary number.
Very, very few people in our country have had the opportunity
to do that. Very few lawyers will ever in their career do one
case much less 12.
So you did a great job, and I think that is why the ABA,
the American Bar Association has rendered their views on you.
It is a 15-member committee. All of them participate on a
Supreme Court nominee. They take this very seriously. They
interview judges with whom you work. They interview your
colleagues. They interview people who litigated against you.
They interview litigants who have lost before you as well as
those who won before you, your co-counsel. And at the
conclusion of all of that, they unanimously gave you their
highest possible rating. I think that is an important thing.
Some of us on our side of the aisle criticize the ABA. We say
they tilt a little to the left, but their analysis process and
the way they go about it provides valuable insight to this
Committee and to the people of America, that the people of the
country can know that they have interviewed a host of people
who have dealt with you in every single area of your life, and
they found you highly qualified, the best recommendation they
can give, and that is something you should take great pride in.
We do not want an activist judge. That is not what we want
in this country. By ``activist'' I mean a judge who allows his
personal views to overcome a commitment to faithfully following
the law, following the law as it is, not as you would like it
to be, good or bad, following that law. That is what we count
on. When we violate that, we undermine law, we undermine
respect for law, and endanger this magnificent heritage of law
that we have been given. From what I understand your approach
to law, you have it right, and your record indicates that.
The judicial oath you take is important. Some might say you
have to follow precedent and precedent is a very big part of
what you do, but you take the oath to swear that you will
support and defend the Constitution of the United States. You
will take that oath if confirmed, and you have already taken it
as a Third Circuit Judge. It is an oath not to decide whether a
decision is good policy or not. That is for the legislative
branch. It is not an oath to defend the wall that the Supreme
Court has enclosed sometimes around itself. It is not an oath
to avoid admitting error in previous decision. But let me be
more direct. The oath you take is not an oath to uphold
precedent whether that precedent is super duper or not. If you
love the Constitution, which I hope you do, and I intend to
inquire about that, you will enforce the Constitution as it is,
good and bad. That is your responsibility in our democracy.
We have already had this morning some matters that have
been raised, and I think are worthy of just responding to
briefly because allegations get made in these hearings, you may
never get a chance by the time this hearing is over to rebut
some of the things that have already been raised. Senator
Kennedy claimed that you have not offered an opinion or a
dissent siding with a claim of racial discrimination. I would
point him to U.S. v. Kithcart. There you made it clear that the
Constitution does not allow police officers to racially profile
black drivers. A police officer received a report that two
black males in a black sports car had committed three
robberies. Later they pulled over a driver because he was a
black man in a black sports car. You wrote that this violated
the Fourth Amendment. You stated that the mere fact that
Kithcart was black and the perpetrators had been described as
two black males was plainly insufficient.
They also may want to look at your majority opinion in
Brinson v. Vaughn, where you rule that the Constitution does
not allow prosecutors to exclude African-Americans from jurors,
and you granted the petitioner's habeas petition in that case,
reversing the conviction. You stated the Constitution
guarantees, ``that a State does not use peremptory challenges
of jurors to remove any black jurors because of his race, thus
a prosecutor's decision to refrain from discriminating against
some African-American voters does not cure discrimination
against others.''
As for dissents, you were the lone dissenter calling for an
expansive interpretation of civil rights laws. Your dissent
complained in an employer case that the majority had
substituted its own opinion for the law, and you dissented, and
later the Supreme Court vindicated you, 9-0.
I would also note you were questioned about judicial
independence. I think some of our people have mentioned that,
but an academic study of Federal Appeals Court opinions rated
you the fourth most independent judge in the Federal judiciary.
That is out of 98. They took that based on issues such as
whether or not you are most likely to disagree with judges or
agree with judges of a different political party.
Mr. Chairman, I thank you for your leadership, and look
forward to a vigorous hearing. I am confident this nominee has
the skills and graces to make an outstanding Supreme Court
Justice.
Chairman Specter. Thank you, Senator Sessions.
We are going to turn to one more Senator, Senator Feingold,
for an opening statement, and then we are going to take a 15-
minute break. We will have concluded the opening statements of
12 of our 18 Judiciary Committee members. That will leave us
four more. Then Senator Lautenberg and Governor Whitman to make
the formal presentation of Judge Alito, and then Judge Alito's
opening statement. At this time we will adjourn and we will
reconvene at 2:10.
Pardon me. We are going to proceed with you, Senator
Feingold.
[Laughter.]
Senator Feingold. Thank you, Mr. Chairman, I think.
Senator Leahy. This is called the potted plant routine,
Russ.
[Laughter.]
Chairman Specter. I am so anxious for the recess, I jumped
the gun a little.
[Laughter.]
STATEMENT OF SENATOR RUSSELL D. FEINGOLD, A U.S. SENATOR FROM
THE STATE OF WISCONSIN
Senator Feingold. Mr. Chairman, I too want to welcome our
nominee and thank him in advance for the long hours that he
will put in this week.
Judge, I do greatly admire your legal qualifications, and
of course, your record of public service, and I wish you well
here. And as with the hearing and the nomination of Chief
Justice Roberts, I approach this proceeding with an open mind.
Judge Alito, I know that as a long-time student of the law
in the Supreme Court, you appreciate the importance of the
process that we begin today. A position on the Supreme Court is
one of the highest honors and greatest responsibilities in our
country. The Constitution requires the Senate to offer its
advice and decide whether to grant its consent to your
nomination, and the Senate has duly delegated to the Judiciary
Committee the task of examining your record and hearing your
testimony and responses to questions about your views.
So it is our job in these hearings to try to get a sense
for ourselves, for our colleagues who are not on the Committee,
and for the American people, of whether you should be given the
enormous responsibility of protecting our citizens'
constitutional freedoms on the Supreme Court. So you will,
obviously, face tough questions here, Judge.
No one is entitled to a seat on the Supreme Court simply
because he has been nominated by the President. I think the
burden is actually on the nominee to demonstrate that he should
be confirmed.
We begin these hearings today at an important time. Less
than a month ago we learned that this administration has for
years been spying on American citizens without a court order
and without following the laws passed by Congress. Americans
are understandably asking each other whether our Government
believes it is subject to the rule of law. Now more than ever
we need a strong and independent judicial branch. We need
judges who will stand up and tell the executive branch it is
wrong when it ignores or distorts the laws passed by Congress.
We need judges who see themselves as custodians of the rights
and freedoms that the Constitution guarantees even when the
President of the United States is telling the country that he
should be able to decide unilaterally, unilaterally, how far
these freedoms go.
To win my support, Judge Alito will have to show that he is
up to the challenge. His instincts sometimes seem to be to
defer to the executive branch to minimize the ability of the
courts to question the Executive in national security cases, to
grant prosecutors whatever powers they seek, and to deny relief
to those accused of crimes who assert that their constitutional
rights were violated. So it will be up to Judge Alito to
satisfy the Senate that he can be fair and objective in these
kind of cases.
We need judges on the bench who will ensure that the
judicial branch of Government is the independent check on
Executive power that the Constitution requires and that the
American people expect.
In these days of corruption investigations and indictments
in Washington, we also need judges who are beyond ethical
reproach. In 1990, when the judge appeared before this
Committee in connection with this nomination to the Court of
Appeals, Judge Alito promised to recuse himself from cases
involving a mutual fund company with which he had substantial
investments, Vanguard. He kept those investments throughout his
service on the Court of Appeals and still has them today. But
in 2002 he sat on a panel in a case involving Vanguard. Since
his nomination to the Supreme Court, we have now heard
different explanations from the nominee and his supporters
about why he failed to recuse himself. Needless to say, the
shifting explanations and justifications are somewhat
troubling. I hope that we will get the full and final story in
these hearings.
Before we grant lifetime tenure to Federal judges, and
particularly Justices of the Supreme Court, we must make sure
that they have the highest ethical standards. The stakes for
this nomination could hardly be higher. Justice O'Connor, as
many have said, was the swing vote in many important decisions
in the past decade. Her successor could well be the deciding
vote in a number of cases that have already been argued this
term, that may have to be reargued after a new Justice is
confirmed. The outcome of these cases could shape our society
for generations to come.
Now, we do not have the right to know how a nominee would
rule on those cases. Indeed, we should all hope that the
nominee does not know either, but we do have a right to know
what and how a nominee thinks about the important legal issues
that have come to the Court in recent years. Commenting on past
Supreme Court decisions, in my view, would no more disqualify a
nominee from hearing a future case on a similar topic than
would a current Justice participating in those past decisions.
Mr. Chairman, it simply cannot be that the only person in
America who cannot express an opinion on a case where Justice
O'Connor cast the deciding vote, is the person who has been
nominated to replace her on the Court.
So I look forward to questioning you, Judge Alito, about
Executive power, the death penalty, employment discrimination,
criminal procedure and other important topics, and I look
forward to your candid answers. I will have to say that I was
rather pleased that the judge was actually less guarded in our
private meeting, than were the other two Supreme Court nominees
who I had had the privilege to meet. I hope he is even more
forthcoming in this hearing.
Given his long judicial record and the memos we have seen
that express his personal views on legal issues, I expect
complete answers, and I think my colleagues do too. If a
nominee expresses a personal view on a legal issue in a memo
written over a decade ago, I think we and the American people
have the right to know if he still holds that view today.
Mr. Chairman, if confirmed to the Supreme Court, Judge
Alito is likely to have a profound impact on the lives of
Americans for decades to come. That is a fact. It is clear, Mr.
Chairman, from how you have planned these hearings, that you
recognize that.
Thank you for your efforts to ensure a full and fair
evaluation of this nominee, and I not only look forward to the
questioning, but I want to note that I have caused the recess
to occur 3 minutes and 40 seconds earlier than it normally
would have.
[Laughter.]
Chairman Specter. Thank you, Senator Feingold, for your
brevity.
We will now take a 15-minute recess until 2:15.
[Recess from 2 p.m. to 2:15 p.m.]
Chairman Specter. It is 2:15. We will resume these
hearings. Next up on opening statement is Senator Graham.
Senator Graham. Shall I wait or go ahead, Mr. Chairman?
[Pause.]
Chairman Specter. Senator Graham, you may begin.
STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE
STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman, and welcome back,
Judge. I would hate for you to miss my opening statement, a
loss for the ages.
Welcome to the Committee. Welcome to one of the most
important events in your life. You have got the people that
mean the most here with you today, your family, and I know they
are proud of you, and I am certainly proud of what you have
been able to accomplish.
To say the least, you come to the Senate in interesting
political times. There is going to be a lot of talk by the
Senators of this Committee about concepts that are important to
Americans, but what I worry the most about is your time,
believe it or not, will come and go. You will not be here
forever. It may seem that way, but I think you are going to be
just fine.
I don't know what kind of vote you are going to get, but
you will make it through. It is possible you could talk me out
of voting for you, but I doubt it. So I won't even try to
challenge you along those lines. I feel very comfortable with
you being on the Supreme Court based on what I know, and the
hearings will be helpful to all of us to find out some issues
that are important to us.
We had a talk recently about Executive power. That is very
important to me. In time of war, I want the executive branch to
have the tools to protect me, my family and my country. But
also I believe even during a time of war, the rule of law
applies.
I have got some problems with using a force resolution to
the point that future Presidents may not be able to get a force
resolution from Congress if you interpret it too broadly. And
we will talk about those things and we will talk more about it.
I am going to talk a little bit about some of the points my
colleagues have been making. Everybody knows you are a
conservative. The question is are you a mainstream
conservative. Well, the question I have for my colleagues is
who would you ask to find out. Would you ask Senator Kennedy?
Probably not. If you asked me who a mainstream liberal is, I
would be your worst person to pick because I don't hang out
over there.
I suspect that most all of us, if not all of us, will vote
for you, and I would argue that we represent from the center
line to the right ditch in our party and if all of us vote for
you, you have got to be pretty mainstream. So the answer to the
question, are you a mainstream conservative, will soon be know.
If every Republican member of the Judiciary Committee votes
for you and you are not mainstream, that means we are not
mainstream. And it is a word that means what you want it to
mean. Advise and consent means what? Whatever you want it to
mean. Advise and consent means the process has got to work to
the advantage of people I like, and with people I don't want on
the Court, it is a different process. That is politics.
Every Senator will have to live within themselves as to
what they would like to see happen for the judiciary. My main
concern here is not about you. It is about us. What are we
going to be doing as a body to the judiciary when it is all
said and done?
Roe v. Wade and abortion. If I wanted to work for Ronald
Reagan, one of the things I would tell the Reagan
administration is I think Roe v. Wade was wrongly decided. They
are likely to hire me because they were trying to prove to the
Court that the Court took away from elected officials a very
important right, protecting the unborn.
I was on a news program with Senator Feinstein this
weekend, who is a terrific person. She made a very emotional,
compelling argument that she can remember back-alley abortions
and women committing suicide when abortion was illegal. I
understand that is very seared in her memory banks and that is
important to her.
Well, let me tell you there is another side to that story.
There are millions of Americans, a bunch of them in South
Carolina, who are heartsick that millions of unborn children
have been sent to certain death because of what judges have
done. It is a two-sided argument. It is an emotional event in
our society.
They are talking about filibustering maybe if you don't
give the right answer. Well, what could possibly be the right
answer about Roe v. Wade? If you acknowledge it is a precedent
of the Court, well, then you would be right. If you refuse to
listen to someone who is trying to change the way it is applied
or to overturn it and you will say here I will never listen to
them, you might talk me out of voting for you. I don't think
any American should lose the right to challenge any precedent
that the Supreme Court has issued because the judge wanted to
get on the Court.
And you may be a great fan of Roe v. Wade and you think it
should be there forever. There may be a case where someone
disagrees with that line of reasoning. What I want from the
judge is the understanding that precedent matters, but the
facts, the brief and the law is what you are going to base your
decision on as to whether or not that precedent stands, not
some bargain to get on the Court, because I can tell you if
that ever becomes a reason to filibuster, there are plenty of
people that I personally know, if it became fashionable to
stand on the floor of the Senate to stop a nominee on the issue
of abortion, who feel so deeply, so honestly held belief that
an abortion is certain death for an unborn child that they
would stand on their feet forever.
And is that what we want? Is that where we are going as a
Nation? Are we going to take one case and one issue and if we
don't get the answer we like that represents our political view
on that issue, are we going to bring the judiciary to their
knees? Are we going to say as a body it doesn't matter how
smart you are, how many cases you have decided, how many things
you have done in your life as a lawyer, forget about it, it all
comes down to this one issue?
If we do, if we go down that road, there will be no going
back, and good men and women will be deterred from coming
before this body to serve their Nation as a judge at the
highest levels. What we are saying and what we are doing here
is far more important than just whether or not Judge Alito gets
through the process.
What is the proper role of a Senator when it comes to
advising and consenting? I would argue that if we start taking
the one or two cases we cherish the most and make that a litmus
test, we have let our country down and we have changed the
historical standard.
Elections matter. Values debates occur all over this
country. They occur in Presidential elections. It is no mystery
as to what President Bush would do if he won. He would pick
people like John Roberts and Sam Alito. That is what he said he
would do. That is exactly what he has done. He has picked solid
strict constructionists, conservatives, who have long,
distinguished legal careers.
What did President Clinton do? He picked people left of the
center who worked for Democrats. And it cannot surprise the
people on the other side that the two people we picked worked
for Ronald Reagan. We liked Ronald Reagan. President Clinton
picked Ginsburg and Breyer. Justice Ginsburg was the general
counsel for the ACLU. If I am going to base my decision based
on who you represented as a lawyer, how in the world could I
ever vote for somebody that represented the ACLU?
If I am going to make my decision based on whether or not I
agree with the Princeton faculty and administration policies on
ROTC students and quotas and I am bound by that, I will get
killed at home. What Princeton does with their admission
policies and whether or not a ROTC unit should be on a campus
is an OK thing to debate; at least I hope it is OK. I think
most Americans are going to be with the group that you are
associated with, not the policies of Princeton.
The bottom line is you come here as an individual with a
life well lived. Everybody who seems to have worked with you as
a private lawyer, public lawyer and as a judge admires you,
even though they may disagree with you.
My biggest concern, members of this Committee, is if we
don't watch the way we treat people like Judge Alito, we are
going to drive good men and women away from wanting to serve.
There will be a Democratic President one day. I don't know
when, but that is likely to happen, and there will be another
Justice Ginsburg come over. If she came over in this
atmosphere, she wouldn't get 96 votes. Judge Scalia wouldn't
get 98 votes, and that is sad to me.
I hope we will use this opportunity not only to treat you
fairly, but not use a double standard. I hope we will
understand that this is bigger than you, this is bigger than
us, and the way we conduct ourselves and what we expect of you
we had better be willing to expect when we are not in power.
Thank you.
Chairman Specter. Thank you, Senator Graham.
Senator Schumer.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman.
Judge Alito, welcome to you, Mrs. Alito, your two children,
the rest of your family. I join my colleagues in congratulating
you on your nomination. If confirmed, you will be one of nine
people who collectively hold power over everyone who lives in
this country. You will define our freedom, you will affect our
security, and you will shape our law. You will determine on
some days where we pray and how we vote. You will define on
other days when life begins and what our schools may teach, and
you will decide from time to time who shall live and who shall
die. These decisions are final and appeals impossible.
That is the awesome responsibility and power of a Supreme
Court Justice, and it is therefore only appropriate that
everyone who aspires to that office bear a heavy burden when
they come before the Senate and the American people to prove
that they are worthy.
But while every Supreme Court nominee has a great burden,
yours, Judge Alito, is triply high, first because you have been
named to replace Sandra Day O'Connor, the pivotal swing vote on
a divided Court; second, because you seem to have been picked
to placate the extreme right wing after the hasty withdrawal of
Harriet Miers; and finally, and most importantly, because your
record of opinions and statements on a number of critical
constitutional questions seems quite extreme.
So, first, as this Committee takes up your nomination, we
can't forget recent history, because that history increases
your burden and explains why the American people want us to
examine every portion of your record with great care.
Harriet Miers's nomination was blocked by a cadre of
conservative critics who undermined her at every turn. She
didn't get to explain her judicial philosophy, she didn't get
to testify at the hearing, and she did not get the up-or-down
vote on the Senate floor that her critics are now demanding
that you receive. Why? For the simple reason that those critics
couldn't be sure that her judicial philosophy squared with
their extreme political agenda. They seem to be very sure of
you. The same critics who called the President on the carpet
for naming Harriet Miers have rolled out the red carpet for
you, Judge Alito. We would be remiss if we didn't explore why.
And there is an additional significance to the Miers
precedent which is this: everyone now seems to agree that
nominees should explain their judicial philosophy and ideology.
After so many of my friends across the aisle spoke so loudly
about the obligation of nominees to testify candidly about
their legal views and their judicial philosophy when the
nominee was Harriet Miers, I hope we will not see a flip-flop
now that the nominee is Sam Alito.
The second reason your burden is higher, of course, is that
you are filling the shoes of Sandra Day O'Connor. Those are big
shoes to be sure, but hers are also special shoes. She was the
first woman in the history of the Supreme Court, is the only
sitting Justice with experience as a legislator, and has been
the most frequent swing vote in a quarter century of service.
While Sandra Day O'Connor has been at the fulcrum of the
Court, you appear poised to add weight to one side. That alone
is not necessarily cause for alarm or surprise, but is
certainly a reason for pause. Are you in Justice O'Connor's
mold or, as the President has vowed, are you in the mold of
Justices Scalia and Thomas?
Most importantly, though, your burden is high because of
your record. Although I haven't made up my mind, I have serious
concerns about that record. There are reasons to be troubled.
You are the most prolific dissenter in the Third Circuit.
This morning, President Bush said Judge Alito has the
intellect and judicial temperament to be on the Court. But the
President left out the most important qualification: a
nominee's judicial philosophy.
Judge Alito, in case after case, you give the impression of
applying careful legal reasoning, but too many times you happen
to reach the most conservative result. Judge Alito, you give
the impression of being a meticulous legal navigator, but in
the end you always seem to chart a right-ward course.
Some wrongly suggest that we are being results-oriented
when we question the results you have reached. But the opposite
is true. We are trying to make sure you are capable of being
fair, no matter the identity of the party before you.
Sometimes, you give the government a free pass, but refuse to
give plaintiffs a fair shake. We need to know that Presidents
and paupers will receive equal justice in your courtroom.
If the record showed that an umpire repeatedly called 95
percent of pitches strikes when one team's players were up and
repeatedly called 95 percent of pitches balls when the other
team's players were up, one would naturally ask whether the
umpire was being impartial and fair.
In many areas, we will expect clear and straightforward
answers because you have a record on these issues; for example,
Executive power, congressional power and personal autonomy,
just to name a few. The President is not a king, free to take
any action he chooses without limitation by law.
The Court is not a legislature, free to substitute its own
judgment for that of elected bodies, and the people are not
subjects, powerless to control their own most intimate
decisions. Will your judicial philosophy preserve these
principles or will it erode them?
In each of these areas, there is cause for concern. In the
area of Executive power, Judge Alito, you have embraced and
endorsed the theory of the unitary Executive. Your deferential
and absolutist view of separation of powers raises questions.
Under this view, in times of war the President would, for
instance, seem to have inherent authority to wiretap American
citizens without a warrant, to ignore congressional Acts at
will, or to take any other action he saw fit under his inherent
powers. We need to know, when a President goes to far, will you
be a check on his power or will you issue him a blank check to
exercise whatever power alone he thinks appropriate. Right now,
that is an open question, given your stated views.
Similarly on the issue of federalism, you seem to have
taken an extreme view, substituting your own judgment for that
of a legislature. Certainly, one important case you wrote, in
Rybar v. U.S., that Congress exceeded its power by prohibiting
the possession of fully automatic machine guns. Do you still
hold these cramped views of congressional power? Will you
engage in judicial activism to find ways to strike down laws
that the American people want their elected representatives to
pass and that the Constitution authorizes?
And, of course, you have made statements expressing your
view that the, quote, ``Constitution does not protect the right
to an abortion,'' unquote. In fact, you said in 1985 that you
personally believe very strongly this is true. You also spoke
while in the Justice Department of, quote, ``the opportunity to
advance the goals of bringing about the eventual overruling of
Roe v. Wade.''
It should not be surprising that these statements will
bring a searching inquiry, as many of my colleagues have
already suggested. So we will ask you, do you still personally
believe very strongly that the Constitution does not protect a
right to an abortion? We will ask, do you view elevation to the
Supreme Court, where you will no longer be bound by High Court
precedent, as the long-sought opportunity to advance the goals
of bringing about the eventual overruling of Roe v. Wade, as
you stated in 1985?
Judge Alito, I sincerely hope you will answer our
questions. Most of the familiar arguments for ducking direct
questions no longer apply and certainly don't apply in your
case. For example, the logic of the mantra repeated by John
Roberts at his hearing that one could not speak on a subject
because the issue was likely to come before him quickly
vanishes when the nominee has a written record, as you do, on
so many subjects.
Even under the so-called Ginsburg precedent, which was
endorsed by Judge Roberts, Republican Senators and the White
House, you have an obligation to answer questions on topics
that you have written about. On the issue of choice, for
example, because you have already made blanket statements about
your view of the Constitution and your support for overruling
Roe, you have already given the suggestion of pre-judgment on a
question that will likely come before the Court. So I
respectfully submit you cannot use that as a basis for not
answering.
So I hope, Judge Alito, that when we ask you about prior
statements you have made about the law, some strong, some even
strident, you will simply not answer, in effect, no comment.
That will not dismiss prior expressions of decidedly legal
opinions as merely personal beliefs, and that will enhance
neither your credibility nor your reputation for careful legal
reasoning.
I look forward, Judge, to a full and fair hearing.
Chairman Specter. Thank you, Senator Schumer.
Senator Cornyn.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
Judge Alito, welcome to the Committee, and to your family
as well. I am a little surprised to learn that you have a
triply high burden for confirmation here. I guess we will get a
chance to explore that and the fairness of that, or whether all
nominees ought to have the same burden before the Committee.
What I want to also make sure of is that we don't hold you
to a double standard, that we don't expect of you answers to
questions that Justice Ginsburg and others declined to answer
in the interests of the independence of the judiciary and in
the interests of observing the canons of judicial ethics.
Nevertheless, we have already heard a great deal about you
and your credentials for the Supreme Court. As has been noted,
you served with distinction on the court of appeals. You have
served as a United States Attorney, and indeed you have served
your entire adult life in public service.
We have also heard a bit today--and we will hear more as
these proceedings unfold--about the testimonials from people
who have worked with you, people who know you best, whether
liberal, moderate or conservative. The judges on your court
have praised you as a thoughtful and open-minded jurist, and we
will hear more from them later in the week.
The same can be said of the dozens of law clerks who have
worked with you over the last 15 years. As you know, law clerks
are those who advise appellate judges on the cases they hear,
and you have had law clerks from all political persuasions,
from members of the Green Party, to Democrat clerks, even a
clerk that went on to serve as counsel of record for John
Kerry's campaign for President. And every single one of them
says that you will make a terrific Supreme Court Justice, that
you apply the law in a fair and even-handed manner, and that
you bring no agenda to your job as a judge.
If fairness, integrity, qualifications and an open mind
were all that mattered in this process, you would be confirmed
unanimously. But we know that is not how the process works, or
at least how it works today. We know that 22 Senators,
including 5 on this committee, voted against Chief Justice
Roberts's confirmation just a few short months ago. And my
suspicion is that you do not come here with a total level
playing field.
I am reluctantly inclined to the view that you and other
nominees of this President to the Supreme Court start with no
more than 13 votes on this Committee and only 78 votes in the
full Senate, with a solid, immovable, and unpersuadable block
of at least 22 votes against you, no matter what you say and no
matter what you do. Now, that is unfortunate for you, but it is
even worse for the Senate and its reputation as the world's
greatest deliberative body.
The question is why--with so many people from both sides of
the aisle and across the ideological spectrum supporting your
nomination--are liberal special interest groups and their
allies devoting so much time and so much money to defeat your
nomination? The answer, I am afraid, is that there are a number
of groups who really don't want a fair-minded judge who has an
openness to both sides of the argument. Rather, they want
judges who will impose their liberal agenda on the American
people--views so liberal that they cannot prevail at the ballot
box.
So they want judges who will find traditional marriage
limited to one man and one woman unconstitutional. They want
judges who will ban any trace of religious expression from the
public square. They even want judges who will prohibit
schoolchildren from reciting the Pledge of Allegiance. As I
say, none of these are mainstream positions embraced by the
American people. So the strategy is to try to impose their
agenda through unelected judges.
Judge Alito, the reason why these groups are trying to
defeat your nomination--because you won't support their liberal
agenda--is precisely why I support it. I want judges on the
Supreme Court who will not use their position to impose
personal policy preferences or a political agenda on the
American people. I want judges on the Supreme Court who will
respect the words and the meaning of the Constitution, the laws
enacted by Congress, and the laws enacted by State
legislatures.
Now, this doesn't mean, as you know, that a judge will
always reach what might be called a conservative result. It
means that judges will reach whatever result is directed by the
Constitution, by the law, and by the facts of a case. Sometimes
it might be called conservative, sometimes it might be called
liberal. But the point is that the meaning of the Constitution
and other laws should not change unless we the people change
them.
A Supreme Court appointment is not a roving commission to
rewrite our laws however you and your colleagues see fit. I
will give you one example of an area where I believe our
Supreme Court has been rewriting the Constitution for a long
time. It is an area near and dear to me and others in this
country. I am speaking of the ability of people of faith to
freely express their beliefs in the public square.
There is no doubt where the Founding Fathers stood on this
issue. They believed that people of faith should be permitted
to express themselves in public. They believed that this
country was big enough and free enough to allow expression of
an enormous variety of views and beliefs. They believed that
freedom of expression included religious views and beliefs, so
long as the government did not force people to worship in a
particular manner and remained neutral on what those views and
beliefs were.
But this country has gotten seriously off track under the
Supreme Court when it went so far as to limit the right of even
private citizens to freely express their religious views in
public. As I mentioned to you when we met early on in these
proceedings, I had an opportunity, as some have had on this
Committee, to argue a case before the U.S. Supreme Court. When
I was attorney general, I helped argue a case called Santa Fe
Independent School District v. Doe.
The school district in that case had the temerity to permit
student-led, student-initiated prayer before football games.
And, of course, someone sued. I repeat, this is student-led,
student-initiated, voluntary prayer. The Supreme Court held by
a vote of six to three that even this was unconstitutional.
The decision led the late Chief Justice Rehnquist to remark
that the Court now exhibits ``hostility to all things religious
in public life.'' It is hard to disagree with him. Depictions
or expressions of sex, violence, crime are all permitted
virtually without limit, but religion, it seems, never.
Now, this is where you come in, Judge Alito. I appreciate
your record on the Third Circuit respecting the importance of
neutrality of government when it comes to religious expression
on a voluntary basis by individual citizens. It is my sincere
hope that, when confirmed, you will persuade your colleagues to
reconsider their attitude toward religious expression and grant
it the same freedom currently reserved for almost all other
non-religious speech.
No wonder many in America seem to believe that the Supreme
Court has become one more inclined to protect pornography than
to protect religious expression. Most people in America don't
believe that ``God'' is a dirty word. But the sad fact is that
some Americans are left to wonder whether the Supreme Court
might have greater regard for it if it were.
Again, welcome to the Committee and thank you for your
continued willingness to serve our great Nation.
Chairman Specter. Thank you, Senator Cornyn.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman. Judge
Alito, welcome to you and your family before the Judiciary
Committee. You have heard time and again from my colleagues why
this seat on the Supreme Court means so much. They have quoted
the statistics of 193 5-4 decisions where Sandra Day O'Connor
was the deciding vote in 148 of those instances. She was a
critical vote in issues of civil rights, human rights, workers'
rights, women's rights, restraining the power of an
overreaching President.
If you look at the record, the enviable record which Sandra
Day O'Connor has written, you find she was the fifth and
decisive vote to safeguard Americans' right to privacy, to
require courtrooms to grant access to the disabled, to allow
the Federal Government to pass laws to protect the environment,
to preserve the right of universities to use affirmative
action, to ban the execution of children in America. And
Justice O'Connor was the fifth vote to uphold the time-honored
principle, which bears repeating, of separation of church and
state. There was real wisdom in the decision of our forefathers
in writing a Constitution that gave us an opportunity to grow
as such a diverse Nation, and we should never forget it.
Justice O'Connor has been the critical decisive vote on
many issues that go to the heart of who we are as a Nation. We
believe, many of us, that the decision on filling this vacancy
is going to tip the scales of justice on the Supreme Court one
way or the other, and that is why we are so mindful of the
importance of our task.
Yesterday, the Chicago Tribune editorialized that anyone
who questions your nomination has a heavy burden of proof. I
disagree. I believe the burden of proof is yours, Judge Alito,
the burden of demonstrating to the American people and this
Committee that you or any nominee is worthy to serve on the
highest Court, to succeed Sandra Day O'Connor.
My friend Illinois Senator Paul Simon once said as a member
of this same Committee that the test for a Supreme Court
nominee is not where he stands on any given issue. The test is
this: Will you use your power on the Court to restrict freedom
or expand it? In the simplest terms, I think Paul Simon got it
right. That is the best test because the Supreme Court is the
last refuge in America for our rights and liberties. In my
lifetime, it is the Supreme Court, not Congress, that
integrated public schools, that allowed people of different
races to marry, and established the principle that our
Government should respect the value of privacy of American
families. These decisions are the legacy of Justices who chose
to expand American freedom. If you are confirmed, Judge Alito,
will you continue their legacy?
You and I spoke about the Griswold decision in my office.
It is hard to imagine that 40 years ago people could be
convicted of a crime, fined, and sent to prison for using the
most common forms of birth control. The Supreme Court looked at
that decision and said that is just wrong. We may not find the
word ``privacy'' in the Constitution, but that is just inherent
to our freedom as Americans. It seems like a given now. Who
would even question it? But it has not been that long ago that
up here on Capitol Hill we were involved in a bitter debate
over the tragedy of Terri Schiavo. And Republican congressional
leaders threatened Federal judges with impeachment if they did
not agree to intervene into that family's painful personal
decision. We see it in attempts on Capitol Hill to impose gag
rules on doctors on what they can say to their patients about
family planning. And we certainly see it now with an effort by
this Government to tap our phones, invade our medical records,
credit information, library records, and the most sensitive
personal information in the name of national security.
Now, Justice O'Connor was the critical fifth vote to
protect our right of privacy. We want to know whether you will
be that vote as well. You were the only judge on your court to
authorize a very intrusive search of a 10-year-old girl. You
were the only judge on your court who voted to diminish the
right of privacy in the case of Planned Parenthood v. Casey, a
position that was specifically rejected by the Supreme Court.
And as a Government lawyer, you wrote that you personally
believed very strongly the Constitution does not protect the
right to an abortion.
Like many, I have thought about this issue of abortion time
and again. It is not an easy issue for most people. I have
thought about the law and the impact of my personal religious
beliefs and feelings. I have thought about the real lives of
people and the tragic experiences of the women that I have met.
And I have come to believe over the years that a woman should
be able to make this agonizing decision with her doctor and her
family and her conscience and that we should be very careful
that we don't make that decision a crime except in the most
extreme circumstances.
There is also the issue of personal privacy when it comes
to the Executive power. Throughout our Nation's history, during
times of war, whether it was habeas corpus in the Civil War,
the Alien and Sedition Acts in World War I, or Japanese
internment camps in World War II, Presidents have gone too far.
And in going too far, they have taken away the individual
rights of American citizens. The last stop to protect those
rights and liberties is the Supreme Court. That is why we want
to make certain that when it comes to the checks and balances
of the Constitution, you will stand with our Founding Fathers
in protecting us from a Government or a President determined to
seize too much power in the name of national security.
As a Government lawyer, you pushed a policy of legislative
construction designed to make congressional intent secondary to
Presidential intent. You wrote, and I quote, ``The President
will get the last word on questions of interpretation.'' In
speeches to the Federalist Society, you have identified
yourself as a strong proponent of the so-called unitary
Executive theory. That is a marginal theory at best, and yet it
is one that you have said you believe in.
This is not an abstract debate. The Bush administration has
repeatedly cited this theory to justify its most controversial
policies in the war on terrorism. Under this theory, the Bush
administration has claimed the right to seize American citizens
in the United States and imprison them indefinitely without
charge. They have claimed the right to engage in torture, even
though American law makes torture a crime. Less than 2 weeks
ago, the White House claimed the right to set aside the McCain
torture amendment that passed the Senate 90-9. What was the
rationale? The unitary Executive theory, which you have
supported.
In the Hamdi case, Justice O'Connor wrote for the
plurality, and it has been quoted many times: ``A state of war
is not a blank check for the President when it comes to the
rights of the Nation's citizens.'' If you are confirmed, Judge
Alito, who will inspire your thinking if this President or any
President threatens our fundamental constitutional rights? Will
it be the Federalist Society or will it be Sandra Day O'Connor?
Two months ago, Rosa Parks was laid to rest. Her body laid
in state in the Capitol Rotunda, a fitting tribute to the
mother of our modern civil rights movement. Her courage is well
known. The courage of Federal Judge Frank Johnson, whom we
talked about, is well known as well. He was the one who gave
the legal authority for the right to march from Selma to
Montgomery, and he suffered dearly for it. He was ostracized
and rejected. His life was threatened as a result of it.
When we met in my office, Judge Alito, you told me about
how your father as a college student was almost expelled for
standing up to the college president who decided that the
school basketball team should not use its African-American
players against an all-white opponent. That university
president did not want to offend their all-white opponent, but
your dad stood up, and you were so proud of that moment in your
family history. I admire your father's courage as well. But
just as we do not hold the son responsible for the sins of the
father, neither can we credit the son for the courage of the
father. As Supreme Court Justice, would you have the courage to
stand up for civil rights even if it is unpopular?
We want to understand what you meant in 1985 when you said
from the heart that you disagreed with the Warren Court on
reapportionment, the one man/one vote principle. That was a
civil rights decision. We want you to explain your membership
in an organization that you highlighted at Princeton University
that tried to challenge the admission of women and minorities.
And I think we want to make certain of one thing. We want to
make certain that every American who stood in silent tribute to
Rosa Parks hopes that you will break your silence and speak out
clearly for the civil rights that define our unity as a Nation.
There have been many controversial cases alluded to here.
Some people have questioned, What is the difference? What
difference in my life does it make if Sam Alito is on the bench
or if he isn't? Why would I care if it is a narrow
interpretation or a broad interpretation of the law? How does
it affect my life? We know it affects everyone's life. We were
reminded just very recently with the tragedy that was in the
headlines. In one of your dissents, you would have allowed a
Pennsylvania coal mine to escape worker safety and health
requirements required by Federal law. Last week's tragedy at
the Sago mine reminds us that such a decision could have life
and death consequences.
Judge Alito, millions of Americans are concerned about your
nomination. They are worried that you would be a judicial
activist who would restrict our rights and freedoms. During
your hearing, you will have a chance to respond, and I hope you
do. More than any recent nominee, your speeches, your writings,
your judicial opinions make it clear that you have the burden
to prove to the American people that you would not come to the
Supreme Court with any political agenda. Clear and candid
answers are all that we ask.
I sincerely hope you can convince the U.S. Senate and the
American people that you will be a fifth vote on the Supreme
Court that the American people can trust to protect our most
basic important freedoms and preserve our time-honored values.
Thank you very much.
Chairman Specter. Thank you, Senator Durbin.
Senator Brownback?
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you, Mr. Chairman.
Welcome, Judge Alito, your wife and family. Delighted to
have you here. You only have two more pitchers, and then you
get a bat. So I am sure people will be happy to hear from you.
Mr. Chairman, before I go forward with my statement, I
would like to enter into the record a summary of four cases
that Judge Alito has ruled on where he backed employees
claiming racial discrimination. It has been entered a couple of
times here that he has not ruled in favor of people claiming
racial discrimination, and I have a summary of four cases where
he has, and I want to enter that into the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Brownback. Judge Alito, I welcome you to the
hearing. This is an extraordinary process. It is a fabulous
process and a chance for a discussion with you, with the
American public, about the role of the judiciary in our society
today. It has become an ever-expanding and important discussion
because of the expanding role of the courts in recent years in
American society. When the courts, improperly, I believe,
assume the power to decide more political than legal issues in
nature, the people naturally focus less on the law and more on
the lawyers that are chosen really to administer the law. Most
Americans want judges who will stick to interpreting the law
rather than making it. It is beyond dispute that the
Constitution and its Framers intended this to be the role of
judges.
For instance, although he was perhaps the leading advocate
for expansive Federal power, you can look at Founding Father
Alexander Hamilton, nevertheless assuring--assuring--the
countrymen in Federalist 78 that the role of the Federal courts
under the proposed Constitution would be limited. He said,
``The courts must declare the sense of the law, and if they
should be disposed to exercise will instead of judgment, the
consequences would equally be the substitution of their
pleasure to that of the legislative body.''
It seems like we are back at an old debate--the role of the
courts--and I believe you and others would look and say that
the role of the courts is limited, and it is not to decide
political matters.
Chief Justice Marshall later explained in Marbury v.
Madison that the Constitution permitted Federal courts neither
to write nor execute the laws but, rather, to say what the law
is. That narrow scope of judicial power was the reason the
people accepted the idea that the Federal courts could have the
power of judicial review. That is the ability to decide whether
a challenged law comports with the Constitution.
The people believed that while the courts would be
independent, they would defer to the political branches on
policy issues. This is the most foundational and fundamental of
issues. And yet we are back in discussing it because of the
role of the judiciary expanding in this society today.
It may seem ironic, but the judicial branch preserves its
legitimacy through refraining from action on political
questions. That concept was put forward best by Justice
Frankfurter, appointed by President Roosevelt. He said,
``Courts are not representative bodies. They are not designed
to be a good reflex of a democratic society. Their judgment is
best informed and, therefore, most dependable within narrow
limits.''
Now, I want to take on this point of the reservation of
certain seats on the bench for certain philosophies, which it
seems as if we have heard a great deal about today that you
need to be like Sandra Day O'Connor in judicial philosophy to
be able to go on her seat on the bench. Some interest groups
have put forward that philosophy and argued that you deserve
closer scrutiny because you don't appear to have the same
philosophy, or even opposition if it is not determined that you
do not have the same judicial philosophy. This testimony
suggests that that would change the ideological balance, that
you would change that ideological balance, therefore, you
should not be approved. And I say that that notion is not
anywhere in the understanding of the role of the judges. It
creates a double standard for your approval and looks
conveniently--it looks suspiciously convenient for the
opposition to put forward.
Seats on the bench are not reserved for causes or
interests. They are given to those who will uphold the rule of
law so long as the nominee is well qualified to interpret and
apply the law. This has long been the case of the Supreme
Court. And I want to note here that historically the makeup of
the Court has changed just as elected branches have changed. In
fact, nearly half of the Justices, 46 of 109, who have served
on the Supreme Court replaced Justices appointed by a different
political party. In recent years, even as the Court has become
an increasingly political body, the Senate is not focused on
preserving any perceived ideological balance when Democrat
Presidents have appointed people to the Court. And the best
example of that is the Senate rejecting that notion when Ruth
Bader Ginsburg came in front of the Senate and was approved 96-
3 to be on the Supreme Court to replace conservative Justice
Byron White. This was in 1993.
Now, Justice Ginsburg, it was noted earlier, was the
general counsel for the ACLU, certainly a liberal group. It was
abundantly clear during the confirmation hearing that Ginsburg
would swing the balance of the Court to the left. But because
President Clinton won the election and because Justice Ginsburg
clearly had the intellectual ability and integrity to serve on
the Court, she was confirmed.
During her hearing, hardly any mention was made about
balance with Justice White. The only discussion that occurred
about Justice White was when Senator Kohl, our colleague, asked
her what she thought of Justice White's career. And she started
off by saying that she was not an athlete.
History has shown that she did, in fact, dramatically
change the balance of the Court in many critical areas, such as
abortion, the privacy debate expansion, and child pornography.
And I have behind me three of the key cases where Justice White
ruled one way, even wrote the majority opinion, and Justice
Ginsburg ruled the other way with the majority. You talk about
a swing of balance, and yet the issue was not even raised at
Justice Ginsburg's confirmation hearing, and yet now it seems
as if that is the paramount issue--not only the paramount
issue, it actually makes you have to go to a higher standard to
be approved. And that is just simply not the way we have
operated in the past, nor is it the way we should operate now.
As I stated at Justice Roberts's hearing, the Court has
injected itself into many of the political debates of our day,
and as my colleague Senator Cornyn has mentioned, the Court has
injected itself in the definition of marriage, deciding whether
or not human life is worth protecting, permitting Government to
transfer private property from one person to another, even
interpreting the Constitution on the basis of foreign and
international laws.
The Supreme Court has also issued and never reversed a
number of decisions that are repugnant to the Constitution's
vision of human dignity and equality. Although cases like Brown
v. Board of Education in my State are famous for correcting
constitutional and court errors, there remain several other
instances in which the Court strayed and stayed beyond the
Constitution and the laws of the United States. Among the most
famous of these Supreme Court cases of exercise of political
power, I believe, are the cases of Roe v. Wade and Doe v.
Bolton, two 1973 cases based on false statements which created
a constitutional right to abortion. And you can claim whatever
you want to of being pro-life or pro-choice, but the right to
abortion is not in the Constitution. The Court created it. It
created a constitutional right. And these decisions removed a
fully appropriate political judgment from the people of several
States and has led to many adverse consequences.
For instance, it has led to the almost complete killing of
a whole class of people in America. As I noted to my colleagues
in the Roberts hearings, this year--this year--between 80 to 90
percent of the children in America diagnosed with Down syndrome
will be killed in the womb simply because they have a positive
genetic test--which can be wrong and is often wrong, but they
would have a positive genetic test for Down syndrome and they
will be killed.
America is poorer because of such a policy. We are at our
best when we help the weakest. The weak make us strong. To kill
them makes us all the poorer, insensitive, calloused, and
jaded. Roe has made it not only possible but has found it
constitutional to kill a whole class of people simply because
of their genetic makeup. This is the effect of Roe.
I think this is a proper issue for us to consider, and the
judge you are replacing noted one time ``that the Court's
unworkable scheme for constitutionalizing abortion has had this
institutionally debilitating effect should not be surprising
since the Court is not suited to the expansive role it has
claimed for itself in the series of cases that began with
Roe.''
You will have many issues in front of you, many that we
will not discuss here in front of this committee. I think it
unfortunate that we only narrow in on so few of the cases that
you are likely to hear in front of you. And yet that is the
nature of the day because they are the hot, political, heat-
seeking cases. You are undoubtedly qualified. You are cited by
the ABA to be unanimously well qualified. I look forward to a
thorough discussion and a hopeful approval of you to be able to
join the Supreme Court of the United States.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Brownback.
We now move to the final opening statement. When we finish
the statement of Senator Coburn, we are going to go right to
the presenters, Senator Lautenberg and Governor Whitman. So I
would like them to be on notice that we will be doing that in
just a few moments, and following Senator Lautenberg and
Governor Whitman, we will be hearing from Judge Alito.
Senator Coburn, the floor is yours.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Thank you. Judge Alito, welcome. I know you
are tired of this, and I will try to be as brief as possible.
One of the advantages of going last is to be able to hear
what everybody else has said, and as I have listened today, we
have talked about the unfortunate, the frail. The quotes have
been ``fair shake for those that are underprivileged.'' We have
heard values, ``strong, free, and fair,'' ``progress of our
judiciary.'' We have heard ``the vulnerable, the more
vulnerable, the weak, those who suffer.'' We have heard of an
``Alito mold'' that has to be in the mold of somebody else. And
as a practicing physician, the one disheartening thing that I
hear is these very common words, this ``right to choose,'' and
how we sterilize that to not talk about what it really is.
I have had the unfortunate privilege of caring for over 300
women who have had complications from this wonderful right to
choose to kill their unborn babies. And that is what it is. It
is a right of convenience to take the life. And the question
that arises as we use all these adjectives and adverbs to
describe our positions as we approach a Supreme Court nominee
is where are we in America when we decide that it is legal to
kill our unborn children. I mean, it is a real question for us.
I debate honestly with those who disagree with me on this. It
is a real issue of measurement of our society when we say it is
fine to destroy unborn life who has a heartbeat at 16 days
post-conception; 39 days post-conception you can measure the
brain waves and there is pain felt. The ripping and tearing of
an unborn child from its mother's womb through the hands of
another and we say that is fine, you have a constitutional
right to do that.
How is it that we have a right of privacy and due process
to do that, but you do not have the right, as rejected
unanimously by the Supreme Court in 1997, to take your own life
in assisted suicide. You know, how is it that we have sodomy
protected under that due process, but prostitution unprotected.
It is schizophrenic. And the reason it is schizophrenic is
there is no foundation for it whatsoever other than a falsely
created foundation that is in error.
I don't know if we will ever change that. It is a measure
of our society. But the fact is you cannot claim in this Senate
hearing to care for those that are underprivileged, those that
are at risk, those that are vulnerable, those that are weak,
those that are suffering, and at the same time say I don't care
about those who have been ripped from the wombs of women and
the complications that have come about throughout that.
So the debate for the American public and the real debate
here is about Roe. Don't let it--we are going to go off in all
sorts of directions, but the decisions that are going to be
made in votes on the Committee and the votes on the floor is
going to be about Roe, whether or not we as a society have
decided that this is an ethical process, that we have this
convenient process that, if we want to rationalize one moral
choice with another, we just do it through abortion, this
taking of the life--of life of an unborn child.
I asked Chief Justice Roberts about this definition of
life. You know, what is life? The Supreme Court cannot figure
it out or does not want to figure it out. The fact that we know
that there is no life if there is no heartbeat and brain waves,
we know that in every State and every territory. But when we
have heartbeat and brain waves, we refuse to accept it as the
presence of life. This lack of logic of which we approach this
issue because we like and we favor convenience over ethics, we
favor convenience over the hard parts of life that actually
make us grow.
Senator Brownback talked about those with disabilities that
are destroyed in the womb because of a genetic test that is
sometimes wrong. I would put forward that we all have
disabilities. Some of us, you just can't see it. And yet who
makes the decision on whether or not we're qualified or not. We
have gone down a road to which we don't have the answers for.
That is why we have the schizophrenic decisions coming out of
the Supreme Court that don't balance logically with one versus
another decision.
So my hope as we go through this process is to not confuse
it with easy words and really be honest and straightforward
about what this is about. I firmly believe that the Court
should take another direction on many of these moral issues
that face us. If we are to honor the heritage of our country,
whether it be in terms of religious freedom, whether it be in
terms of truly protecting life, protecting not just the unborn
but who comes next, the infirm, the elderly, the maimed, the
disabled--that is who comes next. As we get into the budget
crunch of taking care of those people in the years to come, I
believe we ought to have that debate honestly and openly. But
the fact is we are going to cover it with everything except the
real fact is we have made a mistake going down that road in
terms of saying we can destroy our unborn children and there
are no consequences to it.
So I welcome you. This is a difficult process for you and
your family. I am hopeful that you will be treated fairly. I am
very disturbed at the picture that was painted by Senator
Kennedy that you are not a man of your word, that you are
dishonest. The implication that you are not reliable I don't
think is a fair characterization of what I have read. And I
look forward to you being able to give answers as you can to
your philosophy. The real debate is we have had an activist
Court, and the American people do not want an activist Court.
And the real fear from those who might oppose you is that you
will bring the Court back within a realm of where the American
people might want us to be with the Supreme Court, one that
interprets the law, equal justice under the law, but not
advancing without us advancing, the legislative body advancing
ahead of you.
I welcome you. I return the balance of my time, and I look
forward to your introduction and your opening statement.
Chairman Specter. Thank you very much, Senator Coburn.
We will now turn to our presenting witnesses, Senator
Lautenberg and Governor Whitman. In accordance with our
standing rules of the Committee, the presenters will each have
5 minutes. They have been so informed, and we first welcome our
colleague, Senator Frank Lautenberg, to present Judge Alito.
PRESENTATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO
BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED
STATES, BY HON. FRANK LAUTENBERG, A U.S. SENATOR FROM THE STATE
OF NEW JERSEY
Senator Lautenberg. Thank you, Mr. Chairman, and Senator
Leahy, colleagues on this Committee. Thank you for the
opportunity to testify here today. John Corzine, U.S. Senator,
and now Governor-elect in New Jersey, wanted to be here, but
transition duties in Trenton prevent him from doing so.
Now, I have been honored to serve in the U.S. Senate for 21
years, and I am convinced that our duty to provide advice and
consent for Justices of the Supreme Court is our most important
constitutional responsibility. Our mandate is to be a Nation of
laws, and the Supreme Court is the place where we look to
safeguard our civil rights and our individual liberties.
But I believe that Justices must recognize that our
Constitution is an 18th century document that needs to be
applied in the context of the 21st century. We also depend on
the Supreme Court to uphold the integrity of our Government. So
I am privileged to have the opportunity to introduce Sam Alito,
Jr., to this Committee, and his beautiful family that he
brought along to fortify his candidacy.
Judge Alito was born and raised in the great State of New
Jersey. Our State has a legacy of producing outstanding
jurists, most notably the late William J. Brennan, who ushered
in our Nation's re-commitment to civil rights in the latter
half of the 20th century. Another distinguished jurist, Justice
Antonin Scalia, also was born in New Jersey.
In 1950, Sam Alito was born in our State's capital city,
Trenton, New Jersey, to a family of worthy achievement. Judge
Alito's father--I am moving too quickly here--Judge Alito's
father was an immigrant from Italy who taught history in high
school and later ran the New Jersey Office of Legislative
Services, which is similar to our own congressional Research
Service, in that it provides objective, unbiased information to
the legislature. Judge Alito's mother was a librarian, teacher
and school principal, and she is now 91 and still, as I
understand it, residing in the family home in Hamilton, New
Jersey.
From his parents, Judge Alito learned the importance of
education and integrity. Judge Alito and his sister went to
public school in Hamilton, New Jersey, where they both joined
the debating team. It seemed like the debating experience paid
off, as both he and his sister have excelled in the legal
profession.
Sam Alito then went on to Princeton University, where his
yearbook entry predicted that one day he would warm a seat on
the Supreme Court. He graduated from Yale School in 1975, and
then served as a clerk for Circuit Court Judge Leonard Garth,
with whom he currently serves.
In 1977, Sam Alito joined the U.S. Attorney's office in
Newark, where he met his future wife, Martha, who is present
here today. They later moved to Washington, where Sam Alito
served as an assistant to the Solicitor General and later in
the Department of Justice Office of Legal Counsel.
In 1987, Judge Alito returned home to New Jersey after
President Reagan appointed him U.S. Attorney for the District
of New Jersey. He was a strong prosecutor, and nobody was
surprised when President George H.W. Bush appointed him to the
Third Circuit Court in 1990, and I had the privilege of
introducing him then as well.
Judge Alito's accomplishments in life are the embodiment of
the American dream. I am honored today to introduce him to the
Committee. He is a young man. If the Senate confirms him for a
lifetime appointment to the Supreme Court, he could serve for
three decades, or even longer, especially judging it from my
point of view. His decisions would affect our rights, the
rights of our children, our grandchildren, and other future
generations.
Mr. Chairman, you know well it is the job of this Committee
to evaluate Judge Alito's qualifications and fitness for the
Court, including his views on legal issues. And I know every
member of the Committee takes that obligation seriously, and I
trust that Judge Alito will be forthcoming and cooperative in
this process. I have had a chance to meet him. I know that he
responded to the questions that I put to him. Maybe they were
too easy, but he responded very well to them.
I thank you, Mr. Chairman. I am pleased to be here with our
former Governor, Christie Whitman, and we haven't sat at a
table together for a long time, but it is a good opportunity to
do so.
Thank you.
Chairman Specter. Senator Lautenberg, do you care to make a
recommendation on the nominee?
Senator Lautenberg. I care to present the evidence, just
the evidence, Mr. Chairman, and we will let the record speak
for itself.
Chairman Specter. Our next presenter is Governor Whitman,
distinguished two-term Governor for the State of New Jersey,
and in the Cabinet of President Bush as Administrator of the
Environmental Protection Agency.
We welcome you here, Governor Whitman, and look forward to
your testimony.
PRESENTATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO
BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED
STATES, BY CHRISTINE TODD WHITMAN, FORMER GOVERNOR OF NEW
JERSEY, AND FORMER ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION
AGENCY
Governor Whitman. Thank you, Mr. Chairman. It is a pleasure
to be here today with Senator Lautenberg to introduce Judge
Samuel A. Alito, Jr., and I do urge your support for his
nomination to the Supreme Court.
I won't go into his family background. Senator Lautenberg
has done that--save to mention one member of the family that he
didn't, which is that the Judge's sister, Rosemary, is a
nationally recognized employment attorney and someone who is
recognized as part of a family that has devoted itself to
public service and continues to do that.
Judge Alito personifies the motto of the civic pride
embodied in the slogan of his hometown, ``Trenton makes, the
world takes.'' And with the consent of the Senate, one of the
most important bodies in the world, the U.S. Supreme Court, can
take a proud product of Trenton, New Jersey, into their
chambers.
But I am not here to discuss Judge Alito's family
background or his State ties. I am here to discuss his own
history of achievement and his potential to be a great
Associate Justice of our Supreme Court.
Sam Alito has excelled at everything he has undertaken. He
was an exceptional student at Princeton University and Yale Law
School, an outstanding young attorney at the Justice
Department, an accomplished United States Attorney, and for the
past 15 years has been a respected and exemplary Federal
Appeals Court Judge.
The American Bar Association just gave him their highest
rating for his seat as Justice, and in his past two appearances
before the Senate for confirmation, he has received unanimous
support.
There is, however, more to my support of Judge Alito. Like
other Americans, I have read many articles dissecting positions
Judge Alito has taken throughout his career, trying to discern
how he might decide on issues likely to appear before the
Supreme Court that he would confront as a Justice. I too have
examined the record. In the final analysis, my decision to
support Judge Alito for this position is not based on whether I
agree with him on a particular issue or set of issues or on his
conformity with any particular political ideology. In fact,
while we may agree on some political issues, I know there are
others on which we disagree. Nevertheless, one's agreement or
disagreement on a political question is, after all, ultimately
irrelevant to the issue of whether or not Judge Alito should
serve as an Associate Justice of the Supreme Court.
The Court's role is not to rule based on Justices' personal
persuasions, rather on persuasive arguments grounded on fact,
those facts presented in that particular case, and on their
interpretation of the Constitution. Those decisions are, of
course, grounded in the hard reality of disputed fact and the
messiness of the real world, but they are also guided by
principles of law and justice which have long been treasured by
the people of this country. We should look for Justices who
understand that instinctively in the very core of their being.
I saw this trait in Judge Alito when he served on the Appeals
Court during my terms as Governor, and I have every reason and
every confidence that he will exhibit the same as a Supreme
Court Justice.
Policy in the United States is defined through the laws
crafted by the legislative branch of Government and carried out
by the executive. Our judges make decisions based on their
interpretation of the intent of those laws. We do not want
Justices to conform their decisions' ideologies. We do want
Justices whose opinions are shaped by the facts before them and
by their understanding of the Constitution. We should also look
for Justices who possess the necessary qualities of intellect
and humility, desirable in those with great responsibility and
who can express their thinking clearly and in understandable
language. While we should expect the Justices will hold
philosophies that will guide their decisions, we should equally
expect that they will not hold ideologies that will
predetermine their decisions. That is the genius of our system.
Mr. Chairman, some have suggested that Judge Alito has an
ideological agenda. I believe that an honest and complete
review of his record as a whole will find that his only agenda
is fidelity to his judicial craft. If Judge Alito has a bias,
it is in favor of narrowly drawn opinions that respect
precedent and reflect the facts before him.
Members of the Committee, yours is an extraordinary
responsibility. Decisions by our Supreme Court will affect the
lives of Americans for generations to come. As politicians,
whether current or retired, we all have deeply held positions
we want to protect. When I was Governor, it fell to me five
times to appoint members of the New Jersey State Supreme Court.
One thing that experience taught me was that it is virtually
impossible to find judges who will act as you would act were
you in their position. That is as it should be. Your
responsibility is to the extent possible to determine whether
or not the nominee before you has the legal background,
intelligence and integrity to be a credit to the Court.
Sam Alito has been a model as a Federal Appeals Court
Judge. He has shown that he has the intellect, the experience
and the temperament to serve with true distinction. I have
every confidence he will be a balanced, fair and thoughtful
Justice. I urge this Committee to favorably report his
nomination to the U.S. Senate.
Thank you very much.
Chairman Specter. Thank you very much, Governor Whitman.
Without objection, the statement of Senator Corzine will be
made a part of the record.
We appreciate your coming, Senator Lautenberg, appreciate
your coming Governor Whitman.
Judge Alito, if you will resume center stage. Judge, you
can remain standing. We now come to the formal swearing in of
the nominee. I count 41 cameras in the well.
[Laughter.]
Chairman Specter. And there are just behind you, a grouping
of cameras, seven in number, and I see three more. So you are
well up to 50, which exceeds the number present, only 28, for
Chief Justice Roberts. So that may be an omen. I am stalling
for time a little bit here to allow the photographers to
position themselves. They have sat, if not patiently,
impatiently, all day. We may move the swearing in to the
beginning of the ceremony in the future so they can all go out
and do something productive.
[Laughter.]
Chairman Specter. If you would raise your right hand, do
you solemnly swear that the testimony you will give before the
Committee of the Judiciary of the U.S. Senate will be the
truth, the whole truth and nothing but the truth, so help you
God?
Judge Alito. I do.
Chairman Specter. Thank you, Judge Alito. You may be
seated, and we welcome whatever opening comments you care to
make.
STATEMENT OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO BE
AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Judge Alito. Thank you very much, Mr. Chairman. I am deeply
honored to appear before you. I am deeply honored to have been
nominated for a position on the Supreme Court, and I am humbled
to have been nominated for the seat that is now held by Justice
O'Connor. Justice O'Connor has been a pioneer, and her
dedicated service of the Supreme Court will never be forgotten,
and the people of the country certainly owe her a great debt
for the service that she has provided.
I am very thankful to the President for nominating me, and
I am also thankful to the members of this Committee and many
other Senators who took time from their busy schedules to meet
with me. That was a great honor for me, and I appreciate all of
the courtesies that were extended to me during those visits.
And I want to thank Senator Lautenberg and Governor Whitman for
coming here today and for their kind introductions.
During the previous weeks, an old story about a lawyer who
argued a case before the Supreme Court has come to my mind, and
I thought I might begin this afternoon by sharing that story.
The story goes as follows:
This was a lawyer who had never argued a case before the
Court before, and when the argument began, one of the Justices
said, ``How did you get here?'' meaning how had his case worked
its way up through the court system. But the lawyer was rather
nervous, and he took the question literally, and he said--and
this was some years ago. He said, ``I came here on the
Baltimore and Ohio Railroad.''
This story has come to my mind in recent weeks because I
have often asked myself how in the world did I get here. And I
want to try to answer that today and not by saying that I came
here on I-95 or on Amtrak.
I am who I am in the first place because of my parents and
because of the things that they taught me, and I know from my
own experience as a parent that parents probably teach most
powerfully not through their words but through their deeds. And
my parents taught me through the stories of their lives, and I
don't take any credit for the things that they did or the
things that they experienced. But they made a great impression
on me.
My father was brought to this country as an infant. He lost
his mother as a teenager. He grew up in poverty. Although he
graduated at the top of his high school class, he had no money
for college, and he was set to work in a factory. But at the
last minute, a kind person in the Trenton area arranged for him
to receive a $50 scholarship, and that was enough in those days
for him to pay the tuition at a local college and buy one used
suit. And that made the difference between his working in a
factory and going to college.
After he graduated from college, in 1935, in the midst of
the Depression, he found that teaching jobs for Italian-
Americans were not easy to come by, and he had to find other
work for a while. But eventually he became a teacher, and he
served in the Pacific during World War II, and he worked, as
has been mentioned, for many years in a nonpartisan position
for the New Jersey Legislature, which was an institution that
he revered.
His story is a story that is typical of a lot of Americans,
both back in his day and today, and it is the story, as far as
I can see it, about the opportunities that our country offers
and also about the need for fairness and about hard work and
perseverance and the power of a small good deed.
My mother is a first-generation American. Her father worked
in the Roebling Steel Mill in Trenton, New Jersey. Her mother
came from a culture in which women generally did not even leave
the house alone, and yet my mother became the first person in
her family to get a college degree. She worked for more than a
decade before marrying. She went to New York City to get a
master's degree, and she continued to work as a teacher and a
principal until she was forced to retire. Both she and my
father instilled in my sister and me a deep love of learning.
I got here in part because of the community in which I grew
up. It was a warm but definitely an unpretentious, down-to-
earth community. Most of the adults in the neighborhood were
not college graduates. I attended the public schools. In my
spare time, I played baseball and other sports with my friends.
And I have happy memories and strong memories of those days and
good memories of the good sense and the decency of my friends
and my neighbors.
And after I graduated from high school, I went a full 12
miles down the road, but really to a different world, when I
entered Princeton University. A generation earlier, I think
that somebody from my background probably would not have felt
fully comfortable at a college like Princeton, but by the time
I graduated from high school, things had changed. And this was
a time of great intellectual excitement for me. Both college
and law school opened up new worlds of ideas. But this was back
in the late 1960s and early 1970s. It was a time of turmoil at
colleges and universities. And I saw some very smart people and
very privileged people behaving irresponsibly, and I couldn't
help making a contrast between some of the worst of what I saw
on the campus and the good sense and the decency of the people
back in my own community.
I am here in part because of my experiences as a lawyer. I
had the good fortune to begin my legal career as a law clerk
for a judge who really epitomized open-mindedness and fairness.
He read the record in detail in every single case that came
before me. He insisted on scrupulously following precedents,
both the precedents of the Supreme Court and the decisions of
his own court, the Third Circuit. He taught all of his law
clerks that every case has to be decided on an individual
basis, and he really didn't have much use for any grand
theories.
After my clerkship finished, I worked for more than a
decade as an attorney in the Department of Justice, and I can
still remember the day as an Assistant U.S. Attorney when I
stood up in court for the first time and I proudly said, ``My
name is Samuel Alito, and I represent the United States in this
court.'' It was a great honor for me to have the United States
as my client during all of those years.
I have been shaped by the experiences of the people who are
closest to me, by the things I have learned from Martha; by my
hopes and my concerns for my children, Phillip and Laura; by
the experiences of members of my family, who are getting older;
by my sister's experiences as a trial lawyer in a profession
that has traditionally been dominated by men. And, of course, I
have been shaped for the last 15 years by my experiences as a
judge of the court of appeals.
During that time, I have sat on thousands of cases.
Somebody mentioned the exact figure this morning. I don't know
what the exact figure is, but it is way up in the thousands.
And I have written hundreds of opinions. And the members of
this Committee and the members of their staff who have had the
job of reviewing all of those opinions really have my sympathy.
[Laughter.]
Judge Alito. I think that may have constituted cruel and
unusual punishment.
I have learned a lot during my years on the Third Circuit,
particularly, I think, about the way in which a judge should go
about the work of judging. I have learned by doing, by sitting
on all of these cases, and I think I have also learned from the
examples of some really remarkable colleagues.
When I became a judge, I stopped being a practicing
attorney, and that was the big change in role. The role of a
practicing attorney is to achieve a desirable result for the
client in the particular case at hand. But a judge can't think
that way. A judge can't have any agenda. A judge can't have any
preferred outcome in any particular case. And a judge certainly
doesn't have a client. The judge's only obligation--and it's a
solemn obligation--is to the rule of law, and what that means
is that in every single case, the judge has to do what the law
requires.
Good judges develop certain habits of mind. One of those
habits of mind is the habit of delaying reaching conclusions
until everything has been considered. Good judges are always
open to the possibility of changing their minds based on the
next brief that they read or the next argument that is made by
an attorney who is appearing before them or a comment that is
made by a colleague during the conference on the case, when the
judges privately discuss the case.
It has been a great honor for me to spend my career in
public service. It has been a particular honor for me to serve
on the court of appeals for these past 15 years because it has
given me the opportunity to use whatever talent I have to serve
my country by upholding the rule of law. And there is nothing
that is more important for our Republic than the rule of law.
No person in this country, no matter how high or powerful,
is above the law, and no person in this country is beneath the
law.
Fifteen years ago, when I was sworn in as a judge of the
court of appeals, I took an oath. I put my hand on the Bible
and I swore that I would administer justice without respect to
persons, that I would do equal right to the poor and to the
rich, and that I would carry out my duties under the
Constitution and the laws of the United States. And that is
what I have tried to do to the very best of my ability for the
past 15 years, and if I am confirmed, I pledge to you that that
is what I would do on the Supreme Court.
Thank you.
Chairman Specter. Thank you very much, Judge Alito, for
those opening comments.
We will adjourn at this point, and we will resume tomorrow
morning at 9:30, when we will start the first round of
questioning with each Senator on round one having 30 minutes.
[Whereupon, at 3:40 p.m., the Committee was adjourned.]
[The biographical information of Judge Alito follows.]
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NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
TUESDAY, JANUARY 10, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room 216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. The Judiciary Committee will now proceed
with the confirmation hearing of Judge Alito for the Supreme
Court.
Before beginning the first round of questioning, just a
little review as to our procedure. As announced, there will be
a 30-minute allocation for each Senator. We intend to work
rather late this afternoon, perhaps even into the early
evening. I do not know that it is possible to complete the
first round of questioning today. That would be a good
objective. We will see how it goes.
Judge Alito, you are free to let us know whenever you want
to break. We will take a couple of breaks at the midpoint of
the morning and the afternoon, but there are 18 of us and only
one of you, so when you would like a break, your schedule takes
precedence over ours.
Before beginning the opening round, let me yield to my
colleague, Senator Leahy, to see if he has some additional
comments.
Senator Leahy. I thank you, Mr. Chairman. I also appreciate
the fact we have kept to the clock. I think it has been
helpful, and I would hope that Judge Alito would bear with us
on that. We will have a lot of questions. I think to take the
time to get to them all--you have always been accommodating
about that--I think that that requires cooperation on both
sides of the dais.
We do have the advantage, Mr. Chairman, that we did not
have with Judge Roberts's hearings, that we are not in session
and we are not going to be interrupted by votes, and we have
the time to do it. I would hope that we do not go into a
marathon for both his sake and us older guys' sake. But I do
appreciate that you have run this with fairness and even-
handedness, and I appreciate that.
Chairman Specter. Since there are no older guys involved or
gals, we can consider the marathon, but we will keep it within
bounds. You can start the clock. I will maintain the clock
meticulously, as we have maintained timing as our Judiciary
Committee practice.
Judge Alito, you will be faced with many, many questions on
many topics. I am going to start today with a woman's right to
choose, move to Executive power, and then hopefully within the
30 minutes pick up congressional power.
Starting with a woman's right to choose, Judge Alito, do
you accept the legal principles articulated in Griswold v.
Connecticut, that the Liberty Clause and the Constitution
carries with it the right to privacy?
Judge Alito. Senator, I do agree that the Constitution
protects a right to privacy, and it protects the right to
privacy in a number of ways. The Fourth Amendment certainly
speaks to the right of privacy. People have a right to privacy
in their homes and in their papers, and in their persons. And
the standard for whether something is a search is whether
there's an invasion of a right to privacy, a legitimate
expectation of privacy.
Chairman Specter. Well, Griswold dealt with the right to
privacy on contraception for married women. Do you agree with
that?
Judge Alito. I agree that Griswold is now I think
understood by the Supreme Court as based on the Liberty Clauses
of the Due Process Clause of the Fifth Amendment and the 14th
Amendment.
Chairman Specter. Do you agree also with Eisenstadt which
carried forward Griswold to single people?
Judge Alito. I do agree with the result in Eisenstadt.
Chairman Specter. Let me move now directly into Casey v.
Planned Parenthood, and picking up the gravamen of Casey as it
has applied, Roe on the woman's right to choose, originating
from the Privacy Clause with Griswold being its antecedent, and
I want to take you through some of the specific language of
Casey to see what your views are, and what weight you would
ascribe to this rationale as you would view the woman's right
to choose. In Casey the joint opinion said, ``People have
ordered their thinking and lives around Roe. To eliminate the
issue of reliance would be detrimental. For two decades of
economic and social development people have organized intimate
relationships and reliance on the availability of abortion in
the event contraception should fail.'' Pretty earthy language,
but that is the Supreme Court's language. The Court went on to
say, ``The ability of women to participate equally in the
economic and social life of the Nation has become facilitated
by their ability to control their reproductive lives.''
Now that states in specific terms the principle of
reliance, which is one of the mainstays, if not the mainstay,
on stare decisis precedent to follow tradition. How would you
weigh that consideration on the woman's right to choose?
Judge Alito. Well, I think the doctrine of stare decisis is
a very important doctrine. It's a fundamental part of our legal
system, and it's the principle that courts in general should
follow their past precedents, and it's important for a variety
of reasons. It's important because it limits the power of the
judiciary. It's important because it protects reliance
interest, and it's important because it reflect the view that
courts should respect the judgments and the wisdom that are
embodied in prior judicial decisions. It's not an inexorable
command, but it is a general presumption that courts are going
to follow prior precedents, and as you mentioned--
Chairman Specter. How do you come to grips with the
specifics where the Court, in the joint opinion, spoke of
reliance on the availability of abortion in the event
contraception should fail, on that specific concept of
reliance?
Judge Alito. Well, reliance is, as you mentioned, Mr.
Chairman, one of the important foundations of the doctrine of
stare decisis. It is intended to protect reliance interests,
and people can rely on judicial decisions in a variety of ways.
There can be concrete economic reliance. Government
institutions can be built up in reliance on prior decisions.
Practices of agencies and Government officials can be molded
based on reliance. People can rely on decisions in a variety of
ways. In my view--
Chairman Specter. Let me move on to another important
quotation out of Casey. Quote: ``A terrible price would be paid
for overruling Casey, for overruling Roe. It would seriously
weaken the Court's capacity to exercise the judicial power and
to function as the Supreme Court of a Nation dedicated to the
rule of law, and to overrule Roe under fire would subvert the
Court's legitimacy.''
Do you see the legitimacy of the Court being involved in
the precedent of Casey?
Judge Alito. Well, I think that the Court, and all the
courts, the Supreme Court, my court, all the Federal courts,
should be insulated from public opinion. They should do what
the law requires in all instances. That's why they're not--
that's why the members of the judiciary are not elected. We
have a basically democratic form of Government, but the
judiciary is not elected, and that's the reason, so that they
don't do anything under fire. They do what the law requires.
Chairman Specter. But do you think there is as fundamental
a concern as legitimacy of the Court would be involved if Roe
were to be overturned?
Judge Alito. Mr. Chairman, I think that the legitimacy of
the Court would be undermined in any case if the Court made a
decision based on its perception of public opinion. It should
make its decisions based on the Constitution and the law. It
should not be--it should not sway in the wind of public opinion
at any time.
Chairman Specter. Let me move to just the final quotation
that I intend to raise from Casey, and it is, ``After nearly 20
years of litigation in Roe's wake, we are satisfied that the
immediate question is not the soundness of Roe's resolution of
the issue, but the precedentual force that must be accorded to
its holding.'' That separates out the original soundness of
Roe, which has been criticized, and then lays emphasis on the
precedentual value. How would you weigh that consideration were
this issue to come before you if confirmed?
Judge Alito. Well, I agree that in every case in which
there is a prior precedent, the first issue is the issue of
stare decisis, and the presumption is that the Court will
follow its prior precedents. There needs to be a special
justification for overruling a prior precedent.
Chairman Specter. Let me turn to an analogous situation,
and that is Chief Justice Rehnquist's change of heart on the
Miranda ruling. In 1974 in the case of Michigan v. Tucker, he
was then Justice Rehnquist, wrote an opinion severely limiting
Miranda, in effect stating he did not like it. Then in the year
2000 in the case of United States v. Dickerson, Chief Justice
Rehnquist wrote an opinion of holding Miranda, and he did that
because, ``Miranda was embedded in the routine police practices
to a point where the warnings have become a part of our
National culture.''
Now, there has been an analogy made from what Chief Justice
Rehnquist said on the Miranda issue to the Roe issue. How would
you evaluate the consideration of Roe being embedded in the
culture of our society?
Judge Alito. Well, I think that Chief Justice Rehnquist
there was getting at a very important point, and--
Chairman Specter. Think he was right?
Judge Alito. I think he was getting at--he was right in
saying that reliance can take many forms. It can take a very
specific and concrete form, and there can be reliance in the
sense that he was talking about there, and I think what he's
talking about there is that a great many people, and in that
instance, police departments around the country, over a long
period of time, had adapted to the Miranda rule, had
internalized it. I think that all the branches of Government
had become familiar with it and comfortable with it, and had
come to regard it as a good way--after a considerable breaking
in period--a good way of dealing with a difficult problem, and
the problem was how to deal with interrogations leading to
confessions, in terms of--
Chairman Specter. Judge Alito, let me move to the
dissenting opinion by Justice Harlan in Poe v. Ullman, where he
discusses the constitutional concept of liberty and says, ``The
traditions from which liberty developed, that tradition is a
living thing.'' Would you agree with Justice Harlan that the
Constitution embodies the concept of a living thing?
Judge Alito. I think the Constitution is a living thing in
the sense that matters, and that is that it is--it sets up a
framework of Government and a protection of fundamental rights
that we have lived under very successfully for 200 years, and
the genius of it is that it is not terribly specific on certain
things. It sets out some things are very specific, but it sets
out some general principles, and then leaves it for each
generation to apply those to the particular factual situations
that come up.
Chairman Specter. Would you agree with Cardozo on Palco
that it represents the values of a changing society?
Judge Alito. The liberty component of the Fifth Amendment
and the 14th Amendment, which I was talking about earlier,
embody the deeply rooted traditions of the country, and it's up
to each--those traditions and those rights apply to new factual
situations that come up. As times change, new factual
situations come up, and the principles have to be applied to
those situations. The principles don't change. The Constitution
itself doesn't change, but the factual situations change, and
as new situations come up, the principles and the rights have
to be applied to them.
Chairman Specter. Judge Alito, the commentators have
characterized Casey as a super precedent. Judge Luttig, in the
case of Richmond Medical Center, called the Casey decision
super stare decisis. In quoting from Casey, Judge Luttig
pointed out, the essential holding of Roe v. Wade should be
retained and once again reaffirmed. Then in support of Judge
Luttig's conclusion that Casey was super stare decisis, he
refers to Stenberg v. Carhart, and quotes the Supreme Court,
saying, ``We shall not revisit these legal principles.'' That
is a pretty strong statement for the Court to make, that we
shall not revisit the principles upon which Roe was founded,
and the concept of super stare decisis or super precedent
arises as the commentators have characterized it, by a number
of different Justices appointed by a number of different judges
over a considerable period of time. Do you agree that Casey is
a super precedent or a super stare decisis as Judge Luttig
said?
Judge Alito. Well, I personally would not get into
categorizing precedents as super precedents or super duper
precedents, or any--
Chairman Specter. Did you say ``super duper?''
[Laughter.]
Judge Alito. Right.
Chairman Specter. Good.
Judge Alito. Any sort of categorization like that--
Chairman Specter. I like that.
[Laughter.]
Judge Alito [continuing]. Sort of reminds me of the size of
laundry detergent in the supermarket.
[Laughter.]
Judge Alito. I agree with the underlying thought that when
a precedent is reaffirmed, that strengthens the precedent, and
when the Supreme Court says that we are not--
Chairman Specter. How about being reaffirmed 38 times?
Judge Alito. Well, I think that when a precedent is
reaffirmed, each time it's reaffirmed that is a factor that
should be taken into account in making the judgment about stare
decisis, and when a precedent is reaffirmed on the ground that
stare decisis precludes or counsels against reexamination of
the merits of the precedent, then I agree that that is a
precedent on precedent.
Now, I don't want to leave the impression that stare
decisis is an inexorable command because the Supreme Court has
said that it is not, but it is a judgment that has to be based,
taking into account all of the factors that are relevant and
that are set out in the Supreme Court's cases.
Chairman Specter. Judge Alito, during the confirmation
hearing of Chief Justice Roberts, I displayed a chart. I do not
ordinarily like charts, but this one I think has a lot of
weight because it lists all 38 cases which have been decided
since Roe, where the Supreme Court of the United States had the
opportunity to--Senator Hatch is in the picture now.
[Laughter.]
Chairman Specter. It is a good photo op for Senator Hatch.
Senator Leahy is complaining.
[Laughter.]
Senator Leahy. Just balance it on Orrin's head.
Senator Hatch. Put that over by Leahy.
Chairman Specter. He wants it on his side.
[Laughter.]
Chairman Specter. I think the point of it is that there
have been so many cases, so many cases, 15 after your statement
in 1985 that I am about to come to, and eight after Casey v.
Planned Parenthood, which is why it has special significance,
and I am not going to press the point about super precedent. I
am glad I did not have to mention super duper, that you did.
Thank you very much.
Let me come now to the statement you made in 1985, that the
Constitution does not provide a basis for a woman's right to an
abortion. Do you agree with that statement today, Judge Alito?
Judge Alito. Well, that was a correct statement of what I
thought in 1985 from my vantage point in 1985, and that was as
a line attorney in the Department of Justice in the Reagan
administration.
Today if the issue were to come before me, if I am
fortunate enough to be confirmed and the issue were to come
before me, the first question would be the question that we've
been discussing, and that's the issue of stare decisis. And if
the analysis were to get beyond that point, then I would
approach the question with an open mind, and I would listen to
the arguments that were made.
Chairman Specter. So you would approach it with an open
mind notwithstanding your 1985 statement?
Judge Alito. Absolutely, Senator. That was a statement that
I made at a prior period of time when I was performing a
different role, and as I said yesterday, when someone becomes a
judge, you really have to put aside the things that you did as
a lawyer at prior points in your legal career and think about
legal issues the way a judge thinks about legal issues.
Chairman Specter. Judge Alito, coming to the role you had
in the Solicitor General's Office, where you wrote the
memorandum in the Thornburgh case, urging restriction and
ultimate appeal of Roe, that was in your capacity as an
advocate. And I have seen your other statements that the role
of an advocate is different from the role of a judge. But when
you made the statement that the Constitution did not provide
for the right to an abortion, that was in a statement you made
where you were looking to get a job, a promotion within the
Federal Government. So there is a little difference between the
1985 statement and your advocacy role in the Thornburgh
memorandum, is there not?
Judge Alito. Well, there is, Senator, and what I said was
that that was a true expression of my views at the time, the
statement in the 1985 appointment form that I filled out. It
was a statement that I made at a time when I was a line
attorney in the Department of Justice. I'm not saying that I
made the statement simply because I was advocating the
administration's position, but that was the position that I
held at the time, and that was the position of the
administration.
Chairman Specter. Would you state your views, the
difference as you see it between what you did as an advocate in
the Solicitor General's Office to what your responsibilities
would be, are on the Third Circuit, or what they would be on
the Court if confirmed as a judicial capacity?
Judge Alito. Well, an advocate has the goal of achieving
the result that the client wants within the bounds of
professional responsibility. That's what an advocate is
supposed to do, and that's what I attempted to do during my
years as an advocate for the Federal Government. Now, a judge
doesn't have a client, as I said yesterday, and a judge doesn't
have an agenda, and a judge has to follow the law. An important
part of the law in this area, as we look at it in 2006, is the
law of stare decisis.
Chairman Specter. Judge Alito, you have written some 361
opinions that I would like to have the time to discuss quite a
few of them with you, but I am only going to pick up one in the
first round, and that is an opinion you wrote in the Elizabeth
Blackwell Health Center for Women v. Knoll, and that was a case
where there was a challenge between a Pennsylvania statute,
which required as a prerequisite to a woman getting Medicaid,
that she would have had to have reported a rape or an incest to
the police, and second, a requirement that there be a second
opinion from a doctor that she needed an abortion to save her
life. And that statutory requirement, those two provisions
conflicted with a regulation by the Department of Health and
Human Services. You were on the Third Circuit, which held that
the Pennsylvania statute should be stricken in deference to the
rule of the Health and Human Services Department. And Judge
Nygaard entered a very forceful dissent saying that this was an
interpretive rule and it was inappropriate to have that kind of
an interpretive rule by the Department countervail a statute.
What was your thinking in that case? Had you been
predisposed to take a tough line on a woman's right to choose
or on Medicaid support for someone who had been raped, you
would have upheld the statute. What was your thinking in that
case?
Judge Alito. Well, what you said is correct, Senator. I
cast the deciding vote there to strike down the Pennsylvania
statute, and I did it because that's what I thought the law
required. I thought the law required that we defer to the
interpretation of the Federal statute that had been made by the
Department of Health and Human Services. If I had had an agenda
to strike down any--I'm sorry, to uphold any regulation of
abortion that came up in any case that was presented to me,
then I would have voted with Judge Nygaard in that case, and
that would have turned the decision the other way.
I've sat on three abortion cases on the Third Circuit. In
one of them--that was the Casey case--I voted to uphold
regulations of abortion, and in the other two--the Elizabeth
Blackwell case and Planned Parenthood v. Farmer--I voted to
strike them down. And in each instance, I did it because that's
what I thought the law required.
Chairman Specter. Judge Alito, I want to turn now to
Executive power and to ask you first if you agree with the
quotation from Justice Jackson's concurrence in the Youngstown
Steel seizure case about the evaluation of Presidential power
that I cited yesterday.
Judge Alito. I do. I think it provides a very useful
framework, and it has been used by the Supreme Court in a
number of important subsequent cases, in the Dames and Moore,
for example, involving the release of the hostages from Iran.
And it doesn't answer every question that comes up in this
area, but it provides a very useful way of looking at them.
Chairman Specter. Do you agree with Justice O'Connor's
statement quoted frequently yesterday from Hamdi that, ``We
have long since made clear that a state of war is not a blank
check for the President when it comes to the rights of the
Nation's citizens,'' when she was citing the Youngstown case?
Do you agree with that?
Judge Alito. Absolutely. That's a very important principle.
Our Constitution applies in times of peace and in times of war,
and it protects the rights of Americans under all
circumstances.
Chairman Specter. You made a speech at Pepperdine where you
said, in commenting about the decision of the Supreme Court in
Ex Parte Milligan, that ``The Constitution applies even in an
extreme emergency.'' The Government made a ``broad and unwise
argument'' that the Bill of Rights simply doesn't apply during
wartime.
Do you stand by that statement?
Judge Alito. I certainly do, Senator. The Bill of Rights
applies at all times, and it's particularly important that we
adhere to the Bill of Rights in times of war and in times of
national crisis, because that's when there's the greatest
temptation to depart from them.
Chairman Specter. Steering clear, Judge Alito, of asking
you how you would decide a specific case, I think it is very
important to find out your jurisprudential approach in
interpreting whether the September 14, 2001, congressional
resolution authorizing the use of force constituted
congressional authorization for the National Security Agency to
engage in electronic surveillance where one party to the
conversation was in the United States. Let me take just a
moment to lay out the factual and legal considerations.
The Foreign Intelligence Surveillance Act of 1978 provides
it ``shall be the exclusive means by which electronic
surveillance shall be conducted and the interpretation of
domestic wire, oral, and electronic communications may be
conducted.'' The Government contends that the Foreign
Intelligence Surveillance Act clause, ``except as authorized by
statute, opens the door to interpreting that resolution to
authorize the surveillance.''
Let me give you a series of questions. I don't like to put
more than one on the table at a time, but I think they are
necessary in this situation to give the structure as to where I
am going.
First, in interpreting whether Congress intended to amend
FISA by that resolution, would it be relevant that Attorney
General Gonzales said we were advised that ``that was not
something we could likely get.''
Second, if Congress had intended to amend FISA by the
resolution, wouldn't Congress have specifically said so, as
Congress did in passing the PATRIOT Act, giving the Executive
greater flexibility in using roving wiretaps?
Third, in interpreting statutory construction on whether
Congress intended to amend FISA by the resolution, what would
the relevance be of rules of statutory construction that repeal
or change by implication--that changes by--makes the repeal by
implication or disfavor, and specific statutory language trumps
more general pronouncements? How would you weigh and evaluate
the President's war powers under Article II to engage in
electronic surveillance with the warrant required by
congressional authority under Article I in legislating under
the Foreign Intelligence Surveillance Act? And let me start
with the broader principles.
In approaching an issue as to whether the President would
have Article II powers, inherent constitutional authority to
conduct electronic surveillance without a wiretap, when you
have the Foreign Intelligence Surveillance Act on the books,
making that the exclusive means, what factors would you weigh
in that format?
Judge Alito. Well, probably the first consideration would
be to evaluate the statutory question, and you outlined some of
the factors and the issues that would arise in interpreting the
statute, what is meant by the provision of FISA that you quoted
regarding FISA--the Foreign Intelligence Surveillance Act--
being the exclusive means for conducting surveillance. And
then, depending on how one worked through that statutory
question, then I think one might look to Justice Jackson's
framework. And he said that he divided cases in this area into
three categories where the President acts with explicit or
implicit congressional approval, where the President acts and
Congress has not expressed its view on the matter one way or
the other, and the final category where the President exercises
Executive power and Congress--and that is in the face of an
explicit or implicit congressional opposition to it. And
depending on how one worked through the statutory issue, then
the case might fall into one of those three areas.
But these questions that you pose are obviously very
difficult and important and complicated questions that are
quite likely to arise in litigation, perhaps before my own
court or before the Supreme Court.
Chairman Specter. Before pursuing that further--and we will
have a second round--I want to broach one other issue with you.
My time is almost up. That is, in the memorandum you wrote back
on February 5, 1986, about the President's power to put a
signing statement on to influence interpretation of the
legislation, you wrote this: ``Since the President's approval
is just as important as that of the House or Senate, it seems
to follow that the President's understanding of the bill should
be just as important as that of Congress.''
Is that really true when you say the President's views are
as important as Congress's? The President can express his views
by a veto and then gives Congress the option of overriding a
veto, which Congress does not have if the President makes a
signing declaration and seeks to avoid the terms of the
statute. And we have the authority from the Supreme Court that
the President cannot impound funds, cannot pick and choose on
an appropriation. We have the line item veto case where the
President cannot strike a provision even when authorized by
Congress.
Well, I have got 10 second left. I guess when my red light
goes on, it does not affect you. You can respond. Care to
comment?
[Laughter.]
Judge Alito. I do, Senator. I think the most important part
of the memo that you are referring to is a fairly big section
that discussed theoretical problems, and it consists of a list
of questions, and many of the questions are the questions that
you have just raised. In that memo, I said this is an
unexplored area, and here are the theoretical questions that--
and, of course, they are of more than theoretical importance--
that arise in this area.
That memo is labeled a rough first effort at stating the
position of the administration. I was writing there on behalf
of a working group that was looking into the question of
implementing a decision that had already been made by the
Attorney General to issue signing statements for the purpose of
weighing in on the meaning of statutes. And in this memo--as I
said, it was a rough first effort, and the biggest part of it,
to my mind, was the statement there are difficult theoretical
interpretive questions here and here they are. And had I
followed up on it--and I don't believe I had the opportunity to
pursue this issue further during my time in the Justice
Department--it would have been necessary to explore all those
questions.
Chairman Specter. Well, my red light went on.
Senator Leahy?
Senator Leahy. Well, Judge, good morning.
Judge Alito. Good morning, Senator.
Senator Leahy. You survived yesterday listening to us. Now
we have a chance to listen to you. I will have further
questions on the memo that Senator Specter spoke of, but it
gets beyond the theoretical. The last few weeks, we have seen
it well played out in the press where the President and Senator
John McCain negotiated rather publicly an amendment, which
passed overwhelmingly in the House and the Senate, outlawing
the use of torture by United States officers, yet the President
in a signing statement implies that it will not apply to him or
to those under his command as commander in chief. Doesn't that
get well beyond a theoretical issue there?
Judge Alito. It is, and I think I said in answering the
Chairman that there are theoretical issues but they have
considerable practical importance. But the theoretical issues
really have to be explored and resolved. I don't believe the
Supreme Court has done that up to this point. I have not had
occasion in my 15-plus years on the Third Circuit to come to
grips with the question of what is the significance of a
Presidential signing statement in interpreting a statute.
Senator Leahy. Let me follow with a related issue. I feel
one of the most important functions of the Supreme Court is to
stop our Government from intruding into Americans' privacy or
our freedom or our personal decisions. In my State of Vermont,
we value our privacy very, very much. I think most Americans do
automatically, and many times they have to go to the courts to
make sure that the Government does not--whatever part of the
Government it is, whatever administration it might be--that
they do not overreach in going into that privacy.
Three years ago, the Office of Legal Counsel at the Justice
Department--and you are familiar with that; you worked there
years ago--they issued a legal opinion, which they kept very
secret, in which they concluded that the President of the
United States had the power to override domestic and
international laws outlawing torture. It said the President
could override these laws outlawing torture.
They tried to redefine torture, and they asserted, I quote,
that the President enjoys ``complete authority over the conduct
of war,'' and they went on further to say that if Congress
passed a criminal law prohibiting torture ``in a manner that
interferes with the President's direction of such core matters
as detention and interrogation of enemy combatants,'' that
would be unconstitutional. They seemed to say that the
President could immunize people from any prosecution if they
violated our laws on torture. And that remained the legal basis
in this administration until somebody apparently at the Justice
Department leaked it to the press and it became public. Once it
became public, with the obvious reaction of Republicans,
Democrats, everybody saying this is outrageous, it is beyond
the pale, the administration withdrew that opinion as its
position. The Attorney General even said in his confirmation
that this no longer--no longer--represented Bush administration
policy.
What is your view--and I ask this because the memo has been
withdrawn. It is not going to come before you. What is your
view of the legal contention in that memo that the President
can override the laws and immunize illegal conduct?
Judge Alito. Well, I think the first thing that has to be
said is what I said yesterday, and that is that no person in
this country is above the law, and that includes the President
and it includes the Supreme Court. Everybody has to follow the
law, and that means the Constitution of the United States and
it means the laws that are enacted under the Constitution of
the United States.
Now, there are questions that arise concerning Executive
powers, and those specific questions have to be resolved, I
think, by looking to that framework that Justice Jackson set
out that I mentioned earlier.
Senator Leahy. Well, let's go into one of those specifics.
Do you believe the President has the constitutional authority
as commander in chief to override laws enacted by Congress and
to immunize people under his command from prosecution if they
violate these laws passed by Congress?
Judge Alito. Well, if we were in--if a question came up of
that nature, then I think you'd be in where the President is
exercising Executive power in the face of a contrary expression
of congressional will through a statute or even an implicit
expression of congressional will. You would be in what Justice
Jackson called ``the twilight zone,'' where the President's
power is at its lowest point, and I think you would have to
look at the specifics of the situation. These are the gravest
sort of constitutional questions that come up, and very often
they don't make their way to the judiciary or they are not
resolved by the judiciary. They are resolved by the other
branches of the Government.
Senator Leahy. But, Judge, I am a little bit troubled by
this because you suggested, and I completely agreed with what
you said, that no one is above the law and no one is beneath
the law. You are not above the law, I am not, the President is
not. But are you saying that there are situations where the
President not only could be above the law passed by Congress,
but could immunize others, thus putting them above the law?
I mean, listen to what I am speaking to specifically. We
passed a law outlawing certain conduct. The President in his
Bybee memo, which has now been withdrawn, was saying that that
law won't apply to me or people that I authorize. doesn't that
place not only the President but anybody he wants above the
law?
Judge Alito. Senator, as I said, the President has to
follow the Constitution and the laws and, in fact, one of the
most solemn responsibilities of the President--and it is set
out expressly in the Constitution--is that the President is to
take care that the laws are faithfully executed, and that means
the Constitution, it means statutes, it means treaties, it
means all of the laws of the United States.
But what I am saying is that sometimes issues of Executive
power arise and they have to be analyzed under the framework
that Justice Jackson set out. And you do get cases that are in
this twilight zone and it is--they have to be decided when they
come up based on the specifics of the situation.
Senator Leahy. But are you saying that there could be
instances where the President could not only ignore the law,
but authorize others to ignore the law?
Judge Alito. Well, Senator, if you are in that situation,
you may have a question about the constitutionality of a
congressional enactment. You have to know the specifics of--
Senator Leahy. Let's assume there is not a question of the
constitutionality of the enactment. Let's make it an easy one.
We pass a law saying it is against the law to murder somebody
here in the United States. Could the President authorize
somebody, either from an intelligence agency or elsewhere, to
go out and murder somebody and escape prosecution or immunize
the person from prosecution, absent a Presidential pardon?
Judge Alito. Neither the President nor anybody else, I
think, can authorize someone to--can override a statute that is
constitutional. And I think you are in this--when you are in
the third category, under Justice Jackson, that is the issue
which you are grappling with.
Senator Leahy. But wouldn't it be constitutional for the
Congress to outlaw Americans from using torture?
Judge Alito. And Congress has done that, and it is
certainly an expression of a very deep value of our country.
Senator Leahy. And if the President were to authorize
somebody to torture or say that he would immunize somebody from
prosecution for doing that, he wouldn't have that power, would
he?
Judge Alito. Well, Senator, I think the important points
are that the President has to follow the Constitution and the
laws, and it is up to Congress to exercise its legislative
power. But as to specific issues that might come up, I really
need to know the specifics. I need to know what was done and
why it was done, and hear the arguments on the issue.
Senator Leahy. Let's go to some specifics. Senator Specter
mentioned FISA and your role with FISA, the Foreign
Intelligence Surveillance Act. Certainly, you had to be
involved with it, and appropriately so, when you were a U.S.
Attorney. This law came in after the abuses of the 1960s and
1970s. We had had President Nixon's enemies list, with the
government breaking into doctors' offices and wiretapping
innocent Americans, and so on. After that, the Congress in a
strong bipartisan effort passed the FISA legislation. We have
that court which can handle applications in secret for wiretaps
or surveillance, if necessary, for national security.
Now, we have just learned that the President has chosen to
ignore the FISA law and the FISA court. He has issued secret
orders, and according to the press and the President's own
press conference, time after time after time secret orders for
domestically spying on American citizens without obtaining a
warrant.
Do you believe the President can circumvent the FISA law,
and bypass the FISA court to conduct warrantless spying on
Americans?
Judge Alito. The President has to comply with the Fourth
Amendment and the President has to comply with the statutes
that are passed. This is an issue I was speaking about with
Chairman Specter that I think is very likely to result in
litigation in the Federal courts. It could be in my court. It
certainly could get to the Supreme Court and there may be
statutory issues involved--the meaning of the provision of FISA
that you mentioned, the meaning certainly of the authorization
for the use of military force--and those would have to be
resolved.
And in order to resolve them, I would have to know the
arguments that are made by the contending parties. On what
basis is it claimed that there is a violation? On what basis
would the President claim that what occurred fell within the
authorization of the authorization for the use of military
force? And then if you got beyond that, there could be
constitutional questions about the Fourth Amendment, whether it
was a violation of the Fourth Amendment, whether it was the
valid exercise of Executive power.
Senator Leahy. But wouldn't the burden be on the Government
to prove that it wasn't a violation of the Fourth Amendment if
you were spying on Americans without a warrant, especially when
you have courts set up--in this case the FISA court, which sets
up a very easy procedure to get the warrant? Wouldn't the
burden be on the Government in that case?
Judge Alito. Well, Senator, I think the in first instance
the Government would have to come forward with its theory as to
why the actions that were taken were lawful. I think that is
correct.
Senator Leahy. Well, let me ask you another one. You are
saying this may come before the Third Circuit or could come
before the Supreme Court, and I will accept that. But how does
somebody even get there? If you are conducting illegal secret
spying on a person, how are they even going to know? Where are
they going to get the standing to sue?
Judge Alito. Certainly, if someone is the subject of a
search and they claim that the search violates a statute or it
violates the Constitution, then they would have standing to sue
and they could sue in a Federal court that had jurisdiction.
Senator Leahy. And I am not asking these as hypothetical
questions, Judge. People are getting very concerned about this.
We just found out, again not because the Government told us,
but because the press found out about it--and thank God that we
do have a free press because so much of the stuff that is
supposed to be reported to Congress never is, and we first hear
about it when it is in the press.
But we found out that the Department of Defense is going
around--and this makes me think of COINTELPRO during the
Vietnam War--they are going around the country photographing
and spying on people who are protesting the war in Iraq. They
went, according to the press, and spied on Quakers in Vermont.
Now, I don't know why they spent all that money to do that.
If they want to find a Vermonter protesting the war, turn on C-
SPAN. I do it on the Senate floor all the time. But I know some
of these Quakers. I mean, in the Quaker tradition, they have
been protesting war throughout this country's history.
Now, I worry about this culture we are getting, and I just
want to make sure since Congress is not going to stand up and
say no, and the administration certainly is authorizing this--I
want to make sure that the courts are going to say we will
respect your privacy, we will respect your Fourth Amendment
rights.
You know, if you have somebody who has been spied on, would
you agree--and I think you did, but I want to make sure I am
correct on this--do you agree that they should have a day in
court?
Judge Alito. Certainly. If someone has been the subject of
illegal law enforcement activities, they should have a day in
court and that is what the courts are there for, to protect the
rights of individuals against the government and to--or anyone
else who violates their rights. And they have to be absolutely
independent and treat everybody equally.
Senator Leahy. And those Fourth Amendment rights are pretty
significant, are they not?
Judge Alito. They are very significant.
Senator Leahy. I think they set us apart from most other
countries in the world, to our betterment. And you were a
prosecutor; I was a prosecutor. I think we can agree even
looking of our past professions that it protects us.
Judge Alito. I agree, Senator. I tried to follow what the
Fourth Amendment required when I was a prosecutor and I regard
it as very important.
Senator Leahy. Well, let me go back to the last time we saw
Government excesses like this before FISA. When you worked in
the Reagan administration, you argued to the Supreme Court that
President Nixon's Attorney General should have absolute
immunity for domestic spying without a warrant even in the case
of willful misconduct. In your memo you said, ``I do not
question that the Attorney General should have immunity, but
for tactical reasons I would not raise the issue here.''
Do you believe today that the Attorney General would be
absolutely immune from civil liability for authorizing
warrantless wiretaps?
Judge Alito. No, he would not. That was settled in that
case. The Supreme Court held that the Attorney General does not
have--
Senator Leahy. But you did believe so then?
Judge Alito. Actually, I recommended that that argument not
be made. It was made and I think it is important to understand
the context of that. First of all--
Senator Leahy. You did say in the memo, ``I do not question
that the Attorney General should have this immunity.''
Judge Alito. That is correct, and the background of that,
if I could just explain very briefly--
Senator Leahy. Sure.
Judge Alito [continuing]. Is that we were--there, we were
not just representing the Government; we were representing
former Attorney General Mitchell in his individual capacity. He
was being sued for damages and we were, in a sense, acting as
his private attorney. And this was an argument that he wanted
to make. This was an argument that had been made several times
previously by the Department of Justice during the Carter
administration and then just a couple of years earlier in
Harlow v. Fitzgerald in the Reagan administration. And I said I
didn't think it was a good idea to make the argument in this
case, but I didn't dispute that it was an argument that was
there.
Senator Leahy. You don't have any question that the
judiciary has a role to play here and there can be judicial
checks on such things?
Judge Alito. No. Absolutely, it is the job of the judiciary
to enforce the Constitution.
Senator Leahy. Let's go into a couple search cases, and I
think we have indicated to you that we would bring these up--
Doe v. Groody, Baker v. Monroe Township. Those are unauthorized
searches. In Doe, the police officers had a warrant for a man
at a certain address. When they arrived, they found his wife
and 10-year-old daughter. They were not in the warrant, they
posed no threat. But the officers detained them and strip-
searched them, the wife and the 10-year-old, the 10-year-old
girl.
In Baker, a mother and her three teenage children were
detained and searched when they arrived at the home of the
mother's adult son. They didn't live there. They were not in
the home. They were outside. They didn't pose a threat to the
police, but they were ordered at gunpoint to lie on the ground.
They were handcuffed, they were taken into the house and they
were searched.
In Doe, the strip-search case of the 10-year-old girl, the
officers didn't ask for permission to search anybody beyond the
man they were looking for. In fact, the magistrate didn't give
a search warrant for anybody else. But you went beyond that and
you said that they were justified in strip-searching this 10-
year-old and the mother. You went beyond the four corners of
the search warrant the magistrate gave.
And one of your members of the Third Circuit, Judge
Chertoff, who is now the head of Homeland Security and a former
prosecutor, criticized your reasoning. He said that it would
come dangerously close to displacing the critical role of the
independent magistrate.
Do you continue to hold the position you took in your
opinion or do you now agree with the majority that they are
right and you are wrong?
Judge Alito. Well, Senator, I haven't had occasion to think
that what I said in that case was correct, but let me just
explain what was going on there.
Senator Leahy. Sure.
Judge Alito. The issue there was whether--the first issue
was whether the warrant authorized the search of people who
were on the premises and that was the disagreement between me
and the majority and it was a rather technical issue about
whether the affidavit that was submitted by police officers was
properly incorporated into the warrant for the purposes of
saying who could be searched.
And I thought that it was, and I thought that it was quite
clear that the magistrate had authorized a search for people
who were on the premises. That was the point of disagreement. I
was not pleased that a young girl was searched in that case and
I said so in my opinion. That was an undesirable thing, but the
issue wasn't whether there should be some sort of rule of
Fourth Amendment law that a minor can never be searched. And I
think if we were to--
Senator Leahy. But we both agree on that, Judge. The only
reason I bring up these two cases is it seems in both of them
you went beyond the four corners of the search warrant and you
settled all issues in a light most favorable--the majority in
the opinion didn't, but you did--in a light most favorable to
law enforcement. In fact, in Baker, the majority said that.
And I worry about this because I always worry that the
courts must be there to protect individuals against an
overreaching government. In this case, your position in the
minority was that you protected what the majority felt was an
overreaching government.
Am I putting too strong an analysis on that?
Judge Alito. I do think you are, Senator.
Senator Leahy. OK.
Judge Alito. I think you need to take into account what was
going on here. The police officers prepared an affidavit and
they said we have probable cause to believe that this drug
dealer hides drugs on people who are on the premises. And
therefore, when we search, we want authorization not just to
search him, but to search everybody who is found on the
premises because we think he hides--we have reason to believe
he hides drugs there.
And the magistrate who issued the warrant said that the
affidavit was incorporated into the warrant for the purpose of
establishing probable cause. And we are supposed to read
warrants in a common-sense fashion because they are prepared by
police officers for the most part, not by lawyers, and they are
often prepared under a lot of time pressure.
And it seemed to me that, reading this in a common-sense
fashion, what the magistrate intended to do was to say, yes,
you have authorization to do what you ask us to do. But even
beyond that, the issue there was whether these police officers
could be sued for damages, and they couldn't be sued for
damages if a reasonable officer could have believed that that
is what the magistrate intended to authorize. And I thought
that surely a reasonable officer could view it that way. Now,
Judge Chertoff looked at it differently and there are cases
where reasonable people disagree, and that is all that was
going on.
Senator Leahy. I know. You look for what a reasonable
officer would think--I spent 8 years in law enforcement. I
don't know where any reasonable officer under those
circumstances would feel they could strip-search a 10-year-old
girl.
Let me go into another area, and it is one that touched me
in your statement yesterday. You spoke eloquently of your
father's experience when he came to this country. The reason it
touched me is I was thinking that, when my maternal
grandparents emigrated to America, to Vermont, speaking only
Italian, coming from Italy to a new country, I know some of the
problems they faced--these people speaking this strange
language. My mother was a child learning English when she went
to school. People asking, ``Why don't they speak like us? Why
are they different than us''; those were just some of the
obstacles they faced.
In my father's case, my paternal grandfather, whom I never
knew, named Patrick Leahy, died as a stonecutter in Barre,
Vermont. My father was a young teen and had to go to work to
support his mother, my grandmother, whom I also never knew. And
the signs then were ``No Irish Need Apply'' or ``No Catholics
Need Apply.'' And I think you and I would be in total agreement
that we are now at a different world in at least most of our
country and that we are better people because we have done away
with that.
What we both understand, I think, in our core, I would
hope, is what happens if you have either ethnic prejudice or
religious prejudice. In my case, my father was a self-taught
historian, but he never was able to finish high school. I was
the first Leahy to get a college degree, my sister the next
one.
So with that in mind, there was something in your
background that I was troubled with. That is the Concerned
Alumni of Princeton University, CAP. This was a group that
received attention because it was put together, but it resisted
the admission of women and minorities to Princeton. They were
hostile to what they felt were people that did not fit
Princeton's traditional mold--women and minorities.
Now, two prominent Princetonians--one, Bill Frist, who is
now the Majority Leader of the United States Senate, in a
committee, roundly criticized CAP. Bill Bradley, who had joined
it and then found out what it was, left it, and roundly
criticized it. And yet you, proudly in 1985, well after this
criticism, in your job application, proudly wrote that you were
a member of it, a member of Concerned Alumni of Princeton
University, a conservative alumni group.
Why, in heaven's name, Judge, with your background and what
your father faced, why in heaven's name are you proud of being
part of CAP?
Judge Alito. Well, Senator, I have racked my memory about
this issue, and I really have no specific recollection of that
organization. But since I put it down on that statement, then I
certainly must have been a member at that time. But if I had
been actively involved in the organization in any way, if I had
attended meetings or been actively involved in any way, I would
certainly remember that, and I don't.
I have tried to think of what might have caused me to sign
up for membership, and if I did, it must have been around that
time. And the issue that had rankled me about Princeton for
some time was the issue of ROTC. I was in ROTC when I was at
Princeton, and the unit was expelled from the campus. And I
felt that was very wrong. I had a lot of friends who were
against the war in Vietnam, and I respected their opinions, but
I didn't think that it was right to oppose the military for
that reason. And the issue, although the Army unit was
eventually brought back, the Navy and the Air Force units did
not come back, and the issue kept coming up. And there were
people who were strongly opposed to having any unit on campus,
and the attitude seemed to be that the military was a bad
institution and that Princeton was too good for the military,
and that Princeton would somehow be sullied if people in
uniform were walking around the campus, that the courses didn't
merit getting credit, that the instructors shouldn't be viewed
as part of the faculty. And that was the issue that bothered me
about that.
Senator Leahy. But, Judge, with all due respect, CAP was
most noted for the fact that they were worried that too many
women and too many minorities were going to Princeton. In 1985,
when everybody knew that is what they stood for, when a
prominent Republican like Bill Frist and a prominent Democrat
like Bill Bradley, both had condemned it, you, in your job
application, proudly stated this as one of your credentials.
Now, you strike me as a very cautious and careful person,
and I say that with admiration, because a judge should be. But
I cannot believe that at 35, when you are applying for a job,
that you are going to be anything less than careful in putting
together such a job application, and frankly, I do not know why
that was a matter of pride for you at that time.
My time is up. We will come back to this. I have other
questions.
Judge Alito. Well, Senator, as you said, from what I now
know about the group, it seemed to be dedicated to the idea of
bringing back the Princeton that existed at a prior point in
time, and as you said, somebody from my background would not
have been comfortable in an institution like that, and that
certainly was not any part of my thinking in whatever I did in
relation to this group.
Senator Leahy. Or my background either, Judge, or my
background either.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch?
Senator Hatch. Welcome, Judge Alito. We appreciate you and
the service that you have given, but much has been made about
your membership in an organization called the Concerned Alumni
of Princeton. Now, you mentioned this organization in your 1985
job application for a position in President Reagan's
administration. And you have told us what you felt--you know
about your membership in that organization. So is it fair to
say that you were not a founding member?
Judge Alito. I certainly was not a founding member.
Senator Hatch. You were not a board member?
Judge Alito. I was not a board member.
Senator Hatch. Or, for that matter, you were not even an
active member of the organization, to the best of your
recollection?
Judge Alito. I don't believe I did anything that was active
in relation to this organization.
Senator Hatch. Now, some have suggested, as my friend from
Massachusetts did yesterday, that by your membership in this
organization, you are somehow against the rights of women and
minorities attending colleges. So let me just ask you directly
on the record: Are you against women and minorities attending
colleges?
Judge Alito. Absolutely no, Senator, no.
Senator Hatch. I felt that that would be your answer. I
really did.
[Laughter.]
Senator Leahy. Tough question, Orrin. Tough question.
Senator Hatch. It is a good question, though. It is one
that kind of overcomes the implications that you were.
Judge Alito. Senator, I had never attended a non-
coeducational school until I went to Princeton, and after I was
there a short time, I realized the benefits of attending a co-
educational school.
[Laughter.]
Senator Hatch. Now, I am glad that you mentioned in your
opening statement yesterday that a decade earlier, a person
like yourself--and by this, I assume you meant someone of
Italian ancestry.
Judge Alito. I do, Senator, and someone not from any sort
of exalted economic status.
Senator Hatch. Modest background, son of an immigrant
father, and a person who had gone to public school and might
not have been fully welcomed sometimes at Princeton at that
time. Now, people like me are not even sure of what an eating
club is, but it sure as heck does not sound like a cafeteria.
Judge Alito. No. It's something like a fraternity, except
it's just a facility. It's a private facility where students
eat. Traditionally, they were selective. They had a process
like Vicker and they chose people that they thought fit in with
the group.
Senator Hatch. Sure.
Judge Alito. And I did not choose to belong to an eating
club. I belonged to a university facility called Stevenson
Hall, which was named after Adlai Stevenson, and it was one of
the most co-educational facilities on the campus. It was not
selective. It was attractive to me because a lot of faculty
members went there for lunch. There was a master who lived on
the facility with his family, and it was an opportunity at
dinner and lunch to talk to faculty members.
Senator Hatch. Well, much has been written about the just
and egalitarian changes that took place at Princeton and other
elite institutions in the 1960s, making them more welcoming to
persons without an elite background. It has been alleged by
some--most prominently, I might add, by a Democratic witness
who was withdrawn at the last minute because of some
politically embarrassing comments that he made--that your
membership in this group demonstrates your desire to maintain
some old boys' network to the detriment of women and
minorities. Could you comment on that particular suggestion?
Judge Alito. I certainly had no such desire, and I think
that what I did when I was a student at Princeton and my
activities since then illustrate that.
As I said, when I was at Princeton, I was a member of this
university facility, and it was open to everybody, and it was
one of the most co-educational facilities on the campus. And
since graduating, I have actually been involved in a way in the
admissions process. I was on the Schools Committee for a number
of years and interviewed applicants to Princeton, and I think
that shows my attitude toward the general way in which the
university has been run.
Senator Hatch. Well, ROTC programs are an excellent
opportunity for young men and women to attend college and to
serve their country through service in the armed forces. Now,
there are actually more military officers who were ROTC
students than went to West Point, the Naval Academy, or the Air
Force Academy. Now, that includes the eminent Colin Powell.
Now, you were a member of the ROTC; is that true?
Judge Alito. I was, Senator.
Senator Hatch. You were a proud member of the ROTC.
Judge Alito. I was.
Senator Hatch. Did you enjoy your time in the ROTC and in
the Army afterward?
Judge Alito. I was proud to be a member, and the unit was
thrown off the campus after--well, the decision was made
shortly after I joined the ROTC, and so I attended the ROTC
classes on the campus during my junior year, but during my
senior year the unit had been expelled from the campus, and I
had to go to Trenton State College occasionally to finish up my
ROTC work.
Senator Hatch. I heard a report yesterday that the ROTC
building on the Princeton campus was actually firebombed at
about the same time that American servicemen of college age
were fighting in Vietnam. Is that accurate?
Judge Alito. That's correct. It was very extensively
damaged.
Senator Hatch. Was anybody injured?
Judge Alito. I don't recall that anybody was injured, but
certainly there's a serious risk of injury whenever an arson
takes place.
Senator Hatch. Now, Judge Alito, some Senators and left-
wing activist groups have focused on one case involving the
Vanguard Company, claiming that your consideration of that case
amounts to some kind of ethical lapse. Now, I would observe
that the universal opinion is that you have unquestioned
integrity and a record that is above reproach. I know we will
hear from the American Bar Association later this week, but I
know their highest rating includes the highest marks for
integrity. In fact, I have a copy of their recommendations
here.
On the issue of integrity, it says, ``The matter of
integrity is self-defining. A nominee's character and general
reputation in the legal community are investigated, as are his
or her industry and diligence. Judge Alito enjoys an excellent
reputation for integrity and character, notwithstanding a
widespread awareness of the Vanguard and Smith Barney recusal
issues. During his personal interview with us, Judge Alito was
asked about the recusal matter in detail, and he acknowledged
at length that he takes the matter of recusal very seriously
and that the cases had `slipped through' the court's screening
process.''
I won't read the whole matter, but let me just go toward
the end. ``Judge Alito explained to the satisfaction of the
Standing Committee the special circumstances that resulted in
the screen not working or otherwise not being applied in these
limited matters''--that is, the screening of cases--``and he
further accepted responsibility for the errors. We accept his
explanation and do not believe these matters reflect adversely
on him. To the contrary, consistent and virtually unanimous
comment from those interviewed included `He has the utmost
integrity'; `he is a straight shooter, very honest, and calls
them as he sees them'; `his reputation is impeccable'; `you can
find no one with better integrity'; `his integrity and
character are of the highest caliber'; `he is completely
forthright and honest'; `his integrity is absolutely
unquestionable'; `he is a man of great integrity.' ''
``On the basis of our interviews with Judge Alito with well
over 300 judges, lawyers, and members of the legal community
nationwide, all of whom know Judge Alito professionally, the
Standing Committee concluded that Judge Alito is an individual
of excellent integrity.''
Now, the reason I want to go into this is to kind of get
rid of this problem that I think is as phony as anything I have
ever seen in my time around here. Like I say, this case has
been written about or reported on for weeks in bits and pieces
so that getting a clear picture of the facts is indeed a
challenge, let alone getting a clear picture of the ethical
issues involved as well. And I know you have not had a chance
to respond to any of it publicly, so I want to give you that
chance now.
Now, please take a few minutes and briefly describe the
facts of the case, and then I have a few questions on the
issues that are raised by the case.
Judge Alito. Thank you, Senator, and I appreciate the
opportunity to address this because a lot has been said about
it and very little by me. And I think that once the facts are
set out, I think that everybody will realize that in this
instance I not only complied with the ethical rules that are
binding on Federal judges--and they're very strict--but also
that I did what I have tried to do throughout my career as a
judge, and that is to go beyond the letter of the ethics rules
and to avoid any situation where there might be an ethical
question raised.
And this was a case where--this is a case that came up in
2002, 12 years after I took the bench, and I acknowledge that
if I had to do it over again, there are things that I would
have done differently. And it's not because I violated any
ethical standard, but it's because when this case first came
before me, I did not focus on the issue of recusal and apply my
own personal standard, which is to go beyond what the code of
conduct for judges requires.
This was a pro se case, and we take our pro se cases very
seriously.
Senator Hatch. By pro se, explain that.
Judge Alito. It's a case where the plaintiff was not
represented by a lawyer. She was representing--she was
representing--
Senator Hatch. Paying for her own counsel and represented
herself.
Judge Alito. She represented herself initially, and we take
those very seriously. We give those just as much
consideration--in fact, more consideration in many respects
than we do with the cases without lawyers because we take into
account that somebody who's representing himself or herself
can't be expected to comply with all the legal technicalities.
But for whatever reason, our court system for handling the
monitoring of recusals in these pro se cases is different from
the system that we use in the cases with lawyers. And maybe
that's because recusal issues don't come up very often in pro
se cases. But, in any event, in a case with a lawyer, before
the case is ever sent to us, we receive what are known as
clearance sheets, and those are--it's a stack of papers and it
lists all the cases that the clerk's office is thinking of
sending to us. It lists the parties in each case, and it lists
the lawyers in each case. And it says, ``Do you need to recuse
yourself in any of these cases?'' And this is the time when the
judges and this is the time when I focus on the issue of
recusal, and I look at each case. I look at the parties. I look
at the lawyers. And I ask myself: Is there a reason why I
should not participate in the case?
Now, because this case, the Monga case, was a pro se case,
it didn't come to me with clearance sheets. I just received the
briefs, and it had been through our staff attorneys' office.
They take a first look at the pro se cases, and they try to
make sure--they try to translate the pro se arguments into the
sort of legal arguments that lawyers would make to help the pro
se litigants. And they give us a recommended disposition and a
draft opinion.
And when this came to me, I just didn't focus on the issue
of recusal, and I sat on the initial appeal in the case. And
then after the case was decided, I received a recusal motion.
And I was quite concerned because I take my ethical
responsibilities very seriously.
So I looked into the question of whether I was required
under the code--because I just wanted to see where the law was
on this. Was I required under the code of conduct to recuse
myself in this case? And it seemed to me that I was not. And a
number of legal experts, experts on legal ethics, have now
looked into this question, and their conclusion is no, I was
not required to recuse.
But I didn't stand on that because of my own personal
policy of going beyond what the code requires, so I did recuse
myself. And not only that, I asked that the original decision
in the case be vacated, that is, wiped off the books and that
the losing party in the case, the appellant, Ms. Monga, be
given an entirely new appeal before an entirely new panel. And
that was done.
I wanted to make sure that she did not go away from this
case with the impression that she had gotten anything less than
an absolutely fair hearing. And then beyond that, I realized
that the fact that this has slipped through in a pro se case
pointed to a bigger problem, and that was the absence of
clearance sheets.
So since that time, I have developed my own forms that I
use in my own chambers, and for pro se cases now, there is--I
have a red sheet of paper printed up, and it is red so nobody
misses it. And when a pro se case comes in, it initially goes
to my law clerks, and they prepare a clearance sheet for me in
that case, and then they do an initial check to see whether
they spot any recusal problem. And if they don't, then there's
a space at the bottom where they initial it. And then it comes
to me, and there's a space at the bottom for me to initial to
make sure that I focus on the recusal problem. And in very bold
print at the bottom of the sheet for my secretary, it says,
``No vote is to be sent in in this case unless this form is
completely filled out.''
So there are a number of internal checks now in my own
office to make sure that I follow my own policy of going beyond
what the code requires.
Senator Hatch. In other words, there was never any
possibility of you benefiting financially no matter how that
case came out. Is that right?
Judge Alito. Absolutely no chance.
Senator Hatch. And you actually did recuse yourself when
the question was eventually raised, even though you didn't have
to.
Judge Alito. That's correct, Senator.
Senator Hatch. Did you genuinely feel that you were either
legally or ethically required to recuse under those
circumstances?
Judge Alito. I did not think the code required--
Senator Hatch. You were just going beyond, which has been
your philosophy and--
Judge Alito. That's right.
Senator Hatch [continuing]. Ethical response, your personal
ethical approach to it.
Well, your own conclusion certainly is supported by the
independent ethics experts that you mentioned who have recently
examined this case. I know one of them is Professor Geoffrey
Hazard from the University of Pennsylvania. That name stuck out
in particular because I remember when a financial conflict of
interest issue arose in connection with the nomination of
Supreme Court Justice Stephen Breyer. In 1994, Senator Kennedy
and I, we strongly defended the Breyer nomination. I did, too.
And during the hearings, Senator Kennedy highlighted a letter
from Professor Geoffrey Hazard to answer Justice Breyer's
critics.
Well, Professor Hazard has examined this matter, and
concluded that you, Judge Alito, handled it, in his words,
``quite properly.''
Now, Mr. Chairman, I would like to put not only Professor
Hazard's letter into the record, but the letter of Steven
Lubet, Thomas Morgan, and Professor Ronald Rotunda, all of whom
found that you made no ethical mistakes.
Chairman Specter. Without objection, all will be made a
part of the record.
Senator Hatch. And let me just observe that these are all
top ethics experts in our country today, and, you know, I have
to say that Rotunda--or Morgan, of the George Washington
University Law School, he happens to be the co-author of the
Nation's most widely read ethics textbook. Now, he was blunt in
his assessment saying that there was simply no basis for
suggesting that you did anything improper. So I am glad to put
those in the record.
Now, you actually did more than simply recusing yourself in
this case. As you have explained, you even set up a special
system to make sure that, you know, there never is going to be
a question about this. And so you went farther than you were
legally or ethically mandated to do.
Judge Alito. I did, Senator, and that is what I have tried
to do throughout my time on the bench.
Senator Hatch. Now, when the new panel of judges looked at
this case, how did they rule?
Judge Alito. They ruled the same way that we had, and we
had ruled the same way that the district court did.
Senator Hatch. OK. So let me just clarify this one more
time, and you tell me if this accurately describes the
situation. You did not believe that you were ethically or
legally required to recuse yourself in this case. All the
ethics experts agree with you. Yet you recused yourself anyway
when the issue was raised. The party raising the issue got an
entirely new hearing before a new and different panel of
judges, who ruled the same way that you did originally.
Does that about sum it up?
Judge Alito. That's correct, Senator.
Senator Hatch. Well, I have to say, Judge, that you went
above and beyond your ethical duties here, and I think you are
to be applauded, not to be criticized, for your rigorous
attention to judicial impartiality and integrity.
Now, let me just go into another matter here before I
finish here. Some Supreme Court nominees have had legislative
experience. The Justice you will replace, Justice O'Connor,
served in the Arizona State Senate. Justice Breyer was chief
counsel to Senator Kennedy when he chaired this Committee. I
have tremendous respect for both of them.
Judge Alito, you have had no legislative experience, and
there are those of us who are concerned that your many years of
experience in the executive branch may have biased you in favor
of Executive power, or at least some feel that way and that
that is a possibility.
Yesterday, one of my Democratic colleagues claimed that
your instincts are to defer to the Executive, to grant
prosecutors whatever power they seek, that sort of thing. I
suppose that in 15 years on the appeals court you have
participated in what I would estimate at nearly 5,000 cases.
You have had many opportunities to review challenges to
Executive power. Is that correct?
Judge Alito. I have, yes.
Senator Hatch. Well, I am thinking of cases such as United
States v. Kithcart, where you reversed a criminal conviction
because the police lacked probable cause for a search, or
Bolden v. Southeastern Pennsylvania Transportation Authority,
where you ruled for a former maintenance custodian for a public
transportation agency, concluding that the Fourth Amendment
barred a suspicionless drug test.
I want to make it clear that simply giving such examples of
results on the other side of the ledger does not by itself
prove that you are a good judge or a bad judge. Without also
talking about the facts and the law in each case, merely
tabulating winners and losers does not offer much. But since my
colleagues on the other side occasionally have their tally
sheets and actually some have even claimed that you may be
biased when certain results seem to suit them, could you give
me some more examples of cases where you voted against
Executive powers?
Judge Alito. Yes, certainly, Senator. Brinson v. Vaughn is
an example of that. That was a habeas case involving a murder
conviction, and I concluded and my panel concluded--and I wrote
the opinion saying that there had been racial discrimination,
or enough to have a hearing on the possibility of racial
discrimination in the selection of the jury in that case. And,
therefore, we reversed the decision of the district court.
Williams v. Price is another example. There we found--and
that was another murder case, and so what is involved here in
these cases is really the most important thing that is
litigated on the criminal side in the Federal courts. That was
a case where the district court had denied a writ of habeas
corpus, and we reversed because we found that there had been an
error in excluding testimony that showed racial bias on the
part of the jurors.
There was another murder case, United States v. Murray.
This was a Federal prosecution, and we had to reverse there
because we concluded--and I wrote the opinion there--that the
prosecutors had introduced evidence--
Senator Hatch. Well, you could go on and on, but my point
is that in approximately 5,000 cases, you can find just about
anything you want to, to pluck out and say, ``Oh, he didn't do
right here,'' or ``He did right here.'' I mean, the fact of the
matter is that you, as far as I can see, have always done your
utmost to live up to your responsibilities as a Federal court
judge and that you have done so throughout your 15 years on the
bench, even though members of this illustrious body, the United
State Senate, might differ with you on occasion, and others
might also. But I don't know a judge alive who has been on the
bench 15 years that does not have cases that some of our
illustrious members disagree with. So that is the point I am
trying to make.
Let me just shift here for a second. I am interested in
exploring the kind of judge you are. As you can see, some of
these questions have all been directed toward what kind of a
judge you are. But I am interested in what is often referred to
as a judicial philosophy, which means how you understand the
role that judges play in our system of Government in general
and how judges should go about deciding cases in particular.
I would like to explore this by giving you a chance to
expand on a few things that you have said or written. In your
hearing in April 1990, which my friend Senator Kennedy chaired,
he asked you what qualities are most important for an appellate
judge. You listed open-mindedness to litigants' arguments,
close attention to the particular facts and law in the case,
and trying not to import a judge's own view of the law that
should be applied in the case.
Now, in your statement yesterday, you said that your
experience on the appeals court has taught you a lot about, as
you put it, ``the way in which a judge should go about the work
of judging.'' What has that experience taught you? How has it
shaped the answer you gave before you went on the bench?
Judge Alito. My general philosophy is that the judiciary
has a very important role to play, and in speaking with Senator
Leahy, I highlighted some of that. But the judiciary has to
protect rights, and it should be vigorous in doing that, and it
should be vigorous in enforcing the law and in interpreting the
law, in interpreting the law in accordance with what it really
means and enforcing the law even if that's unpopular.
But although the judiciary has a very important role to
play, it's a limited role. It is not--it should always be
asking itself whether it is straying over the bounds, whether
it's invading the authority of the legislature, for example,
whether it is making policy judgments rather than interpreting
the law. And that has to be a constant process of re-
examination on the part of the judges. And that's the role that
the judiciary should play.
Now, my experience on the bench has really reinforced for
me the importance of the appellate process and the judicial
process that I described yesterday. And that is the process of
really engaging the arguments that are made, reading the
briefs, and approaching it with an open mind, always with the
possibility of changing your mind based on the arguments and
based on the facts of a particular case.
Senator Hatch. Well, another context in which you have
discussed your judicial philosophy is the questionnaire that
you received from this Committee, which asked for your views on
judicial activism. Now, the very first words of your answer
were as given here today, that the Constitution sets forth the
limited role for the judicial branch.
Now, to hear some of my colleagues describe it yesterday,
judges have virtually unlimited power to right all wrongs,
protect everyone from everything, and make sure that Government
officials everywhere behave themselves.
Now, as an appeals court judge, the decisions of the
Supreme Court add to the limitations or constraints you must
observe, in my opinion. I am wondering whether you believe this
notion of limited judicial power applies also the Supreme
Court, and if so, how it applies when there is no higher court
than the Supreme Court. Does that mean that the Supreme Court
should perhaps be even more cautious, even more self-restrained
since there is no appeal from any errors that they might make?
Judge Alito. I think that's a solemn responsibility that
they have. When you know that you are the Court of last resort,
you have to make sure that you get it right.
It is not true, in my judgment, that the Supreme Court is
free to do anything that it wants. It has to follow the
Constitution, and it has to follow the laws. Stare decisis,
which I was talking about earlier, is an important limitation
on what the Supreme Court does. And although the Supreme Court
has the power to overrule a prior precedent, it uses that power
sparingly, and rightfully so. It should be limited in what it
does.
Senator Hatch. Another place in which you have written
about what might be called judicial philosophy is in your
opinions--not that you have spent much time opining about such
matters in the abstract. Nevertheless, I would like you to
expand a little on a few of the things you have written in this
regard.
For instance, in New Jersey Payphone Association v. Town of
West New York--this was a 2002 case--for example, you wrote the
following: ``It is well established that, when possible,
Federal courts should generally base their decisions on non-
constitutional rather than constitutional grounds. The
rationale behind the doctrine of avoiding constitutional
questions except as a last resort are grounded in fundamental
constitutional principles.''
Can you explain those fundamental principles and whether
you think the Supreme Court as well as the appeals court should
follow this imperative to avoid constitutional decisions?
Judge Alito. I do. I think that's a very important
principle. As I recall, Justice Brandeis in the Ashwander case
was the one who articulated it most eloquently, and it's,
therefore, an important reason because a constitutional
decision of the Supreme Court has a permanency that a decision
on an issue of statutory interpretation doesn't have. So if a
case is decided on statutory grounds, there's a possibility of
Congress amending the statute to correct the decision if it's
perceived that the decision is incorrect or it's producing
undesirable results.
I think that it's--my philosophy of the way I approach
issues is to try to make sure that I get right what I decide,
and that counsels in favor of not trying to do too much, not
trying to decide questions that are too broad, not trying to
decide questions that don't have to be decided, and not going
to broader grounds for a decision when a narrower ground is
available.
Senator Hatch. You have addressed issues such as abortion
at different points in your career. You addressed it when you
worked for the Solicitor General. You might have addressed it
in several cases on the appeals court. It might be tempting to
say that if you came to one conclusion while in one role, you
will necessarily come to the same conclusion on the issue while
in a different role.
Now, I think you have explained it pretty well today, but
let me just ask one other question. Could you please explain
how judges address issues differently than advocates? And how
does the requirement of a case or a controversy or a limitation
such as a particular standard of review shape how judges
address these issues?
Judge Alito. The standards of review are very important,
and often they are prescribed by Congress. Congress gives us
authority, jurisdiction to decide certain questions, but it
says that you don't have the authority to go back and do what
the trial--what you would have done if you were the trial judge
or if you were the administrative agency; you have a limited
authority of review. And I think it's very important for us to
stay within the bounds of the authority that Congress gives us.
I think that's a very important part of our function.
Senator Hatch. Thank you, Judge.
Chairman Specter. Thank you, Senator Hatch.
We will now take a 15-minute break and reconvene at 11:20.
[Recess at 11:06 a.m. to 11:20 a.m.]
Chairman Specter. We will continue the hearing for Judge
Alito on confirmation to the Supreme Court of the United
States, and we now turn in sequence to Senator Kennedy. Let us
not forget to start the clock.
Senator Kennedy. Thank you very much, Mr. Chairman.
There was one interesting omission between the exchange of
yourself and Senator Hatch on the whole Vanguard issue in
question, and that was the promise and pledge that you gave to
this Committee when you were up for the Circuit Court. I have
it right here. It said: I do not believe that conflicts of
interest relating to my financial interests are likely to
arise. I would, however, disqualify myself from any cases
involving the Vanguard Companies, the brokerage firm of Smith
Barney or the First Federal Savings & Loan of Rochester, New
York. So you remember that response. That was a pledge and
promise to the Committee that you would recuse yourself, was it
not?
Judge Alito. Yes, it was, Senator. And as I said in
answering Senator Hatch's question, if I had it to do over
again, I would have handled this case differently. There were
some oversights--
Senator Kennedy. I am sure you might have, and we have had
a number of different explanations for this. I would like to
ask the clerk if they would take down and show the Judge, if
you would like to be refreshed, about the number of times the
name Vanguard appears on the brief, and the number of times
Vanguard appears on the opinion, which I believe you offer. I
would ask if I could get a clerk to show those two documents.
Judge Alito. Senator, I'm familiar with that. I don't
really need to see the document. Senator, the name Vanguard
certainly appears on the briefs, and it appeared in the draft
opinion that was sent to us by the staff attorney's office. I
just didn't focus on the issue of recusal when it came up, and
that was an oversight on my part, because it didn't give me the
opportunity to apply my personal policy in going beyond what
the code requires.
Senator Kennedy. Did the individuals that responded on the
ethical issues that were involved in this case, did they know
that you had pledged and promised to this Committee that you
would recuse yourself?
Judge Alito. I believe that they did. I believe that some
of them at least addressed that specifically--
Senator Kennedy. Do you know specifically whether they did
or not?
Judge Alito. I believe they addressed it in their letter,
so they must have been aware of it.
Senator Kennedy. They understood that you had promised this
Committee that you would recuse yourself? Your testimony now is
that those that made a comment upon your ethical behavior knew
as a matter of fact that you had pledged to this Committee that
you would recuse yourself from the Vanguard cases?
Judge Alito. Professor Hazard, I know, addressed that
directly in his letter. I think Professor Rotunda addressed it
in his letter, so, obviously, if the letters addressed the
issue, they were aware of what was said on the Senate
questionnaire.
Senator Kennedy. And the final answer--and we will move
on--is that you saw the name Vanguard on the briefs, and you,
obviously, saw them on the opinion. You are the author of the
opinion. But your testimony here now is even though you saw the
names on that, it did not come to mind at that moment that you
had made the pledge and promise to this Committee that you
would recuse yourself?
Judge Alito. I did not focus on the issue of recusal I
think because 12 years had gone by, and the issue of a Vanguard
recusal hadn't come up. And one of the reasons why judges tend
to invest in mutual funds is because they generally don't
present recusal problems, and pro se cases in particular
generally don't present recusal problems. And so, no light went
off. That's all I can say. I didn't focus on the issue of
recusal.
Senator Kennedy. This is important, when the lights do go
on and when the lights do go off, because, actually, the
accumulation of value of Vanguard had increased dramatically
during this period of time, had it not?
Judge Alito. It had, Senator, but I had nothing to gain
financially by--
Senator Kennedy. I am not asking you to get on to the
questions of gain or loss or whatever. I am just asking about
the pledge to the Committee which you had given, and the fact
that Vanguard was so obvious, both in the brief and in the
opinion which you wrote, and the fact that during this period
of time there had been a sizable increase in the total value of
Vanguard, and as all of us know, if you are dealing with a case
dealing with IBM, you cannot have even a single share in that.
The point about all of this is so interested parties that have
come before the courts, are going to believe not only in
reality, but in appearance that they are going to get a fair
shake. And that, you have said, was certainly your desire, and
I certainly commend you for at least that desire. But in this
case, this was something that we recognize and is extremely
important.
Judge, in just the past month, Americans have learned that
the President instructed the National Security Agency to spy on
them at home, and they have seen an intense public debate over
when the FBI can look at their library records, and they have
heard the President announce that he has accepted the McCain
amendment barring torture. But then just days later, as he
signed it into law, the President decided he still could order
torture whenever he believed it was necessary. No check, no
balance, no independent oversight. So, Judge, we all want to
protect our communities from terrorists, but we do not want our
children and grandchildren to live in an America that accepts
torture and eavesdropping on an American citizen as a way of
life. We need an independent and vigilant Supreme Court to keep
that from happening, to enforce the constitutional boundaries
on Presidential power and blow the whistle when the President
goes too far.
Congress passes laws, but this President says that he has
the sole power to decide whether or not he has to obey those
laws. Is that proper? I do not think so. But we need Justices
who can examine this issue objectively, independently and
fairly, and that is what our Founders intended and what the
American people deserve.
So, Judge, we must know whether you can be a Justice who
understands how to strike that proper balance between
protecting our liberties and protecting our security, a Justice
who will check even the President of the United States when he
has gone too far.
Chief Justice Marshall was that kind of Justice when he
told President Jefferson that he had exceeded his war-making
powers under the Constitution. Justice Jackson was that kind of
Justice when he told President Truman that he could not use the
Korean War as an excuse to take over the Nation's steel mills.
Chief Justice Warren Burger was that kind of Justice when he
told President Nixon to turn over the White House tapes. And
Justice O'Connor was that kind of Justice when she told
President Bush that a state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens.
I have serious doubts that you would be that kind of
Justice. Your record shows time and again that you have been
overly deferential to Executive power, whether exercised by the
President, the Attorney General or law enforcement officials.
And your record shows that even over the strong objections of
other Federal judges, other Federal judges, you bend over
backwards to find even the most aggressive exercise of
Executive power reasonable. But perhaps most disturbing is the
almost total disregard in your record for the impact of these
abuses of power on the rights and liberties of individual
citizens.
So, Judge Alito, we need to know whether the average
citizen can get a fair shake from you when the Government is a
party, and whether you will stand up to a President, any
President, who ignores the Constitution and uses arguments of
national security to expand Executive power at the expense of
individual liberty, whether you will ever be able to conclude
that the President has gone too far.
Now, in 1985, in your job application to the Justice
Department you wrote, ``I believe very strongly in the
supremacy of the elected branches of Government.'' Those are
your words; am I right?
Judge Alito. They are, and that's a very inapt phrase, and
I--
Senator Kennedy. Excuse me?
Judge Alito. It's an inapt phrase, and I certainly didn't
mean that literally at the time, and I wouldn't say that today.
The branches of Government are equal. They have different
responsibilities, but they are all equal, and no branch is
supreme to the other branch.
Senator Kennedy. So you have changed your mind?
Judge Alito. No, I haven't changed my mind, Senator, but
the phrasing there is very misleading and incorrect. I think
what I was getting at is the fact that our Constitution gives
the judiciary a particular role, and there are instances in
which it can override the judgments that are made by Congress
and by the Executive, but for the most part our Constitution
leaves it to the elected branches of Government to make the
policy decisions for our country.
Senator Kennedy. I want to move on. Mr. Chairman, the clock
is off. There are a number of points I want to cover and be
timely, so I leave it up to the Chair.
Chairman Specter. Senator Kennedy, you are correct. We have
a timer over here. We are trying to get the time fixed.
Senator Kennedy. All right. If I would know when I have 10
minutes left?
Chairman Specter. Let us see if we cannot get the clock
within the view of Senator Kennedy so he can see it when he is
questioning the witness.
Senator Kennedy. Thank you, Chair.
Chairman Specter. And give Senator Kennedy two more
minutes.
Senator Kennedy. There you go.
[Laughter.]
Senator Kennedy. Be quiet over there, scurrilous dogs.
[Laughter.]
Senator Leahy. Seniority has privileges.
Senator Kennedy. Judge, quite frankly, your record shows
you still believe in the supremacy of the executive branch,
Judge Alito. I believe there is a larger pattern in your
writings and speeches and cases that show an excess of almost
single-minded deference to the Executive power without showing
a balanced consideration to the individual rights of people. So
let us discuss some of your opinions.
These cases deal specifically with one form or another of
Executive power, the power of authorities intruding in homes,
searching people who are not even suspected of committing a
crime. Mellott v. Heemer--where the U.S. Marshal Service
forcibly evicted a family of dairy farmers from their home and
their farm. These farmers had no criminal record, and were
suspected of no crime, but after they fell on very hard times,
property was sold at a public auction. U.S. Marshals were sent
to evict them. Remember, the marshals were sent to carry out a
civil action, not a criminal action, a civil action. These
farmers had committed no crime. Now, I respect the U.S.
Marshals. They have a tough job and they do it with great
professionalism. But in this case the marshals entered the
house with loaded guns. The family was unarmed, did not resist,
but still the marshals pointed loaded guns at their heads,
chests and backs. One marshal chambered a cartridge in his gun.
Twice they pushed the wife into her chair.
The trial judge held there was enough evidence in this case
to have a jury review the facts, hear the testimony and decide
whether the marshals used too much force to evict these
farmers. That did not sit well with you, Judge Alito. You
grabbed the case away from the jury. You would not let them
hear the testimony or make up their own mind about whether the
marshals had gone too far. No, you simply substituted your
judgment for the jury's, and decided that the marshals' conduct
was, as a matter of law, objectively reasonable. Judgment for
the marshals, no jury of their peers for the farmers.
Why, Judge Alito? Your colleague on the Third Circuit,
Judge Rendell, called the marshals' conduct ``Gestapo-like'',
``Gestapo-like''. She said that seven marshals terrorized a
family and friends, ransacked a home while carrying out an
unresisted civil eviction. The trial judge thought the decision
should be made by the jury. Why did you not let the jury
exercise an independent check on the marshals' actions?
Judge Alito. There was some additional information
regarding these people that was important, and that was that
they had threatened other people, as I recall, and there was
evidence about the possession of weapons and evidence that they
would be dangerous, and that was the basis on which the
marshals acted the way they did. This was a case in which they
were--the marshals were sued for civil damages, and they
asserted what's called the Qualified Immunity Defense, and that
means that if a reasonable person could have thought there was
a basis for doing what they did, then they are entitled not to
be tried. And that's the law. I didn't make up that law.
Senator Kennedy. No, the--
Chairman Specter. Let him finish, Senator Kennedy.
Judge Alito. That's not a legal standard that I made up,
and that was the way I saw the case, and that's the way the
other judge, who was in the majority, saw the case. Now, these
cases involve difficult line-drawing arguments at times, and I
respect Judge Rendell's view of this very much, but reasonable
people will view these things differently.
Senator Kennedy. The issue then was the actions of the
marshals, whether it was reasonable. And here you have a judge,
Judge Rendell, saying it was Gestapo-like to talk about
terrorizing a family and friends, ransacking a home while
carrying out an unresisted civil eviction. Aren't juries there
to make a judgment and determination whether it was reasonable
or not reasonable, and did you not, by your action, take that
away because you ruled as a matter of law that their conduct
was reasonable?
Judge Alito. The Supreme Court has told us how we have to
handle this issue, and it is for the judiciary to decide in the
first place whether a reasonable officer could have thought
that what the officer was doing was consistent with the Fourth
Amendment, and we have to make that decision. Now, if we decide
that there's an issue of fact. If there's a dispute in the
testimony about the evidence that the marshals had or about
what these individuals were doing at the time when the search
was taking place, or what the marshals did, and certainly those
factual issues have to be resolved by the jury.
Senator Kennedy. That is I think certainly the view of
Judge Rendell.
Let me move on, if I could, to Doe v. Groody. I know that
Senator Leahy has talked about this, and gone over the factual
situation about the strip searching of a 10-year-old girl. This
case, the police got the warrant to search the house. They
found the suspect outside, marched him inside where they
encountered wife and 10-year-old. The police took the wife and
daughter upstairs, told them to remove their clothing,
physically searched them, not as a protective frisk or search
for weapons, but in the hopes of finding contraband. And that
is when Judge Chertoff, the former Chief Federal Prosecutor for
New Jersey, the former head of the Criminal Division in the
Justice Department, President Bush's current Secretary of
Homeland Security, held that the police went too far. As Judge
Chertoff said, a search warrant for a premise does not
constitute a license to search everyone inside.
You differed. And you have reviewed with us your reasoning
for it, the fact that you felt that the affidavit which had
been filed by the police should be included in the search
warrant. Judge Chertoff takes strong exception to that, as does
the Fourth Amendment. As you mentioned yourself, the affidavit
represents the police, the police's view about this situation,
but the affidavit--the search warrant is what is approved by
the judge. Those are two different items. They come up every
time in many, many instances. Why did you feel that under these
circumstances, under these circumstances, that that affidavit
should be included, the result of which we have the strip
searching of a 10-year-old, 10-year-old that will bear the
scars of that kind of activity probably for the rest of her
life.
The Fourth Amendment is clear, we want to protect the
innocent. We want to have a search warrant that is precise so
that the police understand it and the person that it is being
served to understands it. That was all spelled out in the
judge's opinion. But you went further than that. You said,
well, in this case we are going to include the affidavit, and
as a result of your judgment in this case and the inclusion of
the affidavit, we have the kind of conduct against this 10-
year-old that she will never forget. Why? Why, Judge Alito?
Judge Alito. Senator, I wasn't happy that a 10-year-old was
searched. Now, there wasn't any claim in this case that the
search was carried out in any sort of an abusive fashion. It
was carried out by a female officer, and that wasn't the issue
in the case. And I don't think that there should be a Fourth
Amendment rule. But, of course, it's not up to me to decide
that minors can never be searched, because if we had a rule
like that, then where would drug dealers hide their drugs? That
would lead to greater abuse of minors.
The technical issue in the case was really not whether a
warrant can incorporate a search warrant--an affidavit. There's
no dispute that a judge or a magistrate issuing a warrant can
say that the affidavit is incorporated, and that was done here.
The issue was whether--and it was a very technical issue. Was
it incorporated only on the issue of probable cause or was it
also incorporated on the issue of who would be searched? If the
magistrate had said in the warrant, this warrant is
incorporated as to the people who may be searched, and then in
the affidavit it said, and it did say this very clearly, we
want authorization to search anybody who's on the premises,
then there would be no problem whatsoever.
The warrant said it was incorporated on the issue of
probable cause, and I thought that reading it in a common sense
fashion, which is what we're supposed to do, that necessarily
meant that the magistrate said there was probable cause to
search anybody who's found on the premises and that's what I'm
authorizing you to do.
Senator Kennedy. And that is what Judge Chertoff took
strong exception, in a very eloquent statement in talking about
the protections and the reasons for the strict interpretation
for the warrant. Let me move on.
Judge Alito, your Third Circuit decisions don't exist in a
vacuum. I'd like to, Mr. Chairman, at this point, since there
have been some questions about whether we are flyspecking these
cases, I would like to include in the appropriate place in the
record the Knight Ridder studies that concluded that Judge
Alito never found a government search unconstitutional; the
Yale Law School professors study that found that Judge Alito
ruled for the government in almost every case reviewed--this
was their conclusion; the Washington Post stories with regard
to the cases; and also Professor Cass Sunstein's conclusions
that Judge Alito rules against individuals 84 percent of the
time.
Chairman Specter. In accordance with our practices, if you
want them in the record, they will be there, without objection.
Senator Kennedy. So just looking at your writings and
speeches, Judge Alito, you have endorsed the supremacy of the
elected branch of government. You have clarified that today.
You argued that the Attorney General should have absolute
immunity, even for actions that he knows to be unlawful or
unconstitutional. You suggested that the Court should give a
President's signing statement great deference in determining
the meaning and the intent of the law and argued as a matter of
your own political and judicial philosophy for an almost all-
powerful Presidency. Time and again, even in routine matters
involving average Americans, you give enormous, almost total
deference to the exercise of governmental power. So I want to
ask you about some of the possible abuses of the Executive
power and infringement on individual rights that we are facing
in the country today.
Judge Alito, just a few weeks ago, by a vote of 90 to nine,
the Senate passed a resolution sponsored by Senator John McCain
to ban torture, whether it be here at home or abroad, and as a
former POW in Vietnam, John McCain knows a thing or two about
torture. For a long time, the White House threatened to veto
the legislation, and finally, Senator McCain met with the
President and convinced him to approve the anti-torture law.
Two weeks after that, the President issued a signing statement,
no publicity, no press release, no photo op, where he quietly
gutted his commitment to enforce the law banning torture. The
President stated, in essence, that whatever the law of the land
might be, whatever Congress might have written, the Executive
branch has the right to authorize torture without fear of
judicial review.
Now, I raise this issue with you, Judge, I raise this with
you because you were among the early advocates of these so-
called Presidential signing statements when you were a Justice
Department official. You urged President Reagan to use the
signing statements to limit the scope of laws passed by
Congress, even though Article I of the Constitution vests all
legislative powers in the Congress. You urged the President to
adopt what you described as a novel proposal, to issue
statements aimed at undermining the Court's use of legislative
history as a guide to the meaning of the law. You wrote these
words. The President's understanding of the bill should be just
as important as that of Congress.
With respect to the statement issued by President Bush
reserving his right to order torture, is that what you had in
mind when you said or wrote, the President's understanding of
the bill should be just as important as that of Congress?
Judge Alito. When I interpret statutes, and that's
something that I do with some frequency on the Court of
Appeals, where I start and often where I end is with the text
of the statute. And if you do that, I think you eliminate a lot
of problems involving legislative history and also with signing
statements. So I think that's the first point that I would
make.
Now, I don't say I'm never going to look at legislative
history, and the role of signing statements in the
interpretation of statutes is, I think, a territory that's been
unexplored by the Supreme Court and it certainly is not
something that I have dealt with as a judge.
This memo was a memo that resulted from a working group
meeting that I attended. The Attorney General had already
decided that as a matter of policy, the administration, the
Reagan administration, would issue signing statements for
interpretive purposes and had made an arrangement with the West
Publishing Company to have those published. And my task from
this meeting was to summarize where the working group was going
and where it had been, and I said at the beginning of the
meeting that this was a rough--at the beginning of the memo
that this was a rough first effort to outline what the
administration was planning to do and I was a lawyer for the
administration at the time. Then I had a big section of that
memo saying, and these are the theoretical problems and some of
them are the ones that you mentioned. And that's where I left
it, and all of that would need to be explored to go any
further.
Senator Kennedy. Well, Judge Alito, in the same signing
statement undermining the McCain anti-torture law, the
President referred to his authority to supervise the unitary
Executive branch. That's an unfamiliar term to most Americans,
but the Wall Street Journal describes it as the foundation of
the Bush administration's assertion of power to determine the
fate of enemy prisoners, jailing U.S. citizens as enemy
combatants without charging them. President Bush has referred
to this doctrine at least 110 times, while Ronald Reagan and
the first President Bush combined used the term only seven
times. President Clinton never used it.
Judge Alito, the Wall Street Journal reports that officials
of the Bush administration are concerned that current judges
are not buying into its unitary Executive theory, so they are
appointing new judges more sympathetic to their Executive power
claims. We need to know whether you are one of those judges.
In 2000, in the year 2000, in a speech soon after the
election, you referred to the unitary Executive theory as the
gospel and affirmed your belief in it. So, Judge Alito, the
President is saying he can ignore the ban on torture passed by
Congress, that the courts cannot review his conduct. In light
of your lengthy record on the issues of Executive power,
deferring to the conduct of law enforcement officials even when
they are engaged in conduct that your judicial colleagues
condemn, Judge Chertoff, Judge Rendell, subscribing to the
theory of unitary Executive, which gives the President complete
power over the independent agencies, the independent agencies
that protect our health and safety, believing that the true
independent special prosecutors who investigate Executive
wrongdoing are unconstitutional, referring to the supremacy of
the elected branches over the judicial branch and arguing that
the court should give equal weight to a President's view about
the meaning of the laws that Congress has passed, why should we
believe that you will act as an independent check on the
President when he claims the power to ignore the laws passed by
Congress?
Judge Alito. Well, Senator, let me explain what I
understand the idea of the unitary Executive to be, and I think
it's--there's been some misunderstanding, at least as to what I
understand this concept to mean. I think it's important to draw
a distinction between two very different ideas. One is the
scope of Executive power, and often Presidents or occasionally
Presidents have asserted inherent Executive powers not set out
in the Constitution. And we might think of that as how big is
this table, the extent of Executive power.
And the second question is when you have a power that is
within the prerogative of the Executive, who controls the
Executive? And those are separate questions. And the issue of,
to my mind, the concept of unitary Executive doesn't have to do
with the scope of Executive power. It has to do with who within
the Executive branch controls the exercise of Executive power,
and the theory is the Constitution says the Executive power is
conferred on the President.
Now, the power that I was addressing in that speech was the
power to take care that the laws are faithfully executed, not
some inherent power but a power that is explicitly set out in
the Constitution.
Senator Kennedy. Would that have any effect or impact on
independent agencies?
Judge Alito. The status of independent agencies, I think,
is now settled in the case law. This was addressed in
Humphrey's Executor way back in 1935 when the Supreme Court
said that the structure of the Federal Trade Commission didn't
violate the separation of powers. And then it was revisited and
reaffirmed in Wiener v. United States in 1958--
Senator Kennedy. So your understanding of any unitary
Presidency, that they do not therefore have any kind of
additional kind of control over the independent agencies that
has been agreed to by the Congress and signed into law at--
Judge Alito. I think that Humphrey's Executor is a well-
settled precedent. What the unitary Executive, I think, means
now, we would look to Morrison, I think, for the best
expression of it, and it is that things cannot be arranged in
such a way that interfere with the President's exercise of his
power on a functional, taking a functional approach.
Senator Kennedy. I want to just mention this signing of the
understanding of the legislation that we passed banning
torture, what the President signed on to. The Executive branch
shall construe the Title X in Division A relating to detainees
in a matter with the constitutional authority of the President
to supervise the unitary Executive branch as the commander in
chief, and consistent with the constitutional limitations on
judicial power. Therefore, it is the warning that the courts
are not going to be able to override the judgments and
decisions. That is certainly my understanding of those words,
which will assist in achieving the shared objective of the
Congress and the President.
That statement there, in terms of what was agreed to by
Congress 90-to-9, by John McCain, by President Bush, and then
we have this signing document which effectively just undermines
all of that, is something that we have to ask ourselves whether
this is the way that we understand the way the laws are to be
made. It is very clear in the Constitution who makes the laws,
and Congress and the Senate makes it. The President signs it,
and that is the law. That is the law. These signing statements
and recognizing these signing statements and giving these value
in order to basically undermine that whole process is a matter
of enormous concern.
Thank you.
Chairman Specter. Judge Alito, Senator Kennedy had noted
that there were substantial gains, as he put it, in the
Vanguard stock or the Vanguard asset during the period of time
that you held them, but he did not give you an opportunity to
answer that. I don't like to interrupt in the midst of a series
of questions, but you can respond to that if you care to do so
at this time.
Judge Alito. Mr. Chairman, I had additional holdings in
Vanguard during my period of service, but I think that the
important point as far as that is concerned is that nobody has
claimed that I had anything to gain financially from
participating in this case and I certainly did not.
Chairman Specter. Senator Grassley?
Senator Grassley. I have a much more positive view of you
than has just been expressed.
[Laughter.]
Senator Grassley. I can't be cynical about your judging. In
fact, maybe from what I have criticized the Supreme Court in a
long period of time, I might feel you are too cautious, too
willing to follow precedent.
But I think in regard to Vanguard, the point ought to be
made that you did nothing wrong. You didn't violate any law or
any ethics rule. And the point is being made that maybe you
didn't remember a promise that you had made to this Committee,
but let me assure you, don't lose any sleep over that. If
Senators kept every word they made to their constituents, there
wouldn't be any Senators left. There is always shortness of
memory and without ill intent, whether it is on the part of a
Senator or whether it is on the part of Judge Alito.
I hope the viewing public is impressed by your intellect
and your legal capabilities and your judicial record. Clearly,
they are seeing that you have the kind of background and
practical experience that it takes to be a Supreme Court
Justice. In addition, I think you have demonstrated now after
five or six of us asking you questions that you are very candid
in answering questions so far and being honest with our
Committee.
These nomination hearings that we are holding are, of
course, a unique opportunity for all of us, Senators and the
public, to explore more in depth how Supreme Court nominees
view the roles of justice, how a nominee approaches
constitutional interpretation and precedent, as well as a
nominee's appreciation of the separate branches of government,
and you have been involved in all of those discussions already
this morning. It is unfortunate that some extreme liberal
groups have attacked your commitment to the law as well as your
honesty and integrity, but now you are doing your best, and I
think doing a good job, of setting the record straight.
So before I ask you some questions, I want to bring up some
of these issues that have been brought up against you, and you
don't necessarily have to respond in any way. I just think it
is points that ought to be made as I see you. I am only one
Senator, but I think I have had a good opportunity to study you
and particularly your cases.
I would like to address these ethics charges that we have
seen generated by some of the left-wing liberal interest groups
and even my colleagues on the other side of the aisle. These
allegations are just plain absurd. You are going to see some
charts that hopefully will be held up that I am not going to
point to, but bring up some of these charges, because I think
we want to prove that these allegations are absurd. It is
puzzling to me that anyone would actually believe these claims,
especially when people who know Judge Alito the best, people
who have known him for a long period of time and who have
worked closely with him, better than any of our Senators would
know you, they all say that you are a man of honor, integrity,
and principle. They have no question about that.
The fact is that the ABA looks at issues such as integrity
and ethics when it evaluates a judicial nominee and it found
you, Judge Alito, to be unanimously well qualified, a rating
that Democrats have always claimed to be a gold standard. The
ABA didn't find a problem with Judge Alito's record.
Moreover, several leading ethicists from across the
political spectrum reviewed these allegations and they all
agreed that you, Judge Alito, acted properly and that none of
these charges have merit. It says in a letter from George Mason
University Law Professor Ronald Rotunda, already referred to by
members, and in a letter to Chairman Specter, quote, ``Neither
Federal statute nor Federal rules nor Model Code of Judicial
Conduct of the American Bar Association provide that a judge
should disqualify himself in any case involving a mutual fund
company,'' and they give as examples Vanguard, Fidelity, T.
Rowe Price, ``simply because a judge owns mutual funds that the
company manages and holds in trust for a judge,'' end of quote.
So basically, according to law, Judge Alito was not required to
recuse himself in the Vanguard case, but he did it anyway.
So let me repeat, five leading ethicists all say Judge
Alito did nothing wrong. Professor Thomas Morgan, quote, ``In
my opinion, Judge Alito's participation in the Vanguard case
was in no way improper, nor does it give any reason to doubt
that he would fully comply with his ethical responsibilities,
if confirmed.''
And Professor Steven Lubet and David McGowan wrote, ``You
do not need to be a fan of Alito's jurisprudence to recognize
that he is a man of integrity. Other judges and Justices would
do well to follow this example,'' end of quote.
In addition, no complaint filed against Judge Alito has
ever been validated, and to top it off, we have heard glowing
statement after glowing statement from folks closest to the
Judge, your law clerks, Republicans and Democrats alike, as
well as lawyers and judges who practiced before and worked with
the Judge on a daily basis. These people know this nominee best
and they all say that he is a man of humility, a man of
principle, and they don't have any question about the Judge's
integrity.
So it is patently unfair that some folks, intent on
torpedoing this nomination, are trying to give these
allegations weight that they don't deserve. It should be clear
to everyone that this is a blatant tactic to tar Judge Alito's
honorable and distinguished judicial record, and I hope this
puts to rest these outrageous claims that Judge Alito doesn't
have the integrity to be a Supreme Court Justice. It is
outlandish and should be rejected.
I am now getting to a question that I want to ask you about
Executive power. Some of your critics have questioned your
ability, and we have just heard it recently, to be independent
from the Executive branch. They pointed principally to your
work as a lawyer for the Department of Justice 20 years ago,
suggesting that you would just rubber-stamp administration
policy. I would like to give you an opportunity to address
this. So, Judge Alito, do you believe that the Executive branch
should have unchecked authority?
Judge Alito. Absolutely not, Senator.
Senator Grassley. Judge Alito, you do understand that under
the doctrine of separation of powers, the Supreme Court has an
obligation to make sure that each branch of government does not
co-opt authority reserved to the coordinate branch, and do you
understand that where constitutionally protected rights are
involved, the courts have an important role to play in making
sure that the Executive branch does not trample those rights?
Judge Alito. I certainly do, Senator. Each branch has very
important individual responsibilities and they should all
perform their responsibilities.
Senator Grassley. So clarify for me. Do you believe that
the President of the United States is above the law and the
Constitution?
Judge Alito. Nobody in this country is above the law, and
that includes the President.
Senator Grassley. Judge Alito, would you have any
difficulty ruling against the Executive branch of the Federal
Government if it were to overstep its authority in the
Constitution?
Judge Alito. I would not, Senator. I would judge the cases
as they come up and I think that I believe very strongly in the
independence of the judiciary. I have been a member of the
judiciary now for the past 15-and-a-half years and I understand
the role that the judiciary has to play, and one of its most
important roles is to stand up and defend the rights of people
when they are violated.
Senator Grassley. This first question is very general. It
is a new area. I would like to explore in detail what you
understand to be the proper role of a judge in a democratic
society. So could you generally give me what your views are on
this approach?
Judge Alito. Yes. Our Constitution sets up a system of
government that is democratic. So the basic policy decisions
are made by people who are elected by the people so that the
people can control their own destiny. But the Constitution
establishes certain principles that can't be violated by the
Executive branch or by the legislative branch. It sets up a
structure of government that everybody has to follow and it
protects fundamental rights. And it is the job of the judiciary
to enforce the provisions of the Constitution and to enforce
the laws that are enacted by Congress in accordance with the
meaning that Congress attached to those laws, not to try to
change the Constitution, not to try to change the laws, but to
be vigilant in enforcing the Constitution and in enforcing the
laws.
Senator Grassley. What do you think about judges allowing
their own political and philosophical views to impact on any
jurisprudence? Second, do you believe that there is any room
for a judge's own value or personal beliefs when he or she
interprets the Constitution?
Judge Alito. Judges have to be careful not to inject their
own views into the interpretation of the Constitution, and for
that matter, into the interpretation of statutes. That is not
the job that we are given. That is not authority that we are
given. Congress has the law-making authority. You have the
authority to make the policy decisions and it's the job of the
judiciary to carry out the policy decisions that are made by
Congress when it's enacting statutes.
Senator Grassley. Further explanation on that point, three
sub-parts. Do you believe that Justices should consider
political dimensions of controversial cases? Do you believe
that when faced with hard cases, the Supreme Court should look
at pleasing the home crowd or splitting the baby? And what is
the proper role of the Supreme Court in deciding highly charged
cases, meaning, I suppose in most cases, we would be talking
about politically charged cases?
Judge Alito. The Framers of the Constitution made a basic
decision when they set up the Federal judiciary the way they
set up it, and there's a reason why they gave Federal judges
life tenure, and that is so that they will be insulated from
all of the things that you mentioned. They will not decide
cases based on the way the wind is blowing at a particular
time, that at a time of crisis, for example, when people may
lose sight of fundamental rights, the judiciary stands up for
fundamental rights, that it is not reluctant to stand up for
the unpopular and for what the Court termed insular minorities,
that the Constitution--that the judiciary enforces the
Constitution and the laws in a steadfast way and not in
accordance with the way the wind is blowing.
Senator Grassley. Let us look at the Bill of Rights and
many other amendments that are often praised in broad, spacious
terms. If a judge was so inclined, he or she could expand on
the interpretation, use, and effect of many provisions of the
Constitution. Do you agree with the school of thought that
takes the position that when Congress and the Executive branch
are slow or do not act in a particular manner, act at all, let
us say, then the Supreme Court would have a license to create
solutions based on some of the broad wording contained in the
Constitution? Do you think that this is a proper role for the
Supreme Court, or do you take the position that judges have a
duty to respect constitutional restraints?
Judge Alito. Judges have to respect constitutional
restraints. They have to exercise what's called judicial self-
restraint because there aren't very many external checks on the
judiciary on a day-to-day basis. So the judiciary has to
restrain itself and engage in a constant process of asking
itself, is this something that we are supposed to be doing or
are we stepping over the line and invading the area that is
left to the legislative branch, for example. The judiciary has
to engage in that on a constant basis.
Senator Grassley. Well, just suppose that Congress had not
even acted in a certain area and there are people that are
bringing cases before the court that would give an opportunity
to fill in on something that Congress didn't do. What about
in--
Judge Alito. The judiciary is not a law-making body.
Congress is the law-making body. Congress has the legislative
power and the judiciary has to perform its role and not try to
perform the role of Congress or the Executive.
Senator Grassley. I don't know whether you have ever had a
case where the Framers--where you are dealing with the problems
that the Framers maybe in broad ways in the Constitution
couldn't provide for, but how would you apply the words of the
Constitution into problems that the Framers could not have
foreseen?
Judge Alito. There are very important provisions of the
Constitution that are not cast in specific terms, and I think
for good reason. They set out a principle, and then it is up to
the judiciary to apply that principle to the facts that arise
during different periods in the history of our country.
The example that I like to cite here is the prohibition
against unreasonable searches and seizures in the Fourth
Amendment. Now, this goes all the way back to the adoption of
the Fourth Amendment at the end of the 18th century and most of
the types of searches that come up today are things that the
Framers never could have anticipated. They couldn't foresee
automobiles or telephones or cell phones or the Internet or any
of the other means of communication that have prevented new
search and seizure issues. But they set out a good principle,
and the principle is that searches can't be carried out unless
they're reasonable, and generally, there has to be a warrant
issued by a neutral and detached magistrate before a search can
be carried out.
And so as these new types of searches have arisen and new
means of communication have come into practice, the judiciary
has applied this principle and the legislative branch has
applied the principle in statutes like the wiretapping statute
to the new situations that have come up.
Senator Grassley. What factors, if any, and there may not
be any, but what factors, if any, are there which can affect a
judge's interpretation of the text of the Constitution? Can
these factors be determined and applied without involving
personal bias of judges?
Judge Alito. I think they can. There would be no, I think,
basis for judges to exercise the power of judicial review if
they were doing nothing different from what the legislature
does in passing statutes. So judges have to look to objective
things, and if it's a question of absolutely first impression,
and there aren't that many constitutional issues that arise at
this point in our history that are completely issues of first
impression, you would look to the text of the Constitution and
you would look to anything that would shed light on the way in
which the provision would have been understood by people
reading it at the time.
You certainly would look to precedent, which is an
objective factor, and most of the issues that come up in
constitutional law now fall within an area in which there is a
rich and often very complex body of doctrine that has worked
out. Search and seizure is an example. Most of the issues that
arise concerning--freedom of speech is another example. There
is a whole body of doctrine dealing with that, and that's
objective and you would look to that and you would reason by
analogy from the precedents that are in existence.
Senator Grassley. Let me bring up the tension between
majority rule and individual freedoms. This involves the
tensions between the American ideal of democratic rule and the
concept of individual liberties, where neither the majority nor
the minority can be fully trusted to define the proper spheres
of our democratic authority and liberty. I assume that you
agree that there is tension that has to be resolved?
Judge Alito. There is tension because our system of
government is fundamentally a democratic system, as I said. The
authority to make the basic policy decisions that affect
people's lives, most of them, most of those decisions are to be
made by the legislature and by the Executive in carrying out
the law. But the judiciary has the responsibility to exercise
the power of judicial review. And so if something comes up that
violates the Constitution, then it's been established now going
all the way back to Marbury v. Madison, if that comes up in a
case, it is the duty of the judiciary to say what the law is
and to enforce the law in that decision, and if that means
saying that something that another branch of government has
done is unconstitutional, then that's what the judiciary has to
do.
Senator Grassley. How would you go about your duties as a
Justice in determining where the right of the silent majority
ends and where the right of the individual begins? What
principles of constitutional interpretation help you to begin
your analysis of whether a particular statute infringes upon
some individual right?
Judge Alito. I would look to the text of the provision. I
would look to anything that sheds light on what that would have
been understood to mean. I would look to precedent, and as I
mentioned a minute ago, I think in most of the areas now where
constitutional issues come up with some frequency, there is a
body of precedent. That would be--that shapes the decision.
That's generally what is going to dictate the outcome in the
case, and if it's a new question, then usually the judiciary
will see where it fits into the body of precedent and reason by
analogy from prior precedents.
Senator Grassley. Some judges and scholars believe that in
resolving this dilemma, the court's obligation to the intent of
the Constitution are so generalized and remote that judges are
free to create a Constitution that they think best fits today's
changing society. What do you think of such an approach?
Judge Alito. Judges don't have the authority to change the
Constitution. The whole theory of judicial review that we have,
I think is contrary to that notion. The Constitution is an
enduring document and the Constitution doesn't change. It does
contain some important general principles that have to be
applied to new factual situations that come up. But in doing
that, the judiciary has to be very careful not to inject its
own views into the matter. It has to apply the principles that
are in the Constitution to the situations that come before the
judiciary.
Senator Grassley. I think you heard in opening comments
some of the members of this Committee that they view the courts
as a place taking the lead in creating a more just society. Is
that a role for the courts, and I don't know whether you want
to call this judicial activism, but I would, is it ever
justified?
Judge Alito. Well, I think that if the courts do the job
that they are supposed to do, they will produce, we will
produce a more just society. I think if you take a position as
a Federal judge, you have to have faith that if you do your
job, then you will be helping to create a more just society.
The Constitution and the constitutional system that we have is
designed to produce a just society.
It gives different responsibilities to different people.
You could think of a football team or you could think of an
orchestra where everybody has a different part to play, and the
whole system won't work if people start playing--start
performing the role of someone else. Everyone in the system has
to perform their role, and I think you have to have faith, and
I think it's a well-grounded faith, that if you do that, if the
judiciary does what it is supposed to do, the whole system will
work toward producing a more just society.
Senator Grassley. I want to go back and expand on a point I
referred to as maybe Congress not acting some time and what the
Court should do about that. This was a line of questioning that
I also asked Chief Justice Roberts when he was before us. At
that time, I referred to the confirmation of Justice Souter,
and Justice Souter responded to my questions regarding the
interpretation of statutory law by speaking about the Court's
filling vacuums in law left by Congress. Do you believe that
the Supreme Court should fill in vacuums in the law left by
Congress, or is this a way for Justices to take an activist
role in that they get to decide how to fill in generalities and
resolve contradictions in law? If you are confirmed by the
Senate, do you believe that your job is to fill in vacuums?
Judge Alito. Well, I don't know exactly what Justice Souter
was referring to when he said that, but just speaking for
myself, I think that it is our job to interpret and to enforce
the statutes that Congress passes and not to add to those
statutes and not to take away from those statutes.
Senator Grassley. Further on judicial restraint, are there
any situations where you believe it is appropriate for a
Supreme Court Justice to depart from the issue at hand and
announce broad sweeping constitutional doctrine, and if you do,
could you please describe in detail what those circumstances
might be?
Judge Alito. I think that the judiciary should decide the
case--I think judges should decide the case that is before
them. I think it's hard enough to do that and get it right. If
judges begin to go further and announce--and decide questions
that aren't before them, or issue opinions or statements about
questions that aren't before them--from my personal experience,
what happens when you do that is that you magnify the chances
of getting something wrong. When you have an actual concrete
case of controversy before you, focus on that. It improves your
ability to think through the issue and it focuses your thinking
on the issue and it makes for a better decision if you just
focus on the matter that is at hand and what you have to decide
and not speak more broadly.
If you speak more broadly, I think there is a real chance
of saying something that you don't mean to say, or suggesting
something that you don't mean to say and deciding questions
before they have been fully presented to you, before you have
heard all the arguments about this other question that isn't
really central to the case that is before you.
Senator Grassley. You might sometime be faced with what
people might call a bad law or some unpopular law which
nonetheless might be constitutional. Do you believe that--I
guess the question should be, what do you believe would be the
court's role in that instance? Is the court ever justified in
correcting what might be a problem out there, presumably
created by a law Congress passed?
Judge Alito. Courts do not have the authority to repeal
statutes or to amend statutes, and so once a court has
determined what a statute means, then it's the obligation of
the courts to enforce that statute. Now, sometimes when a case
of statutory interpretation comes before a court and your first
look at the statute seems to produce an absurd result, let's
say, or a very unjust result, then I think the judiciary has
the obligation to go back and say, well, is this really what
the statute means, because the legislature generally is not
going to want to produce a result like that. So maybe our first
look at this statute has produced an interpretation that's it's
an incorrect statute. So I think we have to do that.
And occasionally, a statute will come along or an
administrative regulation will come along and the way it's
applied in a particular case shows that there's a problem with
the statute or the regulation that maybe Congress didn't
anticipate or the administrative agency didn't anticipate. And
in those instances, while I think it is the obligation of the
judiciary to apply the statute that is before the judiciary, I
think it is proper for us to say, look, this shows how this
statute or this regulation plays out in the real world in this
situation and maybe you didn't think about that and maybe
that's something that you want to take into account if you're
going to revise the statute or issue a new regulation. I think
those are proper roles for us.
Senator Grassley. What is your position regarding results-
oriented jurisprudence, where the rationale is made secondary
to the actual result reached? When, if ever, is results-
oriented jurisprudence justified?
Judge Alito. Results-oriented jurisprudence is never
justified because it is not our job to try to produce
particular results. We are not policymakers and we shouldn't be
implementing any sort of policy agenda or policy preferences
that we have.
Senator Grassley. In the past few decades, certain interest
groups and legal scholars and even some Members of Congress
have tried to convert the Supreme Court from a legal
institution into political, social, and cultural ones. Because
of this, the Court has morphed in that direction, I believe,
becoming a battlefield for warring interest groups who are
raising and spending millions of dollars on disinformation
campaigns and website blogs. There are even blogs going on all
the time about this hearing. Do you think it is because the
Supreme Court has injected itself into policy issues better
left to the elected branches of government, or has the Supreme
Court tried to act as kind of a roving commission, attempting
to solve perceived societal problems, or maybe it is none of
the above? What do you think can be done to restore the sense
of constitutional balance between the Supreme Court and the
Executive and legislative branches of government and
understanding all are co-equal?
Judge Alito. I think the branches are co-equal and I think
that the judiciary as a whole, including the Supreme Court,
must always be mindful of the role that it is supposed to play
in our system of government. It has an important role to play,
but it's a limited role and it has to do what it is supposed to
do vigilantly, but it also has to be equally vigilant about not
stepping over the bounds and invading the authority of Congress
or invading the authority of the Executive or other government
officials whose actions may be challenged. I think the
challenge for the judiciary.
Senator Grassley. Thank you, Judge Alito.
Chairman Specter. Thank you, Senator Grassley.
Senator Biden?
Senator Biden. Thank you, Mr. Chairman. I understand,
Judge, I am the only one standing between you and lunch, so I
will try to make this painless.
Judge, I would like to say a few very brief things at the
outset. I am puzzled, and I suspect you may be puzzled by some
of the questions. I don't think anybody thinks you are a man
lacking in integrity. I don't think anybody thinks that you are
a person who is not independent. I think that what people are
wondering about and puzzled about is not whether you lack
independence, but whether you independently conclude that the
Executive trumps the other two branches. They wonder when you
back--granted, it is back in 1985 or 1984 when you wrote, ``I
do not question the Attorney General should have this immunity,
has absolute immunity. But for tactical reasons,'' et cetera.
So people are puzzled, at least some are puzzled, and so I
don't want you to read any of this, at least from my
perspective, as I have read it so far, that people think that
this is a bad guy. What people are puzzled about with the
recusal issue was under oath you said, ``I will recuse myself
on anything relating to''--and then a case comes up. So they
are looking for an explanation. So it is not about whether you
are profiting or whether you are, you know, all this malarkey
about what you broke judicial ethics. It is a simple kind of
thing. You know, you under oath said, ``I promise if this ever
comes up, I will recuse myself,'' and then you gave an
explanation. You know, it slipped, you forgot, it had been
years earlier, et cetera.
So don't read it as, you know, this is one of these things
where we know you are--the people I have spoken to on your
court--and it is my circuit--have a very high regard for you,
and I think you are a man of integrity. The question is
sometimes some of the things you have said and done at least
puzzle me. And I would like to--and one of the things--this is
not part of the line of questioning I wanted to ask, but I did
ask you when you were kind enough to come to my office about
the Concerned Alumni of Princeton. Were you aware of some of
the other things they were saying that had nothing to do with
ROTC? Because there was a great deal of controversy.
I mean, I can remember--I can remember this. My son was--
well, anyway, he ended up going to that other university, the
University of Pennsylvania. But I remember, you know,
Princeton. I had spoken on campus in the early 1970s. This was
a big thing, up at Princeton at the Woodrow Wilson School. And
I remember--I didn't remember Bill Frist, but I remember that
there was this disavowing, that Bill Bradley, this great
basketball star and now U.S. Senator, was, you know,
disassociating himself with this outfit, that there was a
magazine called Prospect. I remember the magazine. And all I
want to ask is: Were you aware of the other things that this
outfit was talking about? Were you aware of this controversy
going on in 1972?
Judge Alito. Senator, I don't believe that I was, and when
it was mentioned that Senator Bradley had withdrawn from a
magazine, that didn't ring any bells for me. I did not recall
anything like that.
Senator Biden. It was a pretty outrageous group. I mean, I
believe you that you were unaware of it, but here I was,
University of Delaware graduate, a sitting U.S. Senator. I was
aware of it because I was up there on the campus. I mean, it
was a big deal. It was a big deal, at least in our area, the
Delaware Valley, if you know Princeton, Penn, the schools
around there had this kind of--because the big thing was going
on at Brown at the time as well.
And, by the way, for the record, I know you know. When you
stated in your application that you are a member--you said in
1985, ``I am a member''--they had restored ROTC. I mean, ROTC
was back on the campus. But, again, this is just by way of, you
know, why some of us are puzzled, because if I was aware of it
and I didn't even like Princeton.
[Laughter.]
Senator Biden. No, I mean, I really didn't like Princeton.
I was an Irish Catholic kid who thought it hadn't changed like
you concluded it had. I mean, you know, I admit, I have a
little--you know, one of my real dilemmas is I have two kids
who went to Ivy League schools. I am not sure my Grandfather
Finnegan will ever forgive me for allowing that to happen.
But all kidding aside, I was not a big Princeton fan, and
so maybe that is why I focused on it and no one else did. But I
remember at the time.
The other thing is, Judge, you know, the other thing you
should be aware of--and kind of don't take this personally what
is going on here--every nominee who comes before us is viewed
by all the Senators, left, right, center, Democrat, Republican,
at least on two levels, at least in my experience here. One is,
the first one, individual qualifications and what their
constitutional methodology, their views are, their philosophy.
But the other is--and it always occurs--whose spot they are
taking and what impact that will have on the Court. Everybody
wrote with Roberts after the fact--and a lot of people voted
for Roberts that were doubtful. I was doubtful. I voted no. But
he was replacing Rehnquist. So Roberts for Rehnquist, you know,
what is the worst that can happen, quote-unquote, or the best
that can happen?
Now, I am not being facetious. What is the best or worst?
If you are conservative, the best that can happen is he is as
good as Rehnquist. From the standpoint of someone who is a
liberal, the worst that can happen, he is as good as Rehnquist.
So, I mean, but you are replacing--I mean, we can't lose
this, and so people understand this. You are replacing someone
who has been the fulcrum on an otherwise evenly divided Court.
And a woman who most scholars who write about her and in a
retrospective about her say this is a woman who viewed things
from--the phrase you have used--a real-world perspective. This
was a former legislator. This was a former practitioner. This
was someone who came to the bench and applied--to her critics,
she applied too much common sense. Critics would say that she
was too sensitive to the impact on individuals, you know, what
would happen to an individual. So her focus on the impact on
individuals was sometimes criticized and praised. It is just
important you understand, at least for my questioning, that
this goes beyond you. It goes to whether or not your taking her
seat will alter the constitutional framework of this country by
shifting the balance, 5-4, 4-5, one way or another.
And that is the context in which at least I want to ask you
my questions after trying to get some clarification or getting
some clarification from you on Concerned Princeton--because,
again, a lot of this just is puzzling, not able to be answered,
just puzzling.
Judge, you and I both know--and clearly one of the
hallmarks, at least in my view, of Justice O'Connor's position
was she fully understood the real world of discrimination. I
mean, she felt it. Graduated No. 2 in her class from Stanford,
could not get a job, was offered a job by law firms. Granted,
she is a little older than you are, but could not get a job
because she was a woman. They offered her a job as a secretary.
And so she understood what I think everybody here from both
ends of the spectrum here understand, that discrimination has
become very sophisticated. It has become very, very
sophisticated, very much more subtle than it was when I got
here 34 years ago or 50 years ago. And employers don't say
anymore, you know, ``We don't like blacks in this company,'' or
``We don't want women here.'' They say things like, ``Well,
they wouldn't fit in,'' or, you know, ``They tend to be too
emotional,'' or, you know, ``a little high-strung.'' I mean,
there are all different ways in which now it has become so much
more subtle. And that is why we all, Democrat and Republican,
wrote Title VII. We wrote these laws to try to get at what we
observed in the real world.
What we observed in the real world is it is real subtle,
and so it is harder to make a case of discrimination, even
though there is no doubt that it still exists.
And so I would like to talk to you about a couple of anti-
discrimination cases. One is the Bray case. In that case, a
black woman said she was denied a promotion for a job that she
was clearly qualified for--there was no doubt she was
qualified--and she said, ``I was denied that job because I am a
black woman.'' And it was, as I said, indisputable she was
qualified. It was indisputable that the corporation failed to
follow their usual internal hiring procedures. And the
corporation gave conflicting explanations as to why they
reached a decision to hire another woman who they asserted was
more qualified than Ms. Bray.
Now, the district court judge said, you know, Ms. Bray had
not even made a prima facie case here--or she made a prima
facie, but she had not made a sufficient showing to get to a
jury, I am finding for the corporation here. And Ms. Bray's
attorney appealed, and it went up to the Third Circuit. And you
and your colleagues disagreed. Two of your colleagues said, you
know, Ms. Bray should have a jury trial here, and you said, no,
I don't think she should, and you set out a standard, as best I
can understand it. And I want to talk to you about it. And your
colleagues said that if they applied your standard in Title VII
cases, discrimination cases, that it would effectively, their
words, ``eviscerate Title VII,'' because, they went on to say,
it ``ignores the realities of racial animus.'' They went on to
say that ``Racial animus runs so deep in some people that they
are incapable of acknowledging that a black woman is qualified
for a job.''
But, Judge, you dismissed that assertion. You said that the
conflicting statements that the employer made were just loose
language, and you expressed your concern about allowing
disgruntled employees to impose costs of a trial on employers.
And so your colleagues thought you set the bar, I think it is
fair to say, pretty high in order to make the case that it
should go to a jury.
Can you tell me what the difference is between a business
judgment as to who is most qualified--because actually you said
this comes down to ``subjective business judgment''--and
discrimination? You said, ``Subjective business judgment should
prevail unless the qualifications of the candidate are
extremely disproportionate.'' What is the difference between
that in today's world and discrimination? I know you want to
eliminate discrimination. Explain to me how that test is
distinguishable from just plain old discrimination.
Judge Alito. Well, this case was one of quite a few that we
get that are on the line, and I think when you think about the
nature of the appellate system, it stands to reason that it is
going to work out that way. The really strong cases tend to
settle; the really weak cases are either dismissed and not
appealed, or they settle for modest amounts. So the ones that
are hotly contested on appeal tend to be the ones that are
close to the line, whatever the legal standard is.
Now, four Federal judges looked at the facts in this case.
One was Judge Maryanne Trump Barry, who was then the district
court judge and is now one of my colleagues on the Third
Circuit. I was one. And we thought the evidence was not quite
sufficient. And then my colleague, Theodore McKee, and Judge
Green, a district court judge from Philadelphia, a fine
district court judge, sitting by designation, thought that the
evidence was sufficient. And I think that division illustrates
this was a factual case on which reasonable people would
disagree. This was a case in which there was no direct evidence
of discrimination, and I could not agree with you more that we
can't stop there. There are subtle forms of discrimination, and
the judicial process has to be attentive to the fact that
discrimination exists and today a lot of it is driven
underground.
But all there was in this case were--all that the plaintiff
could point to to show that there were facts from which you
could infer discrimination were a very--what looked like a
really minor violation of the company's internal practices.
They had a policy under which if somebody was being considered
for a promotion, they would interview that person and they
would decide we are going to promote or we are not going to
promote. And if they decided they were not going to promote,
then they were supposed to tell that person, ``We've decided
we're not going to promote you,'' before they go on to
interviewing the next person. And in this instance, it appeared
that they interviewed Ms. Bray, and they decided they weren't
going to promote her. And then they interviewed the other
candidate, Ms. Real, before they told Ms. Bray that they
weren't going to promote her.
There was no--they had nothing to gain by doing that. So it
is a fact to be considered--
Senator Biden. Judge, I don't mean to interrupt. I want to
make sure I understand. I think the reason for that policy is
that that is the way people do discriminate. For example, you
get somebody in, a woman, a black, a Hispanic, whomever, who is
qualified but you don't want to hire them. And if you say, OK,
in your own mind, I am going to keep looking until I find
someone who is more qualified so that I don't have to hire--I
mean, just so we both understand. That is why that rule is
there. It is not just a little deal. It is the real world. That
is how people work. People don't say anymore, ``I am not going
to hire that man over there because he is black'' or ``he is
Jewish'' or ``she is a woman.'' They don't do that anymore.
What they do is they look around and they keep looking until
they find someone, aha, I got one here who is a Rhodes scholar,
I got one here who is a white male who happened to have
experience doing it. That is why they have that rule.
So, again, I am not questioning your commitment to civil
rights. What I do wonder about is whether or not you--it is
presumptuous of me to say this--whether you fully appreciate
how discrimination does work today. That is why the corporation
set that rule up: Interview the one inside the company, that
was our practice, hire inside, tell them they have the job or
not, so that the supervisor, who may not want to work with a
black woman, doesn't get a chance to go, ``I am going to keep
looking. Send me in''--``find me somebody who has some
experience somewhere else.'' That is why they have the rule,
right?
Judge Alito. Well, I think you make a good point, Senator,
but in this instance, my recollection is--and, in fact, I am
quite sure of this. These were both people who were from the
inside. They were both Marriott employees. And I think they
were both being considered for the position at the time. So it
wasn't an instance in which they interviewed Ms. Bray and then
they said, ``Well, she is qualified, but we really don't want
to hire her. Let's keep looking.''
If there had been evidence to that effect, then I would
certainly think for the reasons that you've outlined that you
could draw a pretty substantial inference of an intent to
discriminate from that.
Senator Biden. Well, Judge--
Judge Alito. But nothing like that was presented to us in
that case, as I remember it.
Senator Biden. Weren't the facts in that case also that
there was a Mr. Josten, who had held the very job--he was
leaving the job. That is the job being filled. He said, ``In my
opinion, which I let be known''--excuse me. I beg your pardon.
It wasn't Mr. Josten. The person who was giving up the job
said, ``In my opinion, I let it be known to Mr. Josten''--the
guy doing the hiring--``which Mr. Josten was aware of, that
Bray was more than qualified to take over my position as
Director of Services at Park Ridge. To this day''--this is a
quote--``I cannot understand why she was not offered the
position.'' That was in the record. It was in the record that
Josten had said in a deposition under oath she is not
qualified, when she clearly was qualified.
I mean, I guess what I am curious about is why in a close
case like this wouldn't you let the jury decide it? Why did you
become essentially the trier of fact? I mean, what was your
thinking?
Judge Alito. Well, my thinking was that the standard we
were to apply was could a reasonable jury find that
discrimination was proven here. And it was my view and it was
the view of the district judge that a reasonable jury couldn't
find that. The district judge actually looked at the
qualifications of the two candidates and said, ``This isn't
even close. Ms. Real is much better qualified than Ms. Bray.''
Now, I didn't say that and I didn't think that. I thought
that they had somewhat different qualifications, and a
reasonable person could view it either way. But there just
wasn't anything that I saw that a reasonable person could point
to as a basis for a reasonable inference of an intent to
discriminate.
Senator Biden. Well, again, I am puzzled by this, just
trying to understand your reasoning, because as you accurately
point out, you didn't say the one was more qualified. You said
they were equally qualified. And that is what puzzled me. And
what really got my attention in the case was you have a
collegial court, you know, the Third Circuit. I mean, that is
my observation. I don't follow it quite as closely as the man
who has appointed about everybody on that court, our Chairman.
But I follow it very closely, and I thought it was pretty
strong language that the majority of your panel said that your
standard would eviscerate the Ninth Amendment. That in Third
Circuit language is a pretty strong statement.
Let me move on to another case, if I may, the Sheridan
case, another discrimination case. Again, a little puzzling to
me. This is a case where you were the only judge in this
circumstance out of 11 judges on your circuit who heard the
appeal who ruled that a jury trial should have been overruled--
a jury verdict should have been overruled. In this case, a
woman alleged that she was constructively discharged. For the
non-lawyers listening to this, it means she basically was
demoted to the point where she was, as a practical matter,
forced to quit.
This woman alleged that she was constructively discharged,
and she argued that it occurred after she had brought a
discrimination claim and where the record showed that her
employer said, ``I am going to hound you like a dog.'' It was
in the record. ``I am going to hound you like a dog for
bringing this discrimination claim.''
Now, there was more than one issue. One was whether this
was vindictive--I forget the proper phrase--or whether or not
she should have been promoted. The third was whether she was
constructively discharged.
And the jury heard the case and said, ``We conclude she was
constructively discharged,'' i.e., she was basically forced
out, and she was forced out because she was being discriminated
against. And 10 out of 11 of your colleagues reached that same
conclusion.
But you said--and this is what I want you to explain to me.
You said, ``An employer may not wish to disclose his real
reasons for taking punitive action against someone or not
hiring someone or for his animosity toward someone.'' And you
went on to say, ``The reason for the animosity on the part of
the employer might be based on sheer personal antipathy,''
which is OK.
Now, again, this is a matter of real world versus, you
know, theoretically. Can you tell me how you can tell the
difference when an employer is saying, ``Ms. Feinstein, I am
not going to hire you because the person seeking the job has a
Rhodes scholarship and I like him better, and it turns out they
weren't a Rhodes scholar. The real reason is I just don't like
your glasses. I don't like the way you look.''
I am not being facetious. That is--
[Laughter.]
Senator Leahy. I like the way you look, Dianne. You look
OK.
Senator Biden. For the record, I am a fan of the woman from
California.
But all kidding aside, I mean, that is how it read to me,
that sheer personal antipathy is OK even when the employer's
reason for not hiring the person toward whom they showed sheer
personal antipathy wasn't true. How do you distinguish that
from discrimination, subtle discrimination? That is tough for
me.
Judge Alito. Well, this case concerned an issue that had
really divided the courts of appeals at the time when our court
addressed it. And the courts of appeals--this gets into a
fairly technical question involving a Supreme Court case called
the McDonnell Douglas case. But to put it in simple terms, the
courts of appeals have divided into three camps on this. There
was the pretext-plus camp, which was the one that was the least
hospitable to claims by employees. There was the pretext-only
camp, which was the camp that was most favorable to employees.
And there was the middle camp. And my position was in the
middle camp, and when the issue went to the Supreme Court--and
it did a couple of years later--in Reeves v. Sanderson
Plumbing, Justice O'Connor wrote the opinion for the Supreme
Court, and she agreed with my analysis of this legal issue,
that in most instances pretext is sufficient. In fact, in the
vast majority of instances if the plaintiff can show or could
point to enough evidence to show that the reason given by the
employer is a pretext, is incorrect, then that is enough to go
to the jury. In the vast majority of cases, that is sufficient,
but not in every case, and that is what I said in Sheridan and
that is what Justice O'Connor said when she wrote the opinion
for the Supreme Court in Reeves v. Sanderson Plumbing.
Senator Biden. Well, I went back and read Reeves and I
looked at O'Connor's statements, and with all due respect you
could argue she used the same standard, but it is clear to me
she would have reached a different conclusion. She would have
been with your ten colleagues.
Here is what she said. She said in the Reeves case that she
would not send the case to the jury if, and I am quoting,
``One, the record conclusively revealed some other non-
discriminatory reason for the employer's decision.'' I fail to
see how the record conclusively showed that, and I doubt
whether she would have seen that.
Or, two, continuing to quote, ``If the plaintiff created
only a weak issue of fact as to whether the employer's reason
was untrue and there was abundant uncontroverted evidence that
no discrimination had occurred.'' It seems to me she is much
more prepared to give the benefit of the doubt to the employee
in that situation and you are much prepared to give the benefit
of the doubt to the employer.
I mean, by her own language, I find it hard to figure how
she would have reached the same substantive conclusion that you
did that a jury trial wasn't appropriate, notwithstanding the
fact that I think you make a good point that the test she said
was more like the test you said. But the real-world outcome, I
think, she would have been--presumptuous of me to say it--I
think it would have been 11 to 1 and not 10 to 2 had she been
on the court, but who knows?
Judge Alito. Well, Senator, I think the vote on my court
was a reflection of the standard that they applied and they did
not apply the Reeves v. Sanderson Plumbing standard. Of course,
Reeves hadn't been decided at that point, but they applied the
standard that said if the plaintiff can create a fact issue as
to whether it was pretextual, then that alone is sufficient. So
they didn't get into an evaluation of the sort of evidentiary
points that you were mentioning.
Senator Biden. Well, they kind of did talk--you would know
better than I, Judge. I don't mean to suggest I am correcting
you, but as I read the case, they did get into the minutia
about--
Judge Alito. They did.
Senator Biden [continuing]. The factual minutia. And in the
Reeves case, O'Connor, not that it is--because there are two
different cases we are talking about here; we are talking about
a similar rule, two different cases. O'Connor reversed the
Fifth Circuit decision and here is what she said when she
reversed it. She said that she reversed the lower court
because, quote, ``It proceeded from the assumption that a prime
facie case of discrimination combined with sufficient evidence
for the trier of fact to disbelieve the defendant's legitimate
non-discriminatory reason for its decision is insufficient as a
matter of law to sustain a jury finding of intentional
discrimination.''
It seems to me that is what you did. In my view, that is
what you did--that is the conclusion you reached in the
Sheridan case. She overruled in Reeves, as I read it. But at
any rate, as someone once said, it is your day job and we do
this part-time. We have other things like wars and foreign
policy to deal with, so I am not presuming to be as
knowledgeable about this as you are.
Let me move on to a third case very quickly--I only have
two-and-a-half minutes left--and it is the Casey case, Planned
Parenthood. And I don't care what your position is on abortion.
This is not about your abortion position. It is about your
reasoning here. As a matter of fact, with 2 minutes and 30
seconds, I probably can't get into the case. maybe I should do
it in a second round, but I should tell you now I want to talk
to you about, again, the real world here and kind of the
effects test.
And so for me, Judge, where I am still remaining somewhat
puzzled is on whether or not you--whether it is applying the
unitary Executive standard and what you mean by that or whether
it is the assertions made relative to how to look at
discrimination cases, which are difficult, you seem to come
down--I am not associating myself with the studies done--I
don't know enough to know whether they are correct or not--by
Cass Sunstein or others. I don't disagree with them.
But as I have tried diligently to look at your record, you
seem to come down more often and give the benefit of the doubt
to the outfit against whom discrimination is being alleged. You
seem to lean--in close cases, you lean to the state versus the
individual. Now, again, a lot of constitutional scholars would
argue that is perfectly correct.
All I am suggesting is if I am right--and we will get a
chance to do this again--if I am right, that would be a change
that will occur, more than subtle, on the bench, on this Court,
on a closely divided Court, which would take it in a direction
that I am not as comfortable with as others may be.
But at any rate, you have been very gracious. I appreciate
you being responsive, and I thank the Chair. And I want to note
for maybe the first time in history, Biden is 40 seconds under
his time.
[Laughter.]
Chairman Specter. Thank you very much, Senator Biden. It is
greatly appreciated.
We are going to stay in session for just ten more minutes
and call now on Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Mr. Chairman, let me begin by just asking the witness if
you would like to comment again on the unitary Executive. I
have this specifically in mind because while I think I
understood your explanation of it, Senator Biden just referred
to it and I thought maybe it would be useful to draw the
distinction that I heard you draw with respect to your
discussion of the unitary Executive power, if you could do
that, please.
Judge Alito. Yes, certainly, Senator. As I understand the
concept, it is the concept that the President is the head of
the Executive branch. The Constitution says that the President
is given the Executive power and the idea of the unitary
Executive is that the President should be able to control the
Executive branch, however big it is or however small it is,
whether it is as small as it was when George Washington was
President or whether it is as big as it is today or even
bigger.
It has to do with control of whatever the Executive is
doing. It doesn't have to do with the scope of Executive power.
It does not have to do with whether the Executive power that
the President is given includes a lot of unnamed powers or what
is often called inherent power. So it is the issue--it is the
difference between scope and control. And as I understand the
idea of the unitary Executive, it goes just to the question of
control. It doesn't go to the question of scope.
Senator Kyl. Of who eventually has the last say about
Executive power, which would be the President?
Judge Alito. Right.
Senator Kyl. OK, thank you. Now, I want to also ask you a
question which was asked of Judge Bork in his confirmation
hearing, and his answer, as I understand it, was not well
accepted by some Members of the Senate, was expressed as one of
the reasons for their opposition to him. So it is more than
just a mundane question, although it is a simple question.
By accepting the President's nomination, you have obviously
expressed a willingness to serve on the U.S. Supreme Court. So
my question is why would you want to serve on the U.S. Supreme
Court?
Judge Alito. I think it is an opportunity for me to serve
the country using whatever talent I have. I think that the
courts have a very important role to play, but it is a limited
role. So it is important for them to do a good job of doing
what they are supposed to do, but also not to try to do
somebody else's job.
And I think that this is an area for--this is a way in
which I can make a contribution to the country and to society.
I have tried to do that on the court of appeals and I would
continue to do that if I am confirmed for the Supreme Court.
Senator Kyl. Thank you. Now, let me ask you a question that
I also asked now Chief Justice John Roberts, and it is obvious
from my question that I do not support the use of foreign law
as authority in United States court opinions.
I mentioned to him the 2005 case of Roper v. Simmons, in
which the Supreme Court spent perhaps 20 percent of its legal
analysis discussing the laws of Great Britain, Saudi Arabia,
Yemen, Iran, Nigeria and China. And I reminded the Committee of
Justice Breyer's 1999 dissent from denial of cert in Knight v.
Florida, in which he relied on the legal opinions of Zimbabwe,
India, Jamaica and Canada in arguing that a delay caused by a
convicted murderer's repeated appeals, appeals brought by the
convict, should be considered cruel and unusual punishment.
I expressed my view that reliance on foreign law is
contrary to our constitutional traditions. It undermines
democratic self-government and it is utterly impractical, given
the diversity of legal viewpoints worldwide. And I would add
that it is needlessly disrespectful of the American people, as
seen through the widespread public criticism of the trend.
Now, with my cards on the table, I turn to you. What is the
proper role, in your view, of foreign law in U.S. Supreme Court
decisions, and when, if ever, is citation to or reliance on
these foreign laws appropriate?
Judge Alito. I don't think that foreign law is helpful in
interpreting the Constitution. Our Constitution does two basic
things. It sets out the structure of our Government and it
protects fundamental rights. The structure of our Government is
unique to our country, and so I don't think that looking to
decisions of supreme courts of other countries or
constitutional courts in other countries is very helpful in
deciding questions relating to the structure of our Government.
As for the protection of individual rights, I think that we
should look to our own Constitution and our own precedents. Our
country has been the leader in protecting individual rights. If
you look at what the world looked like at the time of the
adoption of the Bill of Rights, there were not many that
protected human--in fact, I don't think there were any that
protected human rights the way our Bill of Rights did.
We have our own law, we have our own traditions, we have
our own precedents, and we should look to that in interpreting
our Constitution. There are other legal issues that come up in
which I think it is legitimate to look to foreign law. For
example, if a question comes up concerning the interpretation
of a treaty that has been entered into by many countries, I
don't see anything wrong with seeing the way the treaty has
been interpreted in other countries. I wouldn't say that that
is controlling, but it is something that is useful to look to.
In private litigation, it is often the case--I have had
cases like this in which the rule of decision is based on
foreign law. There may be a contract between parties and the
parties will say this contract is to be governed by the laws of
New Zealand or wherever. So, of course, there, you have to look
to the law of New Zealand or whatever the country is.
So there are situations in litigation that come up in
Federal court when it is legitimate to look to foreign law, but
I don't think it is helpful in interpreting our Constitution.
Senator Kyl. Thank you. Now, let me close with this
question. In the Judiciary Committee's questionnaire to you,
you were asked about your views of judicial activism, and as
part of your answer you said something intriguing to me. You
said some of the finest chapters in the history of the Federal
courts have been written when Federal judges, despite
resistance, have steadfastly enforced remedies for deeply
rooted constitutional violations.
How does one determine that a constitutional violation is
deeply rooted, and can you elaborate on what you meant by that
and when Federal courts should be especially aggressive in
their use of equitable powers?
Judge Alito. Well, what I was referring to were the efforts
of Federal judges, lower Federal court judges in the South
during the days after the decision in Brown v. Board of
Education to try to implement that historic decision, despite
enormous public resistance at times. But they--this was an
example of the Federal judiciary not swaying in the wind of
public opinion. There was a lot of opposition and I am sure
that it didn't make them popular.
I have read a number of books concerning the situation in
which they found themselves, but on the whole they behaved--
they did what a Federal judge is supposed to do, which is that
they enforced the decision of the Supreme Court of the United
States that, after a long delay, vindicated what the Equal
Protection Clause of the 14th Amendment was supposed to mean,
which was to guarantee equal rights to people of all races.
Senator Kyl. Are there other examples that come to your
mind of that same application of power? It seems counter
intuitive, but when you think about it, it is absolutely
essential for the courts sometimes to buck public opinion and
enforce what may be considered unpopular laws.
Judge Alito. Well, there were some examples cited earlier
today when the courts said that the Executive had overstepped
the bounds of its authority. The Youngstown Steel case was
cited, and that is certainly an example where President Truman
thought that it was necessary to seize the steel mills so as
not to interfere with the war effort in Korea. But the Supreme
Court said that this was an overstepping of the bounds of
Executive authority.
There was a reference to United States v. Nixon where the
Supreme Court said that the President of the United States had
to comply with grand jury subpoena for documents and they stood
up for what they understood the law to mean, despite the fact
that there must have been great pressure against them in
another direction. So when situations like that come up, it is
the responsibility of the judiciary to hold fast.
Senator Kyl. Mr. Chairman, since there are just about 30
seconds left here, rather than ask another question, let me
just close with quoting three sentences from the letter sent by
the American Bar Association to you dated January 9. I thought
this was especially interesting in view of the subjects that
they dealt with--the integrity of the nominee, as well as his
abilities and character.
They said, ``Fifty years ago, a Supreme Court Justice wrote
of the traits of character necessary to serve well on the
Supreme Court. He referred to the ability to put one's passion
behind one's judgment instead of in front of it and to
demonstrate what he called dominating humility. It is the
belief of the Standing Committee that Judge Samuel Alito
possesses those same qualities.''
I think that is quite a testament to your character and
your integrity, and I am sure you appreciate the Bar
Association reaching that conclusion.
Judge Alito. Thank you very much, Senator.
Chairman Specter. We will now recess until 2:15, at which
time Senator Kyl will be recognized for 20 minutes, which is
the balance of his 30-minute first round.
Recess until 2:15.
[Whereupon, at 1:04 p.m., a luncheon recess was taken.]
[AFTERNOON SESSION 2:15 p.m.]
Chairman Specter. We will turn now to Senator Kyl, who has
20 more minutes on his first round of 30 minutes.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. First let me ask
unanimous consent to put three items in the record, one of
these items related to--actually, two of them relate to the
matter of the CAP that we have heard something about. I would
like to enter into the record two letters by Democratic
attorneys that make clear that Judge Alito has been extremely
helpful in advancing the interest of women and minorities. One
letter notes that as U.S. Attorney, he put women and minorities
in supervisory positions. The other is from the President-elect
of the National Bar Association for Women.
And also a Washington Post article from January 9th, in
which criminal defense lawyer and Democrat, Alberto Rivas, who
served in the U.S. Attorney's Office when Judge Alito was in
charge said, speaking of the judge, ``While he opposed numeric
hiring quotas, he took steps to diversify an office that had
the reputation of something of a white boys' club.
Mr. Chairman, I hope that this will help address what I
think is almost getting to be a--
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Kyl. Thank you. Secondly, there has been some
discussion of this Knight-Ridder article that has, to be my
understanding, been rather completely discredited, and I ask
unanimous consent that the attached document analyzing that
article be added to the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. Before the break, Senator Biden suggested
that--at least I understood him to suggest that there was no
reason to belong to this organization, CAP, in 1985 because
ROTC was safely on campus at that time.
Judge, let me ask you a question. Do you know what year you
joined the CAP?
Judge Alito. I don't know, Senator. I tried to rack my
memory about that, but as I said, if I had been active in my
membership, I think I certainly would have remembered that, and
if I had renewed the membership, I think I would remember that.
So my best reconstruction of this is that it probably was
sometime around the time when I wrote that statement.
Senator Kyl. Long after you were gone from the school.
Judge Alito. That's correct.
Senator Kyl. In that event, Mr. Chairman, I ask unanimous
consent to include in the record an article from the campus
newspaper, the Princeton Packet, dated February 12th, 1985,
which expressly explains that ROTC was a core motivation behind
the CAP in 1985.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. Thank you. Mr. Chairman, I noted with interest
a comment that Senator Durbin made in his opening statement
because it referred to a good friend and former colleague of
ours, Senator Simon, who put forth a pretty good test about
courts. He said that the real test is, is the Court restricting
freedom or expanding it? I thought about that because it seems
to me that so many of these cases about expanding freedom or
restricting it are cases that boil down to the eye of the
beholder.
I specifically thought about the Ninth Circuit case,
because my State is from the Ninth Circuit, outlawing ``under
God'' in the Pledge of Allegiance, saying that that is
unconstitutional. I checked, according to the one survey that I
had access to, 93 percent of the American people support the
right to say ``under God'' in the Pledge of Allegiance. I know
that the plaintiff in the case, Michael Newdow, thought that he
was advancing his freedom or his daughter's freedom in
successfully getting the Court to strike it down, but it seems
to me that the majority of the people are having their freedom
restricted in such a case.
And I certainly will not ask you because that case could
well come before the Court again. I would not ask you how you
would rule on it. But as a general proposition, this matter of
restricting freedom, is it not the case that in many situations
you have two competing types of freedom or liberty involved and
it is a question of interpreting the Constitution rather than
specifically setting out to advance one sort of freedom as
opposed to another?
Judge Alito. I think that's exactly right, Senator. Often
there are conflicting freedoms and that makes the case
difficult.
Senator Kyl. Let me ask you too, there was a concern
expressed by Senator Biden that the big factor in your
nomination in his view was the fact that you would be replacing
Justice Sandra O'Connor, and that that might mean that you
would change the direction of the Court. That is the concern
expressed anyway. As has been famously said, I know Justice
O'Connor. I have been a friend of hers for at least 30 years,
and I do not think she is any kind of a liberal member of the
Court. She might properly be called moderately conservative. I
am not sure how she would characterize herself. But I noted
that of the 109 Justices to sit on the Supreme Court, nearly
half, 46 to be exact, have replaced judges appointed by another
political party, so it is not at all uncommon, indeed, it is
almost half the situations in which a different party nominates
the Justice replacing a sitting Justice, and one might expect,
therefore, some difference.
But I checked the record because this had been brought up
by Senator Brownback yesterday. I found in the nomination of
Justice Ginsburg and the confirmation hearings there, she
replaced Justice White, who I think rightly has been called a
centrist on the Court, certainly not a liberal, and yet I saw
not one expression of concern by any Senator, Democrat or
Republican, that Justice Ginsburg might be ruling quite a bit
differently than Justice White in decisions in the Court.
So it seems to me that that is not a test that is rightly
applied. That is a results-oriented test, exactly the same kind
of thing that you have said that judges should not do when they
approach cases.
Let me get to a point that Senator Kennedy made. He said
that you have been overly deferential to Executive power, and
criticized what he called--and I think I have this quotation
exactly--``your almost total disregard of the impact of these
powers on the rights of individuals.'' I would like to know
what your response is to that charge and whether you can cite
some specific cases that would refute what he said.
Judge Alito. Certainly, Senator. I have tried to decide
every case on its own merits, and sometimes that means siding
with the Government, and sometimes it means siding with the
party who's claiming a violation of rights, and I do it on an
individual basis. Cases that show that I do that are cases like
United States v. Kithcart, which was a case in which an
African-American man had been stopped by police officers
because he was--because there had been a description of some
robbery suspects, and they had been described as--the
perpetrator was described as a black man in a black car, and
Mr. Kithcart was a black man in a black car. And they thought
that was sufficient to stop the car, and I wrote an opinion
saying that that was insufficient, and that was basically
racial profiling and was not permitted.
Another example is Bolden v. Southeastern Pennsylvania
Transportation Authority, which had to do with a drug test, and
I found that the test there constituted a search and a seizure
and would be a violation absent consent on the part of the
party who was searched. There have been a number of criminal
cases in which I've sided with the person claiming a violation
of rights. Carpenter v. Vaughn was a case in which I wrote an
opinion reversing a death--I joined an opinion reversing a
death penalty. The Bronshtein case was another case that came
up fairly recently in which I joined an opinion reversing a
death penalty. There have been quite a few cases of this
nature, Senator.
Senator Kyl. I noted a tax case too, or a case involving
tax evasion, Leveto v. Lapina. Do you remember that 2001 case?
Judge Alito. I do. That was the case in which there was a
search of a--I believe it was the office of a veterinarian, and
in a way that is a similar case to the Mellott case that I was
discussing earlier, although in Mellott I thought that the
search was carried out properly. In the Leveto case, on the
facts of that case, I thought the search was not carried out
properly, that the officers violated the Fourth Amendment in
the way they went about carrying out that search. They forced
the occupants of these premises to remain on the premises for a
very extended period of time while the search was being
conducted, and violated their Fourth Amendment rights, and
that's what I said in the opinion.
Senator Kyl. Do you have an idea of how many cases that
have gone to decision that you have participated in on your 15
years as a Circuit Court Judge?
Judge Alito. I think it's well over 4,000 on the merits.
Senator Kyl. I suspect that of those 4,000 cases there
might be one or two that I would disagree with your decisions
on, maybe even more than that. But the point here is there are
numerous cases in which you have found that the Government
acted improperly in criminal law context, in warrant context,
in discrimination context, in other cases in which you have
found either that the Government acted properly, or that at a
minimum, Government officials were entitled to some immunity
with respect to being privately sued; is that correct?
Judge Alito. That's correct, Senator.
Senator Kyl. Let me also address this question of
discrimination, especially racial discrimination. This is a
matter that was discussed in some prior questioning.
Specifically, in Senator Biden's questions, it dealt with the
Sheridan case in which you were the sole dissenter. In the
subsequent U.S. Supreme Court case, the Reeves decision, my
understanding from your answer is that the Supreme Court
addressed the same issue of law that you and your colleagues
had disagreed about, and that the U.S. Supreme Court voted
unanimously, and in an opinion written by Justice O'Connor,
that the test that you used in the Sheridan case was the
correct test to use; is that correct?
Judge Alito. Yes, Senator, that is correct.
Senator Kyl. Now, there are some other cases involving
employees claiming racial discrimination that I have looked at,
and one of the Senators seemed to suggest in a comment that he
made that you had never written opinions or decided cases for a
black plaintiff. Is that a fair statement?
Judge Alito. No, it's not accurate.
Senator Kyl. Do you recall cases in which you upheld the
discrimination claims of racial minorities?
Judge Alito. There was the case of Goosby v. Johnson &
Johnson, and that case could be considered together with the
Bray case that I was discussing before the break. Those were
both cases in which my colleague, Judge McKee wrote the
opinion, and in the Goosby case I agreed with him. It was a
similar case, but it was a case where I thought the facts fell
on the other side of the line.
There was a case called Smith v. Davis, which was another
case where I joined an opinion upholding the claim of an
African-American who was claiming racial discrimination. The
Robinson case involved claims of race and gender
discrimination, as I recall. There are a number of cases in the
criminal law context. I just mentioned the Kithcart case. There
was the Brinson case. There was Williams v. Price. There have
been many cases involving other forms of discrimination, age
discrimination, the Showalter case; disability case, the
Mondzelewski case; the case of Shapiro v. Lakewood Township.
There was Zubi v. AT&T, which was a case involving the statute
of limitations for a claim of racial discrimination.
Senator Kyl. And you were the lone dissenter in that case,
is that correct?
Judge Alito. I was the dissenter in that case.
Senator Kyl. And your position was what?
Judge Alito. My position was that--the majority's position
was that the claim had to be thrown out because the statute of
limitations had been violated, and my position was that the
claim should be allowed to go forward because the statute of
limitations was longer than the majority had recognized. And
that case--that issue later went to the Supreme Court in a case
called Jones v. Donnelley and the Supreme Court agreed with my
position, that the longer statute of limitations applied.
Senator Kyl. I note there is another case involving an
African-American woman who claimed that her coworkers had made
racial and sexual slurs against her, denied her training
opportunities and so on, and you ruled that she was entitled to
$124,000 in damages and attorneys' fees, a case called Reynolds
v. USX Corporation. Do you remember that case?
Judge Alito. That's right, Senator.
Senator Kyl. So the bottom line is there are numerous cases
in which you have ruled in favor of minorities, in particular,
African-Americans in discrimination situations, and also where
you have dissented in a situation which your position was to
support the claim of discrimination, and that it would be
inaccurate to say that you have not taken that position in the
4,000 plus cases that you have decided; is that correct?
Judge Alito. That's certainly correct, Senator.
Senator Kyl. There has been a lot of talk about precedent
and stare decisis. It is certainly something that we lawyers
are familiar with. We regard it as a key principle in deciding
cases. There was a case that was mentioned by a couple of my
Democratic colleagues that I am sure will be discussed further,
but I thought I would give you an opportunity to talk about it
because it certainly seemed to me to be a case in which you
were very--that you were trying to apply a Supreme Court
precedent, the precedent being the Lopez v. United States case,
a case, by the way, which I note that is one of those decisions
that Justice O'Connor was in the majority, a 5-4 decision,
which her position could be characterized as the swing vote.
Now you, in United States v. Rybar, agreed with Justice
O'Connor and the way that the law should be applied relative to
intrastate possession of a weapon. The Lopez case dealt with a
congressional Act that said that weapons should not be
possessed near schools. The Court struck that down, saying that
that went beyond the Commerce Clause capability of commerce to
legislate in matters of interstate commerce. In Rybar, what was
the issue? You dissented.
By the way, one of the reasons why this case is interesting
to me is because the Ninth Circuit Court of Appeals, again,
which is my circuit, has subsequently ruled--and this is not a
conservative court in most people's estimation--recently agreed
with your dissent in a case called U.S. v. Stewart, a 2003
case, in which the Court overturned the defendant's conviction
under the very same statute, holding that the law exceeded
Congress's commerce powers.
It seems to me that it would be hard to argue that your
position is per se unreasonable, but could you describe it in
your own words?
Judge Alito. My position in Rybar was really a very modest
position, and it did not go to the question of whether Congress
can regulate the possession of machine guns. In fact, I
explained in the opinion that it would be easy for Congress to
do that in a couple of ways that differed from the way in which
it was done in Rybar.
The statute in Rybar was very similar to the statute that
was at issue in Lopez. In fact, I think they are the only two
Federal firearm statutes that have been cast in that mold. They
simply prohibited the possession of firearms without either
congressional findings concerning the effect of the activity on
interstate commerce, or a jurisdictional element. And I knew
from my experience as a Federal prosecutor that most of the
Federal firearms statutes have a jurisdictional element right
in the statute. What that means is that when the prosecutor
presents the case in court, the statute that is used most
frequently is the statute that makes it a crime for someone
who's been convicted of a felony to possess a firearm.
And in that case, when the prosecutor presents the case in
court, the prosecutor has to show that the defendant has been
convicted of a felony, and that the firearm in question had
some connection with interstate commerce.
Under Supreme Court precedent, a case called Scarborough,
all that's necessary is to show that the firearm, at some point
in its history, passed an interstate or foreign commerce, was
manufactured in one State and then later turned up in another
State, or manufactured in a foreign country and brought to the
United States.
From my experience, this was never a practical problem, and
this was how all the Federal firearms statutes had been framed.
But for whatever reasons, the statute in Lopez and the statute
in Rybar were lacking that jurisdictional element. So an easy
way in would Congress could regulate the possession of a
machine gun would be to insert a jurisdictional element. And as
I pointed out, as I just pointed out, in my experience as the
U.S. Attorney in New Jersey, that was never a practical
problem.
The Supreme Court in Lopez said that there were three
reasons why there was a problem with the statute there, and
that case had been decided just the year before. And it was my
obligation as a lower-court judge to follow it. The first was
that it involved what the Court characterized as the
noncommercial activity, and that was the possession of a
firearm. And, of course, that was exactly the same activity
that was at issue in Rybar. The second was the absence of a
jurisdictional element, and there was no jurisdictional element
in either statute. And the third was the absence of a
congressional finding connecting the activity that was being
regulated with interstate commerce. And I pointed out in my
opinion that I would have viewed the Rybar case very
differently if there had been a congressional finding, or if
the Justice Department, in presenting its argument to us, had
been able to point to anything that showed that there was a
substantial effect on interstate commerce, which is what the
Supreme Court says is required.
Senator Kyl. So this is one of those situations in which,
if the result was not what was intended, you were willing to
point out in your decision what Congress could relatively
easily have done to get the result that it appeared that
Congress wanted to achieve?
Judge Alito. That's exactly correct.
Senator Kyl. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Kyl.
Senator Kohl?
Senator Kohl. Thank you very much, Mr. Chairman.
Judge Alito, we heard a lot of discussion yesterday about
the proper role of the judge in our system. Some said that a
judge should favor neither the ``big guy or the little guy, but
simply apply the law and not make the law.'' Based on what you
said yesterday, I believe that you would agree generally with
this characterization.
However, to me it is not quite so simple. Just as no two
umpires call the same game exactly, no two judges see a case in
exactly the same way. Laws and the Constitution are often
ambiguous and capable of many interpretations. Those
interpretations are the result of judges with different
judicial philosophies. Some judges have a more liberal judicial
philosophy, while others are more conservative, and we are here
trying to figure out what your judicial philosophy is. That is
probably the principal point of this hearing.
If the law were so simple, we would not have as many 5-4
decisions. It seems to me that many of the most fundamental
protections of civil rights and civil liberties that we take
for granted today, things such as school integration, the
principle of one person/one vote, the principle that the
accused have a right to a lawyer in criminal cases, and the
right of contraception, just to name a few, have come when
judges have been willing to look beyond rigid legal doctrines
that prevailed at the times of those rulings. The neutral
approach, that of the judge just applying the law, is very
often inadequate to ensure social progress, right historic
wrongs, and protect civil liberties so essential to our
democracy.
So isn't it true, Judge Alito, that a neutral judge would
never have reached these conclusions? In fact, for decades,
courts did not reach these conclusions. So would you agree that
these cases were rightly decided, No. 1, and required, No. 2,
that judges apply a more expansive, imaginative view of the
Constitution?
Judge Alito. I think that the Constitution contains both
some very specific provisions, and there the job of
understanding what the provision means and applying it to new
factual situations that come up is relatively easy. The
Constitution sets age limits, for example, for people who want
to hold various Federal offices, and there can't be much debate
about what that means or how it applies. But it also contains
some broad principles--no unreasonable searches and seizures,
the guarantee that nobody will be deprived of life, liberty, or
property without due process of law, equal protection of the
laws. And in those instances, it is the job of the judiciary to
try to understand the principle and apply it to the new
situations that come before the judiciary.
I think the judiciary has to do that in a neutral fashion.
I think judges have to be wary about substituting their own
preferences, their own policy judgments for those that are in
the Constitution. They have to identify the principle that is
to be applied under these broader provisions of the
Constitution and apply it, but I don't see that as being the
same thing as the judge's injecting his or her policy views or
preferences or ideas about the direction in which the society
should be moving into the decisionmaking process.
Senator Kohl. These decisions to which I just referred push
society into new directions, and they came about, didn't they,
as a result of the Supreme Court's willingness to look at the
Constitution in perhaps a different way, in a new way, and take
a new approach and a new avenue, which is not entirely
consistent with a neutral judge simply applying the law. The
law is the law. It is not hard to find that out. As you
somewhat suggested, if you are an umpire, a ball is a ball, a
strike is a strike. I am suggesting that it is--and I think I
would like to hope you would agree. It is somewhat, if not a
lot more complex and sophisticated. If it weren't true, we
could have a lot of views here today.
I think you are unique in many ways, and part of that is
your complexity, your sophistication, your ability to look at
the Constitution and, if necessary, see new meanings that
weren't seen there before. Isn't that true?
Judge Alito. Well, Senator, I would never say that it is an
easy process. There are some easy cases, but there are a lot of
very difficult cases. And once you have identified the
principle, the job of applying it to particular cases is often
not easy at all. But what the judge has to do is make sure that
the judge is being true to the principle that is expressed in
the Constitution and not to the judge's principle, not to some
idea that the judge has. And sometimes this results in ground-
breaking decisions. Sometimes that is because new issues come
up. Sometimes it is because the principle that is embodied in a
constitutional provision has long been neglected.
That was certainly true with respect to the Equal
Protection Clause. There was a long period between Plessy v.
Ferguson and Brown v. Board of Education when the true meaning
of the Equal Protection Clause was not recognized in the
decisions of the Supreme Court, and when Brown was finally
decided, that was not an instance of the Court changing the
meaning of the Equal Protection Clause. It was an instance of
the Court righting an incorrect interpretation that had
prevailed for a long period of time.
Senator Kohl. Judge Alito, one of the ways you get at a
person's judicial philosophy is to look at the people whom they
admire. In an interview that you gave in 1988, you were asked
about your thoughts about Judge Robert Bork's nomination, and
you said, and I quote, ``Judge Bork was one of the most
outstanding nominees of this century.''
Many Americans do not share Judge Bork's narrow views about
the Constitution, views that would undermine many of the rights
that we now take for granted, Judge Alito. Judge Bork thought
that Americans had no constitutional right to use
contraception, saying, and I quote, ``The right to procreate is
not guaranteed explicitly or implicitly by the Constitution.''
Judge Bork thought minorities had no constitutional right
to have their votes counted equally, saying that in
guaranteeing one man/one vote, the Court ``stepped beyond its
boundaries as an original matter.''
In 1981, Judge Bork called Roe v. Wade ``an
unconstitutional decision, serious and wholly unjustifiable
usurpation of State legislative authority.''
In addition, he had an unreasonably broad view of Executive
power, claiming that a law requiring the President to obtain an
order from a court before conducting surveillance in the United
States and against U.S. citizens for foreign intelligence
purposes was ``a thoroughly bad idea, and almost certainly
unconstitutional.''
Can we assume from your admiration of Judge Bork that you
agree with some of these statements or at least that you
support some of these beliefs if you were sitting on the
Supreme Court? Frankly, it is curious to me that someone like
yourself would consider someone with his views to be ``one of
the most outstanding nominees of this century.''
Judge Alito. Senator, when I made that statement in 1988, I
was an appointee in the Reagan administration, and Judge Bork
had been a nominee of the administration, and I had been a
supporter of the nomination. And I don't think the statement
goes beyond that.
There are issues with respect to which I probably agree
with Judge Bork, and there are a number of issues on which I
disagree with him. And most of the things that you just
mentioned are points on which I would disagree with him. I
expressed my view about Griswold earlier this morning. On the
issue of reapportionment, as I sit here today in 2006--and I
think that is what is most relevant--I think that the principle
of one person/one vote is a fundamental part of our
constitutional law. And I think it would be--I don't see any
reason why it should be re-examined, and I don't know that
anybody is asking for that to be done. Every legislative
district in the country and every congressional district in the
country has been reapportioned, has been redistricted numerous
times in reliance on the principle of one person/one vote. And
the old ways of organizing State legislatures have long been
forgotten. So I think that is very well settled now in the
constitutional law of our country.
Under the Fourth Amendment, I have no question about the
decision in United States v. United States District Court,
which held--and I think that is what you were referring to,
which held that a warrant is required for domestic security
surveillance, and that was the decision that led to the
enactment of the Foreign Intelligence Surveillance Act.
Senator Kohl. Of course. I was only referring to or trying
to refer to your quote with respect to him and the positions he
held, which I suggested were at variance with the positions I
thought you held, which you are affirming here in your answer.
So that the quote you are pointing out was something you made
as an employee of the Reagan administration?
Judge Alito. I was, and that was in--I saw that quoted in
the paper yesterday. I think that was in 19--
Senator Kohl. Not necessarily expressing your own real
views?
Judge Alito. I was a supporter of the nominee of the
administration, and he was the nominee of the administration.
He was and is an accomplished scholar. He had contributed a
great deal to constitutional debate with his writings. But I
don't agree with him on a number of issues, and I mentioned--
you hit some of the issues on which I would definitely disagree
with him.
Senator Kohl. Very good.
Judge Alito, in a document appended to your job
applications, you also wrote that, ``I disagree strenuously
with the usurpation by the judiciary of decisionmaking
authority that should be exercised by branches of Government
responsible to the electorate.'' The statement is especially
troubling given that elsewhere in this application you wrote,
``I developed a deep interest in constitutional law motivated
in large part by disagreement with Warren Court decisions,
particularly in the areas of criminal procedure, Establishment
Clause, and reapportionment.''
Judge Alito, what Warren Court cases were you specifically
talking about--Miranda, one person/one vote, any of the privacy
decisions? What in particular were you talking about?
Judge Alito. Well, Senator, I am happy to address that. The
statement was made in that 1985 form, and, of course, that was
written 20 years ago. And in the form, what I was doing was
sort of outlining the development of my thinking about
constitutional law, and I went so far as to go back to my
college days, which were before, of course, I had even attended
law school, much less practiced law or served as a judge.
I mentioned some of the leading areas that were covered by
decisions of the Warren Court, and the decisions of the Warren
Court really stimulated my interest in constitutional law. And
I mentioned a book that had been published the time, Alexander
Bickel's book ``The Supreme Court and the Idea of Progress,``
which was probably the first book about what you might call
constitutional theory that I had read. And he was someone who I
think most people would describe as a liberal, but he was a
critic of the Warren Court for a number of reasons. And he was
a great proponent of judicial self-restraint, and that was the
main point that I took from my pre-law school study of the
Warren Court.
I spoke a bit about the reapportionment decisions. I don't
believe that I--in fact, I am quite sure I never was opposed to
the one person/one vote concept. I do recall quite clearly that
my father's work at the time working for the New Jersey
Legislature and working on reapportionment had brought to my
attention the question of just how far that principle of one
person/one vote had to be taken in drawing legislative
districts.
The New Jersey Legislature and many other legislatures at
the time were trying to redraw their districts in accordance
with Reynolds v. Sims, which set out the one person/one vote
principle. But it wasn't clear how exactly equal the districts
had to be in population. And in some of the late Warren Court
decisions, the Court seemed to suggest--did say so for
congressional districts that they had to be almost exactly
equal in population. And this idea, if applied to the
legislatures and to the New Jersey legislative plan, would have
wiped the plan out because there were population deviations
which, although not very large, were much larger than the Court
had said they were going to tolerate in the case of
congressional districts. And I do remember that quite
specifically.
Professor Bickel made the argument that the Court had taken
the one person/one vote principle too far, and I know my father
had said that although he thought it was a good idea, the idea
of trying to get the districts to be exactly equal in
population at the expense of looking at other factors, such as
the shape of the district and respecting county lines or
municipal lines, was a bad idea.
Senator Kohl. Judge Alito, you stated in that same job
application that one element of the conservative philosophy
that you believe ``very strongly'' was the ``legitimacy of a
government role in protecting traditional values.'' What
traditional values were you referring to? And who decides what
is a ``traditional value'' ?
Judge Alito. Well, again, I'm trying to remember what I
thought about that 20 years ago, and I'm trying to reconstruct
it.
I think a traditional value that I probably had in mind was
the ability to live in peace and safety in your neighborhood,
and that was a big issue during the time of the Warren Court,
and it was still a big issue in 1985 when I wrote that
statement because that was a time of very high crime rates. I
think that is a traditional value.
I think the ability of people to raise a family and raise
their children in accordance with their own beliefs is a
traditional value. I think the ability to raise a family, raise
children in a way that they are not only subjected to--they are
spared physical threats but also psychological threats that can
come from elements in the atmosphere is a traditional value. I
think that the ability to practice your own conscience is a
traditional value.
That is the best I can reconstruct it now, thinking back to
1985.
Senator Kohl. Very good. Judge Alito, in Casey you argued
that the requirement that a woman notify her husband did not
impose an undue burden upon a woman. You reasoned in part that
the number of married women who would seek an abortion without
notifying their husbands would be rather small. In other words,
only some women would be affected. The majority in that case
disagreed with you and stated, ''Whether the adversely affected
group is but a small fraction of the universe, a pregnant woman
desiring an abortion seems to us irrelevant to the issue.''
This disagreement begs the question. Is a constitutional
right any less of a right if only one person suffers a
violation? Or should greater value be placed on that right if a
larger number of people had that right violated?
Judge Alito. Trying to apply the undue burden test at that
time to the provisions of the Pennsylvania statute that were
before the court in Casey was extremely difficult, and I can
really remember wrestling with the problem and I took it very
seriously and I mentioned that in my opinion and it presented
some really difficult issues. Part of the problem was that the
law just was not very clear at that time.
The undue burden standard had been articulated by Justice
O'Connor in several of her own opinions and there were just a
few hints in those opinions about what she meant by it. But
what she said was that an undue burden consisted of an absolute
obstacle or an extreme burden. Those may not be exact quotes,
but they're pretty close. And she did say that it was
insufficient to show simply that a regulation of abortion would
inhibit some women from going forward and having an abortion.
Those were the--that was the information that was available in
her opinions to try to understand what this test meant.
And so then the question became, how do you apply that to
the numerous provisions of the Pennsylvania statute that were
before us, and it was a difficult task. The plaintiffs argued
that all the provisions constituted an undue burden, and when
the case went to the Supreme Court, Justice Stevens agreed with
that. He said they all were an undue burden. Things like a 24-
hour waiting period, that was an undue burden because it would
inhibit some women from having an abortion. An informed consent
provision, Justice Stevens thought and plaintiffs argued that
would be an undue burden.
The majority on my panel and the joint opinion on the
Supreme Court found that most of the provisions of the statute
did not amount to an undue burden, the 24-hour waiting period,
the informed consent provision, and all of them. We disagreed
on only one, and that was the provision regarding spousal
notification with a safety valve provision there that no sort
of notification was needed if the woman thought that providing
the notification would present a threat of physical injury to
her. And I wrestled with that issue, but based on the
information that I had from Justice O'Connor's opinions, it
seemed to me that this was not what she had in mind. Now, that
turned out not to be a correct prediction about how she herself
would apply the undue burden standard to that statutory
provision, but that was the best I could do under the
circumstances.
Senator Kohl. Judge Alito, in your 1985 job application
memo again, you identified reapportionment as one of the three
issued decided by the Warren Court with which you disagreed.
You even stated that your disagreement was so strong that it
was one of the reasons that you became a lawyer. The Supreme
Court's Warren Court decisions on this topic, of course, stood
for the fundamental principle of one person/one vote, meaning
as a matter of constitutional law that each person's vote must
count equally and each electoral district must have the same
population.
These decisions were more than 20 years old by the time of
your 1985 job application and these decisions stand for a
fundamental principle of democracy. By 1985, virtually no
serious scholar or constitutional lawyer could be found to
disagree with the principle that each person's vote should
count equally. So what was your disagreement with the Warren
Court's decisions on this issue, Judge Alito, in 1985? Isn't
one person/one vote a basic principle of democracy? Wasn't it
in 1985?
Judge Alito. Senator, I don't believe that I disagreed with
the principle of one person/one vote in 1985. I was talking
about how I got interested in constitutional law back in
college and I was certainly stimulated at that time by my
consideration of the issue of one person/one vote. But the
issue that troubled me toward the end of the Warren Court, and
this was during the time when I was in college, was the
question of how far this principle went when it came to drawing
legislative districts. Did they have to be almost exactly equal
in population in accordance with the last census, or were
larger population variations permitted?
In a case called Kirkpatrick v. Preisler and another one
called Wells v. Rockefeller that were decided around 1969,
which was right at the end of Chief Justice Warren's tenure on
the Supreme Court, the Court held that in the case of
congressional districts, they had to be almost exactly equal in
population, and as I said, my father was deeply involved in
this. When the issue came up again in the context of
congressional districting in Carcher v. Daggett, which was
around 1985, that was the case where he had been an expert
witness and the Court struck down the New Jersey congressional
districting plan even though the population variations were
under 1 percent. Now, the Court also later said that when
you're talking about legislative districts, considerably larger
deviations are allowed and you can take into account municipal
lines and county lines and things of that nature.
But as of the time when I was in college, as in the time of
the two cases that I mentioned, it seemed likely--a lot of
people thought, and certainly I as a college student thought
that the rule was going to be the same for congressional
districts as it was for legislative districts and that seemed
to say that the districts would have to be almost exactly equal
in population based on the last census.
Now, a problem with that is that while the census is very
accurate, it's not perfect and it doesn't stay accurate
throughout the 10-year period from census to census. People
move around. The population grows. The population diminishes in
certain areas. So it didn't seem to make a whole lot of sense,
let's say in the middle of a decade, to insist on absolute
population equality based on the last previous census when
everybody knew that the census figures had changed, and in
doing that, in insisting on practically equal population
districts, districts of almost exactly equal population, you
disregard municipal lines, you disregard county lines. People
don't know which district they're going to be voting in. You
introduce the possibility of other factors figuring into the
districting plan.
Senator Kohl. OK. Family and Medical Leave Act, Judge
Alito. In my view, one of the most important pieces of social
legislation enacted in the last two decades was the Family and
Medical Leave Act in 1993. Among other things, it gives
employees the right to take up to 12 weeks of unpaid leave to
care for a newborn child or an ill parent or a spouse. The
statute also gives an employee the right to sue his or her
employer for damages if the employer violates the employee's
rights under this law.
I was disturbed to learn that in the Chittister case, Judge
Alito, your ruling denied a State employee the ability to sue
his employer for money damages. Your reasoning was directly
repudiated by the 2003 Supreme Court decision of Nevada
Department of Human Resources v. Hibbs. In that case, the
Supreme Court, in a decision written by Chief Justice
Rehnquist, held that the Family and Medical Leave Act was
congruent and proportional to Congress's interest in preventing
discrimination based on gender, and therefore States could be
sued for money damages under the law.
So we are concerned that your view shows a lack of
understanding of the problems of ordinary working Americans and
the right of women to be free of discrimination in the
workplace. Isn't it true that under your view, potentially
millions of working Americans would not get the protections
that they rely on under the Family and Medical Leave Act? Judge
Alito?
Judge Alito. Well, Senator, I'm happy to address that
because I think there's been some confusion about what the
issue was in Chittister and how it relates to the Supreme
Court's decision in Nevada v. Hibbs, and they're actually two
entirely different provisions of the Family and Medical Leave
Act.
The provision that was at issue in my case was not the one
in Hibbs and at last count, seven circuits had decided that
issue, the issue that was before my court in Chittister,
exactly the same way we did. I counted up the number of Court
of Appeals judges who endorsed that position and it's over 20.
I think it's 22. And they include some of the most
distinguished Court of Appeals judges in the country and judges
who have been appointed by Presidents of both parties.
The issue in Hibbs had to do with a provision of the Family
and Medical Leave Act that requires employers to provide
employees with a certain amount of leave for the purpose of
taking care of another family member. The provision--and that
was the one that the Supreme Court addressed in the Hibbs case.
The provision in the Chittister case is a provision that
requires employers to give employees a certain amount of leave
for personal illness. The standard that has to be applied here
is the one the Supreme Court has set out, and it's a
controversial standard, but as a lower court judge, it's the
one I had to apply, and that was whether what was done was
congruent and proportional to constitutional violations.
What the Court said in Hibbs was that there was a record of
constitutional violations, and remember, here we're talking
about the provision that has to do with leave to take care of
another person, and what they said was that there were many
instances in which employers, State employers, had plans that
provided more leave for that purpose for women than for men and
the reason was because of the stereotype that if somebody in
the family got sick, it would be the woman, not a man, who
would have to take off from work to take care of that person.
But the provision that was at issue in Chittister had to do
with leave for one's own personal illness and there was no
record that employers give--and a man was subjected to this,
and there was no record that State employers, or for that
matter any other employers, had plans that provided more sick
leave for men than for women or that any stereotypes were
involved in the situation. And so that was why I concluded, and
the unanimous panel that I sat on concluded, and all of these
seven other circuits concluded that that provision did not
satisfy the standard that the Supreme Court had established.
Senator Kohl. A last question. Judge Alito, I understand
that you're reluctant to comment on cases that you would likely
have coming before you in the future, but I'd like to ask you a
question about a case that the Supreme Court certainly will
never see again, the 2000 Presidential election contest between
President Bush and Vice President Gore. Many commentators see
the Bush v. Gore decision as an example of judicial activism,
an example of the judiciary improperly injecting itself into a
political dispute. Indeed, it appears to many of us who have
looked at your record that Bush v. Gore seems contrary to so
many of the principles that you stand for, that the President
has said you stand for when making your nomination in talking
about judicial restraint, not legislating from the bench and,
of course, respecting the rights of the States.
So, Judge Alito, I'd like to ask you, was the Supreme Court
correct to take this case in the first place?
Judge Alito. Well, Senator, I think you're probably right
and I hope you're right that that sort of issue doesn't come
before the Supreme Court again. Some of the--the Equal
Protection ground that the majority relied on in Bush v. Gore
does involve principles that could come up in future elections
and in future cases.
But as to that particular case, my answer has to be, I
really don't know. I have not had the opportunity--I have not
studied it in the way I would study a case that comes before me
as a judge and I would have to go through the whole judicial
process--
Senator Kohl. That was a huge, huge case and I would like
to hope, and I would bet, that you thought about it an awful
lot because you are who you are. And I would like for you to
give an opinion from the convictions of your heart, as a person
who's very restrained with respect to judicial activism, this
being a case of extreme judicial activism. Were they correct in
taking this case, in your opinion?
Judge Alito. Well, there's the issue of whether they should
have taken it and the issue of how it should be decided, and
Senator, my honest answer is I have not studied it in the way I
would study the issue if it were to come before me as a judge
and that would require putting out of my mind any personal
thoughts that I had on the matter and thinking about the--
listening to all the arguments and reading the briefs and
thinking about it in the way that I do when I decide legal
issues that are before me as a judge. That's the only--that's
the best answer I can give you to that question. It was
obviously a very important and difficult and controversial
case, and in a situation like that, the obligation of a judge
all the more is to be restrained and not to--is to go through
the judicial decisionmaking process, and only at the end of
that reach a conclusion about the issue.
Senator Kohl. Thank you, Judge. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kohl.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Judge, you have almost turned the corner here, so that's
the good news. The bad news is, this is just the first round.
[Laughter.]
Senator DeWine. Let me respond, if I could, Judge, to three
things that I've heard so far during these hearings that have,
frankly, disturbed me. First, I am bothered by what I consider
to be distortions of your record, really in an effort to make
you look like something that you are not.
I just read a very interesting article by Stuart Taylor
from the National Journal about this issue, and I would like,
Mr. Chairman, to make this a part of the record, this article,
if I could.
Chairman Specter. Without objection.
Senator DeWine. Mr. Taylor describes the opinions of a,
quote, ''right-wing jurist.'' This judge has consistently ruled
against minorities, striking down affirmative action programs,
making it harder for victims of race and gender discrimination
to vindicate their rights.
Chairman Specter. Senator DeWine, your unanimous consent
request is granted.
Senator DeWine. Thank you, sir. This judge has struck down
a Federal law to protect kids from guns, ruled that State and
local governments cannot be sued under the Fair Labor Standards
Act, leaving 4.7 million workers without a remedy in court.
This judge has immunized the President from suit, even when he
illegally wiretaps political opponents. This judge approved a
police officer's fatal shooting in the back of an unarmed 15-
year-old African-American boy. Finally, this judge has called
abortion, and I quote, ``morally repugnant'' and declared Roe
v. Wade to be on, quote, ``on a collision course with itself.''
Based on such a record, no right-thinking Democrat could
ever support such a judge. But as Taylor tells us, this judge
is none other than Sandra Day O'Connor, the same Sandra Day
O'Connor who has been praised for the past few days as a model
of moderation.
Judge, the point Mr. Taylor made is clear. You can distort
and misrepresent anyone's record, and that, I believe,
unfortunately, is what some of your opponents are doing to you.
It is unfair, it is inaccurate, and it is just flat-out wrong.
Second, I would like to respond to the allegation that you
have not written an opinion in favor of plaintiff alleging race
discrimination on the job. You did a very good job a moment ago
when Senator Kyl was talking to you in describing some of these
cases. I think the facts of these cases are what is
particularly interesting. In Reynolds v. USX Corporation, you
ruled that an African-American woman whose coworkers and
supervisors regularly made racial and sexual slurs against her
and denied her training opportunities was, in fact, entitled to
$124,000 in damages and in attorney fees.
In Zubi v. AT&T Corporation, you dissented. You dissented,
arguing against a stringent limitations period which prevented
a civil rights plaintiff from filing a claim, and your position
was vindicated. You were vindicated by the United States
Supreme Court unanimously a few years later.
In Smith v. Davis, you disagreed with the district court,
which had dismissed an African-American employee's claim of
discrimination. Instead, you found that there was evidence to
support a finding that the employer's stated reasons for firing
the plaintiff were not genuine.
In Goosby v. Johnson & Johnson, you ruled that the
plaintiff, an African-American woman, was entitled to a trial
under claims of employment discrimination because you found
that there was evidence that the employer was treating white
male employees differently than it was treating the plaintiff.
There are more cases, as you have testified to, but I think we
make the point.
We would all be better off and this process, Mr. Chairman,
would be better off and would be more instructive if we could
evaluate your nomination, Judge, based on your full and
complete record.
Finally, let me add my two cents on this Vanguard issue. I
am going to take it from a little different perspective than
has been done so far. To me, this is really a non-issue. In the
so-called Vanguard lawsuit, two people were in a financial
dispute. The plaintiff sued to force the defendant to turn over
$170,000 held by him in some Vanguard accounts. The defendant
went to court to prevent Vanguard from turning over the money.
Now, while Vanguard was technically part of the suit and
was technically a defendant, it wasn't really a defendant in
any sense of the term that would be used by the public or
understood by the public. It was not accused of any wrongdoing,
it didn't stand to lose anything.
Really, the only question was whether Vanguard would
transfer some of the funds it held for one person over to
another. It was simply being asked, who do I pay the money to,
who do I give the money to. That is all Vanguard was being
asked to do, so nothing in the classic sense of being a
defendant. Nothing about this case could realistically have
affected Vanguard as a company, let alone affected your mutual
fund. It is a joke, it is ridiculous, it is absurd, and
everybody on this panel knows that.
Now, for the sake of the process, I hope we can put these
issues behind us. This hearing is really our opportunity to
fully and fairly evaluate your qualifications for the High
Court and to get some idea about how you think as a judge, how
you process things, what kind of a judge you will be on the
United States Supreme Court.
Now, let me turn to the substance. Judge Alito, I want to
turn to an issue that is very important to me. In a number of
recent cases, the Supreme Court of this country has restricted
congressional power in a way that I think is not required by
the Constitution.
In my opening statement, I mentioned the Supreme Court's
decision in Board of Trustees v. Garrett, a five-to-four
decision. To me, that case is the best example of this recent
trend, and it is not a good trend, in my opinion.
Garrett involved a woman who claimed that she had been
discriminated against because she was disabled. She was
employed by the State of Alabama and she sued the State under
the Americans with Disabilities Act. The Supreme Court threw
out the suit, however, holding that Congress lacked the power
to make the State subject to suit.
Now, Judge, as I see it, the problem with Garrett is that
the Court ignored findings made by Congress. While we were
considering the ADA, we held 13 hearings and even set up a task
force that held hearings in every State in the Union, attended
by more than 30,000 individuals. Based on these hearings, we
found hundreds of examples, hundreds of examples of people with
disabilities being discriminated against by the States in
employment decisions.
Further, we found that, and I quote, ``Two-thirds of all
disabled Americans between the ages of 16 and 64 were not
working at all, even though a large majority of them were
capable of doing so.'' And, finally, we found that this
discrimination flowed from, and I quote, ``stereotypic
assumptions about people with disabilities,'' as well as, and I
quote, ``purposeful unequal treatment,'' end of quote. Sadly,
however, in Garrett the Court said that this was just not
enough. In fact, it held that we had not pointed to any
evidence that the States discriminated in employment decisions
against people with disabilities.
Judge Alito, from a review of your decisions, it appears to
me that you tended to defer in close cases to the decisions of
those individuals closest to the problem at hand. I applaud you
for taking that approach.
Now, let me ask you, in your opinion, what role should a
judge play when reviewing congressional fact-finding, and how
can you assure us that you will show appropriate deference to
the role of Congress as the representatives of the people in
this democracy when we pass important legislation?
Judge Alito. I think that the judiciary should have great
respect for findings of fact that are made by Congress. And in
the Rybar decision that I was discussing earlier, although it
is controversial and it involved an application of the Lopez
decision, I stated that that decision would have been very
different from--that case would have been very different for me
if Congress had made findings, and that is because of two
things.
I am fully aware of the fact that the members of the
judiciary are not the only officers in the United States who
take an oath to support and defend the Constitution of the
United States. Members of Congress take an oath to support the
Constitution and officers of the Executive branch take an oath
to support the Constitution, and I presume that they go about
their work in good faith.
The second point--and this goes directly to the issue of
findings--is that the judiciary is not equipped at all to make
findings about what is going on in the real world, not this
sort of legislative findings. And Congress, of course, is in
the best position to do that. You have constituents. Members of
Congress hear from their constituents. Congress can have
hearings and examine complex social issues, receive statistical
data, hear testimony from experts, analyze that and synthesize
that and reduce that to findings. And when Congress makes
findings on questions that have a bearing on the
constitutionality of legislation, I think they are entitled to
great respect.
Senator DeWine. Well, Judge, I appreciate your response. We
can't ask you, obviously, to decide any particular case, but
what we are trying to do today is get a general idea of how you
approach cases. And we have, as I said, looked at your previous
cases. We have a good idea from that, but I appreciate this
exchange.
Let me followup with this. Garrett is the law of the land
today. Nonetheless, let me ask you whether, after Garrett,
Congress might still have a way to protect the disabled. Rather
than focus on the problem caused by Garrett, let me focus on
the solution. To me, even after Garrett, Congress still has the
power to protect the disabled under the Spending Clause of the
Constitution. I would like to explore maybe that with you, if I
could. Let me give you an example of how this might work.
You, of course, are very familiar with South Dakota v.
Dole. In that case, Congress had wanted to establish a national
drinking age of 21. As you know, we, of course, don't have the
power to require that under our Constitution. Therefore,
Congress used its power under the Spending Clause. We said to
the States, if you don't establish a 21-year-old drinking age,
you will lose 5 percent of your Federal highway dollars.
This left the States with a choice: adopt a 21-year-old
drinking age or lose 5 percent of their Federal money. When
presented with such a choice, the States kept the money and
changed their drinking age to 21. It seems to me that Congress
might be able to use this same approach to require the States
to waive their immunity from suit under statutes like the ADA.
Judge, based on your experience, could you give me your
understanding of what Congress can do and what it can't do
under its Spending Clause power, maybe just go back and look at
some recent cases and give me a little--
Judge Alito. Yes, certainly, Senator. Well, I think you
have pointed to the leading case in this area, and that is
South Dakota v. Dole. South Dakota v. Dole recognizes that
Congress has broad powers under the Spending Clause, and that
when Congress provides money to the States, Congress can attach
conditions to that money, to the receipt of the money, provided
that certain standards are met.
One thing that has to be done under the Supreme Court's
cases is that there has to be a clear statement that the
conditions are attached to the receipt of the money. And the
Supreme Court views this like a contract, so that the parties
need to have--the party receiving the notice has to have clear
and fair notice about what it is agreeing to by taking the
money. And then beyond that, the condition--if that is
satisfied, then the condition has to be germane to the purposes
of the funds.
And in South Dakota v. Dole, the Court found that the
drinking age and the 55-mile-an-hour speed limit were germane
to the purpose of the expenditures, and these, I believe, were
Federal highway funds. So those are the standards that would be
applied to any future legislation under the current precedents
if the future legislation invokes Congress's broad power under
the Spending Clause.
Senator DeWine. That is helpful. Thank you, Judge.
During the confirmation hearing of Chief Justice Roberts,
Chairman Specter showed us a chart stating that the Supreme
Court had the opportunity to overrule Roe v. Wade in 38 cases.
Because of this, the Chairman suggested that Roe was not only
super precedent, but super duper precedent. The Chairman has
made the same argument at the hearing today. In fact, he
brought the chart out again today.
Now, Judge, just to show you that not all members of this
panel are like-minded, I want to tell you that I disagree. To
me, Roe is not super precedent. I believe Roe is a precedent,
but I don't believe it is super duper precedent or super
precedent.
First, although the Court has applied Roe in 38 cases, it
has not directly taken up the issue of whether to overrule Roe
in every one of those cases. In fact, out of those 38 cases, I
have only found 4 in which the Court directly addressed the
status of Roe as binding precedent.
In Webster, the Court asked whether Roe should be
reaffirmed, but ultimately avoided the issue. In three cases--
City of Akron, Thornburgh and Casey--the Court did reaffirm
Roe. But the last of these, Casey, did so in a way that hardly
left Roe on firm footing. In fact, Casey altered Roe by
eliminating the strict scrutiny standard of review and
replacing it with a lesser undue burden test. The result has
been that many restrictions on abortion have been upheld.
Second, just because Roe has been applied and reaffirmed
does not make it a special form of precedent. Many other cases
have been applied for decades before eventually being
overruled. For example, Plessy v. Ferguson, the case
establishing the principle of separate but equal, was upheld
for nearly 60 years before it was overruled, and certainly
discredited today.
Lochner v. New York, a case that greatly limited the power
of the States to protect children and workers, was consistently
applied for more than 30 years before it was overruled. And
Swift v. Tyson, a case establishing the doctrine of Federal
common law, was a bedrock principle of American law repeatedly
applied and upheld for nearly 100 years before it too was
struck down. Thus, the mere fact that Roe has been upheld for
more than 30 years does not mean that it is entitled to special
deference.
Third, from the start, Roe has been criticized by lawyers,
scholars and judges, whether Democrats or Republicans and, to
date, it does remain controversial.
Fourth, much has happened over the last 30 years to
undermine the soundness of Roe. Senator Brownback has mentioned
how the facts of Roe have changed. We now know that the
plaintiff in Roe based her case on false statements and that
she wants the case overturned. We also know much about the life
of babies in utero that we did not know 30 years ago.
We even know something about the internal deliberations of
the Justices who decided Roe. In an internal Supreme Court
memo, Justice Harry Blackmun, the author of Roe, acknowledged
that the trimester framework established in his opinion was,
and I quote, ''arbitrary.'' And Justice Lewis Powell said that
he could not find a right to an abortion within the
Constitution and decided instead to rely on his gut.
Finally, whatever the term ``super precedent'' means, I do
not think that it describes Roe. In an article by William
Landis and Richard Posner, super precedent was defined this
way. It is a, and I quote, ``precedent that is so effective in
defining the requirements of the law that it prevents legal
decisions arising in the first place, or if they do arise,
induces them to be settled without litigation,'' end of quote.
In other words, super precedent is precedent that is so firmly
entrenched in our legal system that people simply don't
question it.
Marbury v. Madison, the case establishing the power of
judicial review, is super precedent. It is so well settled that
litigants do not challenge it in court. In fact, it is one of
the fundamental assumptions upon which our constitutional
system is built. Roe is hardly Marbury. Is Roe Supreme Court
precedent? Certainly, but in my view it is not super duper
precedent or even super precedent. It is precedent, nothing
more.
Judge, I want to turn now to another topic, to an issue
that several Federal judges in Ohio have brought up to me
during our conversations. As you know, the Supreme Court
currently decides about 75 cases a term. This number is down
dramatically from where it was just a generation ago. In 1976,
for example, the Court decided almost 400 cases on the merits,
more than five times what it does today.
This incredible shrinking Supreme Court docket has been the
focus of much attention over the past few years, a lot of
discussion. One result of the Court deciding fewer and fewer
cases is that more and more circuit splits are left unresolved,
which is what I want to talk to you about.
As we all know, a circuit split occurs when two or more
Federal Courts of Appeals disagree on an issue of Federal law.
As of late, circuit splits have become so pervasive that the
Seton Hall Law School came out last year with a new Law Review
dedicated exclusively to that issue. There is also a website
written by a law professor at the University of Richmond,
solely committed to identifying new circuit splits. Hardly a
week passes when at least one does not emerge.
To me, these pervasive and unaddressed circuit splits
create three problems: one, organizations that transact
business across State lines, get caught in the cross-hairs of
the his confusion, being subject to one interpretation of
Federal law in California and a different one in the State of
Ohio; second, Federal judges are placed in a difficult
situation trying to figure out what the law requires. In fact,
a number of Federal judges in Ohio have talked to me, as I
said, about this; and finally, circuit splits undermine the
goal of having uniformity in our Federal law.
Let me just ask what is your opinion about this issue? In
your experience has the Supreme Court's shrinking docket caused
problems for businesses, lower court judges, individuals? Is
there a problem with the number of unresolved circuit splits?
And if the Court takes more cases, do you think that will solve
the problem?
Judge Alito. Well, that's a difficult issue for me to
address from my current position as a judge of a court of
appeals because the Supreme Court is my boss, and I am
reluctant to suggest that I think they should be doubling their
workload.
[Laughter.]
Senator DeWine. Oh, go ahead.
[Laughter.]
Judge Alito. That's not the sort of--or even increasing it
at all. That's not the sort of thing that subordinates
generally do regarding superiors. But circuit splits are
certainly undesirable, and I think everybody recognizes that,
and that's one of the grounds for granting certiorari. I know
that when Justice White was on the Court he regularly would
dissent from denial of certiorari in cases where there was a
circuit split because he felt strongly that circuit splits
should be resolved by the Supreme Court.
I have friends, former colleagues from prior times in my
career, who are appellate attorneys who specialize in cases
before the Supreme Court and in appellate litigation generally,
and occasionally I hear them complain about unresolved circuit
splits that are difficult for their clients. So I'm aware of
their complaints.
I haven't personally kept track of the number of circuit
splits that exist, but certainly they are undesirable thing,
and it is a ground for granting certiorari, and I think one of
the jobs that the Supreme Court has is to iron out circuit
splits. There can be disagreements about whether there really
is a circuit split, obviously, in a particular case, and there
can be differences of opinion about the timing for resolving
circuit splits. Sometimes the Supreme Court thinks it's
advisable to wait and see how an issue plays out in a number of
circuits before the Supreme Court decides to take on the issue,
and that may improve their ability to resolve the issue when
the case generally--when the case eventually comes before them.
Senator DeWine. Judge, let me suggest that I think it is a
problem and I think the Supreme Court needs to deal with it.
Chief Justice Roberts indicated that he thought the Court could
take on more, and I would suggest that they could. I appreciate
your comments.
Judge Alito, let me ask you about Congress's power to
protect our children from the proliferation of pornography on
the Internet. This is an important issue. I raised it at the
last hearing. It is one that I think is very troubling.
Congress has tried several times to protect our children from
being exposed to pornography on the Internet. In 1996, we
passed the Communications Decency Act, but the Supreme Court
struck it down, citing the First Amendment. A few years later
we passed the Child Online Protection Act. Again, the Court
struck it down.
What bothers me about these cases is they fail to account
for something that to me seems relatively simple. At the core
of the First Amendment is the protection of political speech,
but it seems to me that pornography is altogether different.
Unlike political speech, pornography has very little value if
it has any value at all. It does not communicate a message
other than one that degrades women. It does not contribute to
the public debate, and actually causes harm to the victims who
take part in making it, and those who use it.
There are, of course, a number of cases that seem to
recognize that pornography is of lesser value speech. In Young
v. American Mini Theaters the Court upheld zoning regulations
on adult theaters. In doing so, Justice Stevens had this to
say, and I quote, ``Even though we recognize that the First
Amendment will not tolerate the total suppression of erotic
materials that have some arguably artistic value, it is
manifest that society's interest in protecting this type of
expression is of a wholly different and lesser magnitude than
the interest and untrammeled political debate.''
Let me ask you, Judge, what is your thinking on this
subject? Is pornography lesser value speech, as Justice Stevens
has seemed to suggest, and are there, or should there be,
different levels of speech under the First Amendment?
Judge Alito. I think that the problem of protecting
children from pornography on the Internet illustrates the fact
that although the task of the judiciary is to apply principles
that are in the Constitution and not make up its own
principles, to apply those to different factual situations when
the world changes, and in particular, in the First Amendment
context, when means of communication changes. The job of
applying the principles that have been worked out--and I think
in this area worked out with a great deal of effort over a
period of time--in the pre-Internet world, applying those to
the world of the Internet is a really difficult problem, and I
understand it. Congress has been struggling with it, and I know
the judiciary has been struggling with it.
The law, of course, as you know, constitutional law draws a
distinction between obscenity, which has no First Amendment
protection but is subject to a very strict definition, and
pornography, which is not obscenity but is sexually related
materials, with respect to minors, the Supreme Court has said
that it's permissible for a State to regulate the sale of
pornography to minors, has greater authority there. I think
that's the Ginsburg case. It has greater authority there than
it does with respect to the distribution of pornography to
adults.
Now, in the pre-Internet world, the job of preventing
minors from purchasing pornography was a lot simpler. If they
wanted to get it, I guess they would have to go to a store or
some place and buy it. But on the Internet, of course, it's
readily available from any computer terminal, and a lot of
minors today are a lot more sophisticated in the use of
computers than their parents, so the ability of parents to
monitor what they're doing and supervise what they're doing is
greatly impaired by this difference in computer aptitude. I
can't say much more about the question than that. It is a
difficult question. I think that there needs to be additional
effort in this area, probably by all branches of Government so
that the law fully takes into account the differences regarding
communication over the Internet and access to materials over
the Internet by minors.
Senator DeWine. Judge, I have one last question. If
confirmed to the Supreme Court, only part of your job will be
hearing arguments and issuing opinions. An equally important
part of the job will involve deciding which cases to hear in
the first place. Each year the Supreme Court receives
approximately 8,000 petitions for cert., cert. petitions, as
they are called. These are petitions by a party to a lawsuit
asking the Court to hear its case. Out of these 8,000 annual
requests, the Court decides to hear only about 75 to 80. For
many years individual Justices would review each cert. petition
and cast a vote on whether to hear the case. Today, however,
eight of the Justices are part of what is called the cert.
pool. Here is how it works. All petitions are put into a pool.
A single law clerk then picks up a petition, writes a memo
recommending for or against hearing the case. That memo is then
circulated to the eight Justices in the cert. pool who use it
to cast their vote on whether to hear the case. Justice Stevens
is the only one who does not participate in this pool. Instead
he has his staff prepare a memo on each case with a
recommendation tailored to his own thinking on an issue. It
would seem to me that the cert. pool greatly limits the
exchange of ideas among members of the Court.
I wonder if you could tell me how you would intend to
proceed, if you are going to use the pool or if you are going
to do what Justice Stevens does, or if you have thought about
it.
Judge Alito. I have--I'm aware of the issue, but I have not
thought past what might happen with these confirmation
proceedings. So it's not the kind of issue that I have really
thought through in my mind. If I'm fortunate enough to be
confirmed, I think I would assess the situation at that time
and talk to the Supreme Court Justices and see what their views
are, the reasons why they're proceeding in one way or another.
I know from my perspective as a lower court judge, that
there is a constant conflict between the obligation that we
have to deal with a very heavy caseload and the need for the
judge, as opposed to a law clerk or a staff employee of the
Court to deal with the cases. We cannot delegate our judicial
responsibility, but we do need to call on--we need to find
ways, and we do find ways, of using--of obtaining assistance
from clerks and staff, employees, so that we can deal with the
large caseload that we have.
Senator DeWine. Thank you, Judge.
Chairman Specter. Thank you, Senator DeWine.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
Good afternoon, Judge. Because Sandra Day O'Connor was the
fifth vote on both Lopez and Morrison, I think I would like to
start with the Commerce Clause, and your views of federalism.
Do you agree with the direction the Supreme Court took in
Lopez?
Judge Alito. Well, Senator that really relates to the next
case in the Lopez-Morrison line of cases that might come before
the Supreme Court, and so I don't know how I can address that
question without knowing what that case is, and of course, my
resolution of it would--
Senator Feinstein. I was just asking you about Lopez, but--
Judge Alito. Well, Lopez is--
Senator Feinstein [continuing]. If you do not want to
answer, that is OK.
Judge Alito. Lopez is a precedent of the Court, and it's
been followed in Morrison, and then it has to be considered
within connection with the Supreme Court's decision in Raich,
and I think that all three of those have to be taken into
account together. I don't think there's any question at this
point in our history that Congress's power under the Commerce
Clause is quite broad, and I think that reflects a number of
things, including the way in which our economy and our society
has developed, and all of the foreign and intrastate activity
that takes place, we do still have a Federal system of
Government, and I think most people believe that that is the
system that's set up by our Constitution.
Senator Feinstein. Having said that, I pulled the Rybar
case and read it over the noon break. Let me just see if we
agree on the facts, and stop me if you think I am misquoting or
misstating anything. The Rybar case essentially took place the
year after Lopez. It involved Mr. Rybar, who was a federally
licensed gun dealer who went to a gun show in Pennsylvania and
bought a Chinese type 54, 7.62-millimeter submachine gun one
day, sold it to Mr. Baublitz, went back the next day and sold
him a military M-3, 45 caliber submachine gun. The grand jury
indicted him on two counts of unlawful possession of a machine
gun in violation of the law, and two counts of unlawful
transfer of an unregistered firearm. He changed his plea, pled
guilty to two counts. I think he pled conditionally guilty to
two counts.
When the case came before you, and I read with great
interest your dissenting opinion, you said, and I quote, ``If
Lopez, which happened the year before, does not govern this
case, then it may well be a precedent that's strictly limited
to its own peculiar circumstances, but our responsibility is to
apply Supreme Court precedent. That responsibility, it seems to
me, requires us to invalidate the statutory provision at issue
here in its present form.''
And then you went on to say that the present form ``might
be sustainable in its current form if Congress made findings
that the purely intrastate possession of machine guns has a
substantial effect on interstate commerce, or if Congress or
the Executive assembled empirical evidence documenting such a
link. If, as the Government and the majority boldly insist, the
purely intrastate possession of machine guns has such an
effect, these steps are not too much to demand to protect our
system of constitutional federalism.''
So if I understand this, you essentially said that you
wanted to follow precedent, newly established law in this area,
and you left a little hedge that if the Congress did make
findings in that law, then that might be a different situation.
If Congress did make findings, would you have agreed that that
statute would have been constitutional?
Judge Alito. Well, what I said in the opinion and what I
will reiterate this afternoon is that it would have been a very
different case for me. I don't think I can express an opinion
on how I would have decided a hypothetical case.
Senator Feinstein. It is not hypothetical. I am just asking
you if there were findings, as you said, you might have
sustained the law--
Judge Alito. And I read it like that. I think it would have
been--
Senator Feinstein. I am just asking you, would you have
sustained the law for findings--
Judge Alito. I don't think that I can give you a definitive
answer to the question because that involves a case that's
different from the case that came before me. But I repeat what
I said there, it would have been a very different matter if
Congress had made findings. I have the greatest respect for
findings. This is an area where Congress has the expertise and
where Congress has the opportunity to assemble facts and to
assess the facts. We on the appellate judiciary don't have that
opportunity. So if Congress had made findings--and I didn't
insist on findings. If the Executive branch, which was
defending the statute, had pointed to testimony at hearings--
and that's been done in other Commerce Clause cases--or
statements by responsible Government officials with expertise
in the area of firearms control, or any other evidence that
substantiated this, it would have been a very different case
for me, and of course, if there had been a jurisdictional
element, then I think it's perfectly clear under the precedents
that it would have been constitutional.
Senator Feinstein. I accept that with one exception. I
think most people know that guns, particularly machine guns, do
affect interstate commerce, and there is generally no question
about that. With one look at the gun trace, even before Mr.
Rybar had the gun, the likelihood was that it came across State
lines, particularly the Chinese model. So I think that is a
difficult extrapolation for me to understand, but that is not
necessarily dispositive.
Let me go on. At the conclusion of your dissent, you wrote
that, ``Even today, the normative case for federalism remains
strong.'' Now, federalism is often used to describe the
strengthening of State powers at the expense of the Federal
Government. What exactly did you mean by that statement?
Judge Alito. I meant that there are activities that--and I
think there is general agreement on this, and it goes beyond
what the Constitution requires into areas of policy that I
think Congress respects. I think there is general agreement
that there are some activities that have traditionally been
handled by the States and by local governments. Those are areas
in which they have taken the lead because the view has been
that they are in the best position to deal with that. And that
was the issue that was directly addressed by Justice Kennedy's
concurrence in Lopez. He relied in large part on the fact
that--he put heavy reliance on the fact that what was involved
in Lopez was a law relating to schools. And although the
Federal Government certainly has a role in education,
traditionally that has been regarded as something that is
primarily to be handled at the State and local level.
Senator Feinstein. OK. Now, you cited a law review article
by a professor named Stephen Calabrese. In that article, he
argues that Lopez was a revolution that shattered forever the
notion that after 50 years of Commerce Clause precedent, we
could never go back to the days of limited national power. Do
you agree with that?
Judge Alito. I agree that Lopez was a startling development
for a lot of people. When I was in law school, I think the
traditional wisdom was that the commerce power reached
everything, that there was no limit to the power, that nothing
could ever exceed the power. And Lopez and the Lopez line of
cases have not made huge inroads on that principle, but it was
the first time in a long time that a statute had been held to
exceed Congress's commerce power. So to that extent, yes, it
was a revolution, but how big of a one--
Senator Feinstein. See, I would say not yet has it made
that kind of a dent, and that is why your nomination is so
important, because you could be a decisive vote in this area.
Do you believe that the Supreme Court's Commerce Clause
decisions in the 50 years preceding Lopez are settled law?
Judge Alito. I think that--I'd have to talk about
individual cases, but I do think most of those are--the ones
that come to my mind I think are well-settled precedents.
Senator Feinstein. OK. Now, unlike the machine gun law in
Rybar, the Family and Medical Leave Act in Chittister did
include congressional findings of fact, as the Supreme Court
confirmed, and yet you authored the majority opinion to
invalidate the law.
Judge Alito. Well, in Chittister--
Senator Feinstein. Do you see a contradiction in that?
Judge Alito. I don't, Senator. I don't believe that there
were congressional findings in Chittister that went to the
issue in Chittister.
Senator Feinstein. OK. That is good. Now, let me ask you
some questions. Is it enough for Congress to provide findings
of fact in a statute, or do the findings of fact need to be
deemed sufficient by a court?
Judge Alito. Well, what the Supreme Court has said is that
findings of fact are very helpful when they are provided. And
the Court will certainly treat them with respect. But they are
neither--they are not necessarily definitive, and they also are
not necessary. Congress doesn't have to make findings. It is
helpful when it does it, and under the Supreme Court's cases,
the findings are not necessarily definitive. That is what the
Supreme Court has said about this.
Senator Feinstein. Yes, but you struck down Rybar.
Essentially, you said it would have a much better chance with
you if it had findings of fact. And this was a case where prior
laws had major findings of fact with respect to machine guns. I
mean, this wasn't a new thing.
Judge Alito. Senator, I looked very carefully at all of the
materials that were cited by the other judges in Rybar and that
were provided by the Government. And the things that were cited
from the legislative history of the prior statutes did not, in
my view, go to the issue in Rybar. All of those prior statutes
were statutes that had jurisdictional elements in them. All
that I was looking for was some evidence that the possession of
a machine gun--not the transfer of a machine gun or the sale of
a machine gun, but the mere possession had a substantial effect
on interstate commerce. That is what I understood the Supreme
Court precedent to require. And it is not a very heavy burden
to show that something has a substantial effect on interstate
commerce, but that is what I understood the Supreme Court
precedent to require and that is what I was looking for.
Senator Feinstein. OK. Let's move to the issue of a woman's
right to choose and Roe. This morning, Senator Specter talked
about how Casey reaffirmed the original soundness of Roe and
then put emphasis on precedent. And he then asked, ``How would
you weigh that consideration were this issue to come before
you, if confirmed? '' And in response, you said, and I would
like to quote, ``Well, I agree that in every case in which
there is prior precedent, the first issue is the issue of stare
decisis, and the presumption is that the Court will follow its
prior precedents. There needs to be a special justification for
overruling a prior precedent.''
Can you give us a few examples of a special justification,
not including Brown v. Board of Education, which you think
would qualify?
Judge Alito. There are a number of factors that figure in
the application of stare decisis in particular cases. There are
factors that weigh in favor of stare decisis, and there are
factors that weigh against stare decisis. Factors that weigh in
favor of stare decisis are things like what the initial vote
was on the case, the length of time that the case has been on
the book, whether it has been reaffirmed, whether it has been
reaffirmed on stare decisis grounds, whether there has been
reliance, the nature and the extent of the reliance, whether
the precedent has proven to be workable. Those are all factors
that have to be considered on an individual basis.
Senator Feinstein. But I am asking you what the special
justification would be, that you mentioned this morning, to
overcome precedence and reliance?
Judge Alito. Well, I think what needs to be done is a
consideration of all of the factors that are relevant. This is
not a mathematical formula. It would be a lot easier for
everybody if it were. But it is not. The Supreme Court has said
that this is a question that calls for the exercise of
judgment. They have said there has to be a special
justification for overruling a precedent. There is a
presumption that precedents will be followed. But it is not--
the rule of stare decisis is not an inexorable command, and I
don't think anybody would want a rule in the area of
constitutional law that pointed in that--that said that a
constitutional decision, once handed down, can never be
overruled.
So it's a matter of weighing all of the--taking into
account all of the factors and seeing whether there is a strong
case based on all the relevant--
Senator Feinstein. My question was a different one,
respectfully.
Judge Alito. I am sorry, Senator.
Senator Feinstein. It was, can you give me a few examples
of what you think would qualify as a special justification for
overruling prior precedent? And the reason I ask you this is in
our private conversation, you said to me that you did not think
there had been any case you could think of that had been more
tested than Roe.
Judge Alito. Well, Roe has--sorry.
Senator Feinstein. What special circumstance would there be
which would overcome this kind--whether you call it super
precedent or super duper or anything, but this kind of
protracted testing over a 33-year period of time?
Judge Alito. Senator, I'm sorry if I didn't understand your
question previously. One situation in which there is a special
justification for overruling a precedent is if the rule has
proven to be unworkable. An example where the Supreme Court
thought that a rule had proven to be unworkable is provided by
National League of Cities and San Antonio Transit Authority v.
Garcia. National League of Cities asked whether something was
traditionally a sovereign function. And that resulted in a
whole series of cases in the lower courts, a large number of
cases in the lower courts, and a number of cases in the Supreme
Court in which the courts had to decide whether something was
on one side of this line or not, and it proved in the view of
the Supreme Court to be a very difficult standard to work with.
And, finally, in Garcia, they said this is unworkable, and we
are going to overrule National League of Cities, and we are
going to leave it to Congress to deal with the federalism issue
that is presented here. This is an example of the Supreme Court
saying there is a federalism concern here, but it is one that
Congress rather than the Court would have to deal with.
Sometimes changes in the situation in the real world can
call for the overruling of a precedent. An example of that is
provided by Katz v. United States, which I was talking about
this morning in relation to wiretapping. The old rule under
Olmstead was that in order for there to be a search, you had to
look to property law. You had to see whether there was an
invasion of a property interest. And then with the development
of electronic communications and electronic surveillance,
wiretapping or other forms of electronic surveillance, which is
what was involved in Katz, the Supreme Court said this isn't a
sensible way to apply the Fourth Amendment principle under the
conditions of the modern world, and they said famously that the
Fourth Amendment protects people, not places. So they shifted--
they found the doctrinal underpinnings of the old Olmstead rule
to be undermined by developments in the society, and they
shifted the focus from property law to whether somebody had an
expectation of privacy.
So those are examples.
Senator Feinstein. Well, and you did say that you believe
the Constitution provides a right of privacy.
Judge Alito. I did say that. The 14th Amendment protects
liberty. The Fifth Amendment protects liberty. And I think it
is well accepted that this has a substantive component, and
that that component includes aspects of privacy that have
constitutional protection.
Senator Feinstein. Let me ask you about your dissent in
Casey. You reasoned that most women seeking abortions are
either unmarried or would tell their husbands and, therefore,
few would be harmed if spousal notification was required.
Justice O'Connor, on the other hand, ruled, and I quote, ``The
proper focus of constitutional inquiry is the group for whom
the law is a restriction, not the group for whom the law is
irrelevant.''
Why did you propose a different approach than Justice
O'Connor?
Judge Alito. Well, I mentioned the fact in my opinion that
this provision applied only to married women, but I don't think
that was really the focus of what I was getting at. I think--
and I agree with her that you look at the group that's
affected, not the group that's unaffected, and the standard
that she had--so that would be women who fell within this
provision of the Pennsylvania law. And the standard that she
had articulated in the earlier cases was, as I described it a
couple of minutes ago, that an undue burden in her view had to
be an absolute obstacle or an extreme obstacle, and it could
not be simply something that inhibited some women. The ``some
women'' phrase was her phrase, not my phrase.
Senator Feinstein. Now, I am going to ask you about one
other quote that some of my colleagues may disagree with what
Justice O'Connor said, but she said it, and that is, ``The
State may not give to a man the kind of dominion and control
over his wife that parents exercise over their children.'' Do
you agree with that?
Judge Alito. I never equated the situation of an adult
woman who fell within the notification provision of the
Pennsylvania statute with the situation of a minor who was
required to provide notice. There is an analogy, and the
earlier case that Justice O'Connor had decided, the Hodgson
case, was a minor notification statute. But I think I made it
quite clear in my opinion that this was nothing more than an
analogy and that there was no close--these situations were very
distinct, and I was aware of that, and I think I pointed that
out.
Senator Feinstein. Let me move on, if I might. One of the
core principles of Roe is that a woman's health must be
protected. In Casey, Justice O'Connor specifically wrote that
after viability, the State may, if it chooses, regulate and
even proscribe abortion, except where it is necessary in
appropriate medical judgment for the preservation of the life
of the mother. This requirement to protect a woman's health was
also reaffirmed in Stenberg v. Carhart, where it was said the
Court rejects Nebraska's contention that there is no need for
health exception.
Do you agree, if the statute restricts access to abortion,
that it must protect the health of the mother in order for it
to be constitutional?
Judge Alito. Well, I think that the case law is very clear
about protecting the life and the health of the mother is the
compelling interest throughout pregnancy. I think that's very
clear in the case law.
Senator Feinstein. Thank you. I appreciate that.
In 1985, at the time you wrote the strategy memo on
Thornburgh, the Court had already held in Roe, Akron, and
eventually 30 other cases, that a woman had a constitutional
right to choose whether to continue a pregnancy. In addition,
in your memo, you specifically wrote that in the Akron case,
the Supreme Court reaffirmed Roe. However, despite this, your
memo outlined a strategy to eventually overturn Roe.
My question is a little different from what you discussed
somewhat yesterday. What was your view of precedent at the time
you wrote that memo?
Judge Alito. Well, I think there are two things that I
should say in response to that. The first is that I did not
advocate in the memo that an argument be made that Roe be
overruled, and therefore, the whole issue, had the Government
proceeded with the argument that I recommended, the issue of
stare decisis wouldn't have been presented and so there wasn't
any occasion for me to talk about stare decisis in the memo and
I did not talk about it. I think there's a mention of it in a
footnote. So I didn't address it and there wasn't an occasion
to address it.
The second thing I would say is that stare decisis is a
concern for the judiciary much more than it is for an advocate.
An advocate is trying to achieve a result, and so an advocate
is--for an advocate, stare decisis can be either a great
benefit if it is in your favor or an obstacle to get over. But
it isn't the kind of issue that needs to be grappled with in
the way in which a court has to grapple with stare decisis.
Senator Feinstein. OK. In Casey, you wrote about the harms
caused by spousal notification to the practical effect that the
law will not amount to an undue burden unless the effect is
greater than the burden imposed on minors. Just to go back to
that, is this what you meant?
Judge Alito. Well, Senator, I don't--I do not equate the
situation of a married woman with the situation of a minor--
Senator Feinstein. I know you keep saying that, but I keep
going back to the words and they seem to say something else.
Judge Alito. Well, I think if you look at the words, I
actually said that I don't equate these two situations. I was
mindful of the fact that they are very different situations.
But often, the law proceeds on the basis--legal reasoning is
based on analogy, and so if you take a situation that's quite
different and yet has some relationship to a situation that
comes up later, you can draw some analogies while still
recognizing that the two situations are very different.
If you're talking about the potential for abuse, that
certainly is something that can come up in either of these two
contexts and it's a tragedy in either context. If a single
minor is abused as a result of notification, that's a tragedy.
If a single adult woman is abused as a result of notification,
it's a tragedy.
But what I think I'm getting at there is that this is what
we had. This is what I had. This was the information that I had
to work with to try to understand what this provision meant.
And so you work with what you've got and that's what I had and
I was trying to see to what degree the prior situation was
relevant and to what degree it wasn't relevant to the issue
that was before me.
Senator Feinstein. I'd like to quickly just switch subjects
for a moment just to clarify something you said this morning,
and this has to do with electronic surveillance of Americans.
As you know, in 1978, the Congress, after a lot of
introspection, passed a bill called the Foreign Intelligence
Surveillance Act, which we call FISA, which essentially set up
the parameters for all electronic surveillance within the
United States. It's very specific, if you read it. There is a
great concern right now because of what's been happening with
respect to electronic surveillance, quite possibly involving
Americans as well as foreigners.
You said something interesting this morning. You said,
generally, there has to be a warrant issued by a neutral and
detached magistrate before a search can be carried out. Now,
with respect to the FISA law, Senator Birch Bayh, the Chairman
of the Intelligence Committee at the time, spells out in the
Committee Report that this covers all surveillance in the
United States. And then President Carter, when he signed the
law, said this covers all surveillance within the United
States. So there is a burgeoning question as to whether the
President now has the authority to wiretap Americans without
going to the FISA court.
When you said, generally, there has to be a warrant, what
that said to me was you were providing for an exception. Is
that correct? Are you providing for an exception?
Judge Alito. I think that what I was addressing when I said
that was what the Fourth Amendment means, the general principle
that is set out in the Fourth Amendment, and the case law under
the Fourth Amendment says that a warrant is generally required,
but there are well-recognized situations in which a search can
be carried out without a warrant. Exigent circumstances is a
situation that comes immediately to mind if--
Senator Feinstein. Well, let me stop you here. Do you
recognize Justice Jackson's comment in the 1952 steel case
where he set up that tripartite framework--
Judge Alito. I do--
Senator Feinstein [continuing]. Of Presidential authority
and when it is at its weakest is when Congress has legislated?
And in 1978, Congress did legislate and covered the horizon, so
to speak?
Judge Alito. Yes, Senator, I recognize that and I think
that's a very useful framework for addressing issues of
Executive power. Now, there is a question about what the
meaning of what Congress did, and that would be a statutory
question. What is the meaning of the provision of FISA in
question, and maybe there's no substantial argument about what
was meant there, but maybe there would be an issue about what
was meant there, and certainly there could be an issue about
the meaning of the authorization on the use of military force.
How far was that intended to go?
And so the statutory question, I think, would--that
certainly would be an issue that could come up in this
situation and probably you would need to--I think you would
have to resolve the statutory question before you could figure
out which of the three categories that Justice Jackson set out
the case fell into.
Senator Feinstein. Thank you. I've run out of time. I'll
continue this next session. Thank you.
Judge Alito. Thank you, Senator.
Chairman Specter. Thank you, Senator Feinstein.
Senator Sessions?
Senator Sessions. Thank you, Mr. Chairman. We've got a good
hearing, I believe. A lot of exchanges have occurred. I will
agree with Senator Biden. I can't remember a nominee being this
forthcoming. You have gone into more detail about questions
that may come up before you without going too far, in my
opinion, than we have seen before. You have been very open and
I have been very impressed with your analytical spirit and your
ability to handle these cases.
We need an aggressive hearing. I agree with those who say
that questions need to be propounded to the nominee because
this is the only chance that, politically, that we will have,
that you will ultimately be on the bench for life,
unaccountable to the political process. So it is good to ask
questions.
My concern is similar to that of Senator DeWine, that many
of the accusations and allegations are unfounded or distortions
are really not fair, and some of the things that have been said
about you are not correct. If they were correct, you would not
receive the overwhelming support of your colleagues and have
that admiration so totally as you do.
Judge Alito, we talk about the role of a judge and how you
handle cases that come before you. You were asked, what is your
opinion on Lopez, and you said, well, I haven't studied that
case precisely, or at least the background of it. I didn't sit
on it. Would you explain to us, as an appellate judge, as you
do today, but also even more so as a Supreme Court Justice, how
cases come to you and what you should do before you make a
decision or express an opinion on the ultimate outcome of a
case, why you should be careful and what this great legal
system that we have arranges for before a judge makes that
final decision?
Judge Alito. Well, certainly, Senator. We have an adversary
system and that means that both sides get the opportunity to
present their arguments, and we have established judicial
procedures and they are time consuming and they are burdensome
and maybe some people would say that some of them are old
fashioned. But I think they work well and they are designed to
make sure that there's the vigorous presentation of both sides
of the issue that is presented in the case at hand, not some
abstract issue that might be addressed in a law review article
or a broad issue that might be addressed in a piece of
legislation, but an actual concrete case, a dispute between
real parties that comes before the court. Both sides have the
opportunity to present the arguments that they think have a
bearing on that case. The judges get the opportunity to read
the briefs, and then in--
Senator Sessions. Can I interrupt you there? And you are
talking about the appellate court.
Judge Alito. That's correct.
Senator Sessions. There has been a trial with jurors and
witnesses and trial judges and those kinds of things that has
already occurred. It is now on appeal. No witnesses are being
called, but the transcript is available and one side or the
other is alleging that they weren't treated fairly, is that
correct?
Judge Alito. That's correct.
Senator Sessions. So you decide whether or not a fair trial
occurred. Continue now with the process and how you ultimately
come to make a decision.
Judge Alito. Well, we receive briefs and the briefs are
well thought out by the attorneys and it provides, if the case
is well briefed, a strong presentation of the positions on both
sides of the question, and if it's an issue of great public
importance, there may be other people who file briefs, so
called friends of the court. On the Supreme Court now these
days, they get a lot of those on both sides of many of the big
issues that come before them. So that ensures that they have a
strong presentation of all the arguments that can be made on
both sides of the issue, both sides of the case.
The first step in the process would be to read all of those
and then there would be an oral argument. At that point, the
Justices of the Supreme Court or the judges of my court--
Senator Sessions. Now, oral argument means the lawyers for
each party come and orally argue the case before the court, is
that correct?
Judge Alito. That's right, and--
Senator Sessions. Now, you should not have made up your
mind even at that point, should you?
Judge Alito. You shouldn't. I think very often, I come into
an oral argument with a tentative idea about how the case
should be decided. I've thought through the issue as much as I
can, but my mind is open to the possibility that something will
happen during the oral argument or later in my discussion with
the other judges that might change my mind.
So we have the oral argument and the lawyers will make
their presentation. In that situation, I have the opportunity
to ask questions, unlike today. That's a better situation to be
in, but it gives me a chance to explore the issues in the case
that are troubling to me and I can pose hypotheticals to the
lawyers and try to explore how far their arguments go.
And after we have the argument, the judges get together in
what's known as the conference. That's a private meeting when
just the judges are present. And we each discuss the case, and
very often one of my colleagues will say something that makes
me think about the case differently than I did going into the
conference. But at the end of the conference, if we've all
voted, then we exchange our views and we come to a conclusion
about how a case should be decided.
And it's only at the end of that process that we actually
have a vote on the decision, and then somebody is given the job
of writing an opinion and sometimes things even change during
the opinion writing process. There have been numerous cases in
which I've had the opinion and I've been given the job of
writing an opinion to affirm and in the process of--or the
reverse, and in the process of writing the opinion, I see that
the position that I had previously was wrong. I changed my
mind. And then I will write to the other members of the panel
and I will say, I have thought this through and this is what I
discovered and now I think we should do the opposite of what we
agreed, and sometimes they'll agree with me and sometimes they
won't.
So it's a long process and it's only at the end of that
whole process that I think a judge is in the position, when the
opinion is actually going to be issued, the judge is in the
position to say, now I've done everything I can with this and
this is how I analyze the issue.
Senator Sessions. And you said in your opening statement
that one of the habits that a good judge should develop is the
habit of delaying reaching conclusions until everything has
been considered, and I suppose that's why you would be somewhat
reluctant to express an opinion on Lopez or Bush v. Gore or
some of these other great decisions, because you would know
before you rendered such an important decision in a case like
that that you've given it the most thorough analysis and you've
read all the briefs and considered all the arguments of the
parties involved, is that correct?
Judge Alito. That's an important part of the legal process.
If anybody has sat on a jury, they've probably been instructed
by the judge not to reach any conclusions about the case until
they've heard all the evidence, not to reach premature
conclusions, and judges have the same obligation. Now, it
doesn't mean you don't think about things. You do think about
them, but you don't reach your final conclusion until you've
gone through this entire process.
Senator Sessions. You said earlier that no person in this
country, no matter how high or powerful, is above the law, and
no person is beneath the law. Can you assure us that you have
the courage and the determination to rule according to your
best and highest judgment of the value of the case, regardless
of whether or not the person who appointed you or the Congress
who confirmed you or any other political pressures that may
fall upon you?
Judge Alito. I can, Senator. I would do that to the best of
my ability. That is what I've tried to do on the court of
appeals, and if I'm confirmed, that's what I would do on the
Supreme Court.
Senator Sessions. I believe you will. That is your
reputation. That is what other lawyers say about you. That is
what professionals who know you conclude. I think it is an
important commitment that you have made to us.
You know, we have arguments about a number of cases and the
Rybar case has come up a good bit. It involves the machine gun.
I was a United States Attorney, as you were, and I prosecuted
machine gun cases for years. The Supreme Court said, on Section
922, there is no jurisdictional element. Now, historically,
criminal statutes of Federal law have jurisdictional elements.
The most common statutes historically that were prosecuted were
interstate transportation of stolen motor vehicles. It is not a
stolen motor vehicle, it is the interstate transportation that
makes it a Federal crime, or the interstate transportation of a
stolen property, or kidnapping. Kidnapping within a State is
not a Federal crime, it is only kidnapping that goes
interstate.
So I guess I would ask you to explain for those who may be
listening today what this historical procedure is that requires
a jurisdictional element of an interstate nexus for the Federal
Government to be able to prosecute a crime in some State or
county in America.
Judge Alito. Yes, Senator. Certainly. Well, let me start
with the Constitution. The Constitution gives the legislative
branch certain powers, and they're enumerated in the
Constitution. One of those powers is the power to regulate
interstate and foreign commerce, and a great deal of
legislation that Congress passed during the 20th century was
regulation that was based on its power to regulate interstate
and foreign commerce, and many of the criminal statutes that
Congress has passed, the Federal criminal statutes, are based
on Congress's power to regulate interstate and foreign
commerce.
So it's necessary for each of these statutes to fall within
this power to regulate interstate and foreign commerce, and one
of the ways of ensuring that each exercise of this power falls
within Congress's authority under the Commerce Clause is to
require that the jurisdictional element be proven in the case.
In the case of firearms, as I mentioned earlier, the Supreme
Court has said it's enough to show that the firearm at some
point in its history traveled in interstate and foreign
commerce, and my experience as a U.S. Attorney and before that
as an Assistant U.S. Attorney was that this is not a difficult
burden for prosecutors to meet. I can't recall a case during
the time I was U.S. Attorney where anybody expressed the
slightest problem with satisfying this. So this is a very
simple way of satisfying the interstate commerce element in the
case of firearms offenses.
Senator Sessions. I couldn't agree more, and that is what
all the traditional firearms laws call for and that is how we
proved every case that I prosecuted. I approved it once because
it said, ``Made in Italy'' on the gun. But you prove that the
gun has been transported in interstate commerce and that is an
element that gives the Federal jurisdiction. As I understand
your opinion, you said if the Congress had simply put that in
the statute as an element of the offense, then it would have
met constitutional muster.
So I guess I would say to my colleagues on the other side
and others, maybe we ought to check this law out and write a
piece of legislation that puts in the jurisdictional element
like all the other historic criminal offenses have and we get
this thing done instead of fussing about it. I feel strongly
about that.
But when you don't make it a jurisdictional element, then
it is not a matter of proof, is that not right, Judge Alito,
and therefore, the defendant does not have all the elements of
the case proven beyond a reasonable doubt to the jury that here
is the case? That is why it is important.
Judge Alito. That is correct.
Senator Sessions. We talked about a lot of these cases. I
would just generally like to express my disagreement with those
who criticize the Garrett case. It did involve the University
of Alabama. I believe that the Attorney General of Alabama was
correct to assert that the plaintiff could sue, could get back
wages, could get their job back, but under the Sovereign
Immunity Doctrine that protects States from lawsuits, that
under the way that statute was passed, they could not get money
damages against the State of Alabama. I think that was the core
issue in it.
I also would like to join with Senator DeWine in his very
cogent analysis of precedent and super precedent. I think that
was insightful for us and would like to be on the record as
joining with that.
Judge Alito, back 20 years ago, you wrote a memorandum to
Solicitor General Charles Fried, who was a law professor, I
guess, before he became Solicitor General and went back to
Harvard and is there now, a brilliant legal mind. He was the
Solicitor General. You worked for him. You submitted a
memorandum on a Pennsylvania case, a case that came out of
Pennsylvania, and it seemed to me to be a preliminary analysis
of that issue and the question of whether or not that case
should be--whether the Department of Justice should intervene
in that case and file a friend of the court brief. Was it a
preliminary overview of the issue and not the final brief or
final summary of argument for the appeal?
Judge Alito. And that's the Thornburgh case that you're
referring to, Senator.
Senator Sessions. Thornburgh.
Judge Alito. Yes. It wasn't a brief. It was a memorandum
about whether the government should file a brief as a friend of
the court.
Senator Sessions. And you pointed out a number of points in
that decision that was being questioned that I thought were--
the court had overreached and gone too far. A number of them
are quite erroneous, it appeared to me, and you analyzed that
very carefully. But before you concluded your argument, you
suggested, and not suggested, you stated that you did not think
a frontal assault on Roe v. Wade would be appropriate, is that
correct?
Judge Alito. Yes, that's correct.
Senator Sessions. And was it not the position of President
Reagan and the Attorney General of the United States at that
time that Roe v. Wade was wrongfully decided and they would
seek the opportunity at some point to seek the overruling of
it?
Judge Alito. That was the express position of President
Reagan himself. He had spoken on the issue and he had written
on the issue.
Senator Sessions. So your opinion to the Solicitor General
as a young staff attorney in the Solicitor General's office
was, in some ways, contrary to that of the President of the
United States?
Judge Alito. Well, I was doing what I thought my job was as
an advocate, which was to outline the litigation strategy that
would be in the best interests of my client, given what my
client was interested in, and it seemed to me that the strategy
that I recommended was the best strategy to be followed.
Senator Sessions. And did they follow your suggestions?
Judge Alito. No, they did not. They argued that Roe v. Wade
should be overruled and the Supreme Court rejected that--
Senator Sessions. They, in fact, carried out a frontal
assault and it was not approved by the Court. So I think that,
to me, plus your other decision in which you ruled that Health
and Human Services funds could be utilized to fund an abortion
for those who qualified was a closed question, that case was, I
thought. There was a dissent in it, but you ruled in favor of
the pro-choice, the pro-abortion side of that case even though
a dissent argued that it was in error, is that correct?
Judge Alito. That is correct. That's what I thought the law
required. I thought we were required to defer to the Department
of Health and Human Services's interpretation of the statute
and so that's how I voted. And if I'd been out to implement
some sort of agenda to strike down--to uphold any abortion
regulation that came along, then I would not have voted the way
I did in that Elizabeth Blackwell case.
Senator Sessions. Back in your memorandum in 1985 on the
question of abortion, one of the provisions of the Pennsylvania
law that was struck down by the court of appeals simply said
that there must be a humane and sanitary disposal of aborted
fetuses, and you thought that was unwise and you pointed out
that there's a Federal statute already on the books that
mandates the humane disposal of excess wild free-roaming horses
and burros, did you not?
Judge Alito. Yes, that's correct. That was the statute.
Senator Sessions. So this idea that every time a court
rules on a pro-abortion opinion, that they're always correct, I
think is not true. I think the court has been awfully arrogant
and dismissive of the States' rights and legitimate concerns in
some of these questions that we're dealing with.
Judge Alito, you know the salary that a Federal judge
makes, is that right?
Judge Alito. I do, all too well.
[Laughter.]
Senator Sessions. You know what it would be on the Supreme
Court?
Judge Alito. I actually don't know exactly, no.
Senator Sessions. It's a little more, I think, not much. Do
you think you can live on that?
Judge Alito. I can. I've lived on a Federal judge's salary
up to this point.
Senator Sessions. You've been accused of favoring an all-
powerful Executive a couple of times in this Committee. Can the
President cut your pay?
Judge Alito. No, he can't do that. That's in--the
Constitution says that, fortunately. Well, nobody can. The
President certainly can't and Congress can't, either.
[Laughter.]
Senator Sessions. Have a sigh of relief there. They can
increase it, though, right?
Judge Alito. They can, yes.
[Laughter.]
Senator Sessions. Well, we have a tight budget. Senators
and Congressmen feel, sometimes privately they will tell you
they think they need to be paid more, but we are paid pretty
generously, in my view, and maybe we need to set some examples
about financial management. Maybe we would like to do more, but
it is difficult.
But I raise that point because a Supreme Court can declare
null and void a legislative enactment by the Congress, can it
not, if it violates the Constitution--
Judge Alito. Yes. Yes, it can.
Senator Sessions [continuing]. In their opinion?
Judge Alito. Yes.
Senator Sessions. Does anybody review the Supreme Court's
review?
Judge Alito. No. No.
Senator Sessions. And Congress can cut off money for any
program they want to. In fact, the Anti-Deficiency Act says it
is a crime for any agency of government to spend money that has
not been appropriated by Congress. Is that a reviewable Act by
anyone, for Congress not to fund a program or agency of the
U.S. Government?
Judge Alito. No, I don't think that's reviewable.
Senator Sessions. And aren't there things that the
Executive branch can do that are not reviewable?
Judge Alito. There are certainly some things that are not
reviewable. Vetoes are not reviewable. Pardons are not
reviewable.
Senator Sessions. So the mere allegation that an act of the
President is unreviewable may not be as disastrous as it sounds
or as bad as it sounds, because certain branches are given
certain powers.
Judge Alito. That's correct.
Senator Sessions. I would like to talk a little bit about
this question of activism, and I want to be frank about it.
Some of our liberal colleagues have correctly made the point
that conservatives can be activists, too. And if you take the
definition of activism as an action by a judge who allows their
personal, political, or social or moral values to override
their commitment to the law, do you believe that a judge who is
conservative can be an activist just as easily as one who is
liberal?
Judge Alito. Yes, I do. I don't think that activism has
anything to do with being a liberal or being a conservative. It
has to do with not following the proper judicial role. It has
to do with a judge's substituting his or her own views for what
the Constitution means and for what the laws mean.
Senator Sessions. Now, if a statute passed by Congress
plainly violates the Constitution, is it an activist decision
if the Court strikes it down, in your opinion?
Judge Alito. No, I think that's been settled since Marbury
v. Madison back at the beginning of the 19th century, that when
a case is presented to the Supreme Court and there is a
question raised about the constitutionality of a statute and
the Court concludes that the statute is unconstitutional, it's
the obligation of the Court to follow the Constitution and not
the statute.
Senator Sessions. Well, if you take the definition of
activism I think that Senator Hatch and others have used that
indicates, as we just discussed, that it is departing from the
faithful application of the law, I think you can have liberal
and conservative activists. But I would just say to you the
mere striking down of a statute that is unconstitutional is not
activism, not if you are faithful to the Constitution and to
the laws of the land.
And I would say this: I believe on our side of the aisle,
the deep concern that we have about judicial activism is a
legitimate one. We believe that there has been a liberal social
agenda being promoted too often by the courts that is foreign
to our history and contrary to the wishes of the American
people. I believe your philosophy is not one to enforce a
conservative activism. I believe your philosophy is simply to
follow the law and let the political branches debate these
issues and decide them through the proper political process.
Is that fair to say?
Judge Alito. That's exactly correct. The judiciary should
do what it is supposed to do, but it has to have respect for
the political process. And our constitutional system sets up a
Government under which most of the decisions, the policy
decisions, the things that affect people in their daily lives--
the spending of money, taxing, decisions about foreign policy,
and many other areas--are to be made by the political branches
of the Government, and the judiciary's role is confined to
enforcing the Constitution and enforcing the laws and not going
beyond that.
Senator Sessions. As you analyze how to interpret the
Constitution of the United States or a statute passed by the
U.S. Congress, do you believe that authoritative insight can be
obtained by reading the opinions of the European Union?
Judge Alito. I don't. I don't think that it's very
helpful--in fact, I don't think it is helpful to look at the
decisions of foreign courts for the interpretation of our
Constitution. I think we can do very well with our own
Constitution and our own judicial precedents and our own
traditions. And I don't say that with disrespect to the other
countries. But I don't think that there are insights to be
provided on issues of American constitutional law by examining
the decisions of foreign courts.
I think that it's very interesting from a political science
perspective to see what they've done, and I've personally been
interested in this over the years. And I think it's flattering
to us that so many other countries have followed our judicial
traditions. But on issues of interpretation of our
Constitution, I don't think that that's useful.
Senator Sessions. Judge Alito, this is a big deal in our
country today. Millions of Americans believe that the Court is
losing discipline, that it is not remaining faithful to the
Constitution. And, in fact, I share many of those views. A lot
of people do.
Do you think that if a court, in fact, is not faithful to
the law but allows personal or political or social views to
influence their decisions, that this could in the long run
endanger public respect for law and even undermine the great
heritage of the rule of law that we have in this country?
Judge Alito. I think that everybody who holds a public
office under the Constitution has a solemn responsibility to
follow the Constitution and the laws that define the role that
that person, that officer is supposed to play. And I think that
the continued success of our constitutional system and public
respect for the constitutional system are dependent on people
who have the public trust doing that, making a really strong
effort to follow the provisions of the Constitution and other
laws that define the role that they are supposed to play.
Senator Sessions. I would like to just once more touch on
this Groody case in which there was a search of a young girl. A
warrant was issued, was it not, by a Federal magistrate? Was it
a Federal magistrate?
Judge Alito. It was a State magistrate.
Senator Sessions. A State magistrate. And the police
officers go to the State magistrate, and they get a warrant,
and the magistrate says that the affidavit is made a part of
the search warrant. And the officers take it, and in their
search warrant, they made affidavit that the individuals in
this house known for distributing drugs often had drugs on
their persons. And they then went and executed the warrant
after going to the court and getting approval. And they find
people on the premises, and there were two females, and a
female officer took the two females into an upstairs bedroom
and did a quick search by asking them to pull down their outer
garments--not all their garments--pull up their blouse, and
determined they had no contraband or weapons on them. And that
was that. And the case came before you, years later, I suppose,
on a lawsuit against the police officers. And that is what you
were ruling on, were you not?
Judge Alito. That's right, whether they were liable for
money damages. And under the law, if they had a reasonable
belief that they were authorized by the warrant to search
people who were found on the premises, then they should not be
liable for civil damages. The warrant had been--the warrant had
incorporated the affidavit for purposes of establishing
probable cause, and the officers had said in the affidavit that
there is probable cause to believe that people on the premises
may have drugs on their possession, and the magistrate judge
had accepted that by incorporating the affidavit for purposes
of probable cause. And under those circumstances, I thought
that at a minimum it was reasonable for the officers to believe
that the judicial officer, the magistrate, had said that they
were to do exactly what they did.
Senator Sessions. I agree.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Sessions. Thank you,
Judge Alito.
At this point we will take a break until 5 minutes to 5.
[Recess 4:39 p.m. to 4:55 p.m.]
Chairman Specter. We now turn to Senator Feingold for 30
minutes.
Senator Feingold. Judge, thank you for all your patience
today and throughout this process.
Judge Alito. Thank you, Senator.
Senator Feingold. There has already been a lot of
discussion of this topic today, but I would like to be sure I
understand your opinion about whether the President, as
Commander in Chief, can ignore or disobey an express
prohibition that Congress has passed. The Torture Statute is
one example, but, obviously, I could imagine a variety of
others as well, as I am sure you could.
So here is the question: what are the limits, if any, on
the President's power to do what he thinks is necessary to
protect national security regardless of what laws Congress
passes?
Judge Alito. Well, when you say regardless of what laws
Congress passes, I think that puts us in that third category
that Justice Jackson outlined, the twilight zone, where
according to Justice Jackson, the President has whatever
constitutional powers he has under--he possesses under Article
II, minus what is taken away by whatever Congress has done, by
an implicit expression of opposition or the enactment of a
statute. And to go beyond that point, I think we need to know
the specifics of the case. We need to know the constitutional
power that the President--the type of Executive power the
President is asserting and the situation in which it's being
asserted, and exactly what Congress has done.
Senator Feingold. Then let us take a more concrete example.
Does the President, in your opinion, have the authority, acting
as Commander in Chief, to authorize warrantless searches of
Americans' homes and wiretaps of their conversations in
violation of the criminal and Foreign Intelligence Surveillance
statutes of this country?
Judge Alito. That's the issue that's been framed by the
developments that have been in the news over the past few
weeks, and as I understand the situation, it can involve
statutory questions, the interpretation of FISA, and the
provision of FISA that says that no wiretapping may be done
except as authorized by FISA or otherwise authorized by law,
and the meaning of the authorization for the use of military
force, and then constitutional questions. And those would be--
those are issues, as I said this morning, that may well result
in litigation. They could come before me on the Court of
Appeals for the Third Circuit. They certainly could come before
the Supreme Court. And before--those are weighty issues
involving two of the most important considerations that can
arise in constitutional law, the protection of a country and
the protection of people's fundamental rights, and I would have
to know the specifics and the arguments that were made.
Senator Feingold. They are indeed important questions, and
that is why it is so important for me to try to figure out
where you would be heading on this kind of an issue, and in
fact, the question I just asked you was not something I
formulated right now. It is the question that I asked word for
word of the Attorney General of the United States at his
confirmation hearing in January 2005. He answered as follows:
``Senator, the August 30th memo--that's the memo that we
sometimes refer to as the torture memo--has been withdrawn. It
has been rejected, including that section regarding the
Commander in Chief authority to ignore the criminal statutes.
So it's been rejected by the Executive branch. I categorically
reject it. And in addition to that, as I've said repeatedly
today, this administration does not engage in torture and will
not condone torture. And so what you're really discussing is a
hypothetical situation,'' was the end of his quotation.
Well, we now know, of course, that it was not a
hypothetical situation at all, and when the Attorney General
said he categorically rejected the torture memo, including the
section regarding the Commander in Chief's authority to ignore
criminal statutes, he was also not being straight with this
Committee. So I would like you to try to answer this question.
Can the President violate or direct or authorize others to
violate the criminal laws of the United States?
Judge Alito. The President has the obligation, under
Article II of the Constitution, to take care that the laws are
faithfully executed. And the laws mean, first and foremost, the
Constitution of the United States. That applies to everybody.
It applies to the President. And the President, no less than
anybody else, has to abide by the Constitution. And it also
means that the President must take care that the statutes of
the United States that are consistent with the Constitution are
complied with, and the President has an obligation to follow
those statutes as well.
Those are the important general principles, and the
application of them in a particular case depends on the facts
of the case and the arguments, and a judge needs to know the
arguments that are being made on both sides before reaching a
conclusion about the result. Those are the overriding
considerations.
Senator Feingold. I take that answer--and, obviously, you
may not be able to comment on it because of the possibility of
it coming before you--I take that to be a pretty serious answer
in terms of the President's responsibilities to uphold and make
sure that the laws are followed, including the criminal laws of
the United States. So given the fact that this interpretation
of the FISA law may well come before you at some point, I take
it, as you have indicated, that would not only be an initial
part of your analysis, but an awfully important analysis of
whether the President has the power to override these criminal
statutes. I certainly want to say for the record I do not
believe the President has the ability to do that in this case,
and in fact, I think, it would be almost impossible to
interpret the FISA law in any other way than it clearly states,
that it is the exclusive authority with regard to wiretapping
outside of the criminal law.
You said earlier today, Judge, in response to Senator
Leahy, that these types of gravely important constitutional
questions very often do not end up being resolved by the
judiciary, but rather by the other two branches. So what is the
proper role of the judiciary in resolving a dispute over the
President's power to disobey an express statutory prohibition?
Judge Alito. Well, the judiciary has the responsibility to
decide cases and controversies that are presented to the
judiciary, and that means that there has to be a concrete
dispute between parties, and the parties have to have standing
under the Constitution, and there's a whole doctrine that's
called the Political Question Doctrine, but it's a very
misleading term for people who are not lawyers. It doesn't mean
that a dispute has something to do with politics or anything
like that, it means that the dispute--in the sense in which
people usually use the term ``politics''--it means that it's a
kind of dispute that the Supreme Court has outlined as being
not a proper dispute to be resolved by the judiciary, involving
a constitutional issue that should be resolved often between
the branches of Government.
And I was talking earlier about some things that the
President does that are not reviewable, vetoes, pardons, et
cetera. There are things that Congress does that are not
reviewable, impeachment, et cetera. In Baker v. Carr, Justice
Brennan's opinion outlined a whole list of factors that inform
the analysis of whether something is a justiciable dispute, and
sometimes these disputes between the branches of Government are
held by the Supreme Court to fall into that category of being
disputes that can't properly be resolved by the courts.
Senator Feingold. Do you expect that this matter of the
warrantless searches is likely to be resolved with regard to
the initial political question doctrine, or do you think it
would be likely to be resolved on the merits with regard to the
statute and the Constitution?
Judge Alito. I don't think I could answer that without
providing sort of an advisory opinion about something that
could well come up. If this does come up in litigation, then
the courts have an obligation to decide whether it's a
justiciable dispute.
The Political Question Doctrine, this doctrine of issues
that are not justiciable, often involves conflicts between the
branches of the Government, and when a person is asserting the
person's individual rights are violated, that is the type of
case that is often resolved, I mean typically resolved by the
judiciary.
Senator Feingold. Judge, are we not going to be in kind of
a tough spot if we find out the Supreme Court cannot help us
figure out whether the FISA law is an exclusive authority or
not? Is that not going to be hard to resolve between the
Executive and the Congress?
Judge Alito. Well, Senator, when I was--when I referred--
when I said in reference to Senator Leahy's question that often
disputes between the two branches are resolved without
resorting to the courts, I don't think I was referring
specifically to this issue, and if I gave that impression, that
was a false impression.
I think I was--what I meant to say, and what I hope that I
did say, was that separation powers disputes in general
sometimes fall within this doctrine.
Senator Feingold. You noted a few times today that the
questions of the President's power in the wiretapping area and
other areas will likely come before the courts, including the
Supreme Court. You just did that. As I understand it, you have
prepared for these hearings over the past few months with a
variety of practice sessions. Some have called them moot courts
or murder boards. Was the question of the President's power in
time of war to take action contrary to a Federal statute ever
raised in any way during any of the practice sessions for these
hearings?
Judge Alito. I have had practice sessions on a great
variety of subjects, and I don't know whether that specific
issue was brought up. It may have been. But what I can tell
you--
Senator Feingold. You do not recall whether this issue or
the question of--
Judge Alito. Well, exactly--no, the issue of FISA certainly
has been something that I have studied, and FISA is not
something that has come before me as a judge.
Senator Feingold. But you do not recall whether or not this
was covered in the practice session?
Judge Alito. No, no. The specific question that you raised
about the conflict between the President's authority to say
that a statute enacted by Congress should not be followed, but
the general area of wiretapping and foreign intelligence
surveillance wiretapping--
Senator Feingold. And in fact, the recent events that have
led to this dispute--
Judge Alito. And the recent--
Senator Feingold [continuing]. And the possibility--
Judge Alito. And the recent events.
Senator Feingold [continuing]. That it may come before you,
right, Judge?
Judge Alito. That's correct, but--
Senator Feingold. OK. Who was present at these practice
sessions where these questions were discussed, and who gave you
feedback or suggestions or made any comment whatsoever on the
answers you gave?
Judge Alito. Nobody at these sessions or at any of the
sessions that I had has ever told me what to say in response to
any question, and--
Senator Feingold. I just asked--were there no comments or--
Judge Alito. The comments that I've received--
Senator Feingold. No advice?
Chairman Specter. Let him answer the question, Senator
Feingold.
Judge Alito. The advice that I've received has gone
generally to familiarizing me with the format of this hearing,
which is very different from the format of legal proceedings in
which I have participated either as a judge or previously when
I was arguing a legal issue as a lawyer. But nobody has told me
what to say. Everything that I have said is an expression of my
own ideas.
Senator Feingold. And I do not question that. Judge, I
asked you though whether anybody gave you any feedback or
suggestions or made any comment whatsoever on the answers you
gave in the practice session?
Judge Alito. In general, yes, they've given me feedback,
mostly about the form of the question--the form of the answers.
Senator Feingold. Have you received any other advice or
suggestions, directly or indirectly, from anyone in the
administration on how you should answer these questions?
Judge Alito. Not as to the substance of the question, no,
Senator.
Senator Feingold. Only as to the style?
Judge Alito. That's correct, as to the format, not as to
the--not as to what I should say I think about any of these
questions, absolutely not. I've been a judge for 15 years, and
I've made up my own mind during all that time, and--
Senator Feingold. And again, I am not suggesting that. I am
asking whether or not--
Judge Alito. No, I just want to make that clear.
Senator Feingold [continuing]. Somebody talked about the
possible legal bases that the President might assert with
regard to the ability to do this wiretapping outside of the
FISA statute. Was that kind of a discussion held?
Judge Alito. Nobody actually told me the bases that the
President was asserting. I found the letter that was released
last week or the week before by an Assistant Attorney General,
setting out arguments relating to this, on the Internet myself,
and printed it out, and I studied it to get some idea of some
of the issues that might be involved here. And I looked at some
other materials that legal scholars have put out on this issue,
but nobody in the administration actually has briefed me on
what the administration's position is with respect to this
issue.
Senator Feingold. Does it strike you as being inappropriate
for members of the Department of Justice or the White House
staff, who are currently defending the President's actions and
the NSA domestic spying program, to be giving you advice on how
you might handle questions about that topic in the hearing?
Judge Alito. It would be very inappropriate for them to
tell me what I should say, and I wouldn't have been receptive
to that sort of advice, and I did not receive that kind of
advice.
Senator Feingold. Thank you, Judge. I want to come back to
Mitchell v. Forsythe, in which you participated in the
Solicitor General's Office. As we have already heard, that case
considered the Government's argument that President Nixon's
Attorney General, John Mitchell, should be granted absolute
immunity for authorizing warrantless wiretaps, and you signed
the Government's brief, making that argument. The Supreme Court
rejected the claim of absolute immunity, noting that the
Attorney General, acting in the inherently secretive national
security context, has few built-in restraints. Justice White,
writing for the Court in Mitchell, said, ``The danger that high
Federal officials will disregard constitutional rights in their
zeal to protect national security is sufficiently real to
counsel against affording such officials an absolute
immunity.''
Now, that statement still has a lot of relevance today,
does it not?
Judge Alito. Yes, it does. Absolute immunity is quite
restricted under our legal system, but there are some high-
ranking officials in all three branches of the Government, who
do have absolute immunity just from civil damages, not from
criminal liability or from impeachment, or removal from office,
but for--or for injunctive relief, they can be ordered to
comply with the Constitution, but as far as civil damages are
concerned.
Senator Feingold. But when you were at the Solicitor
General's Office you wrote this memo about the case, saying,
``I do not question the Attorney General should have this
immunity for authorizing warrantless wiretap.'' Why did you not
question the Attorney General's absolute immunity?
Judge Alito. First of all, because it was the position that
our client, whom we represented in an individual capacity, and
it was his money that was at stake here, wanted to make. So we
had an obligation that was somewhat akin to the obligation of a
private attorney representing a client.
Second, it was an argument to which the Department was
committed. It has been made in Kissinger v. Halperin in the
Carter administration. It was repeated in Harlow v. Fitzgerald
in the Reagan administration. In Harlow v. Fitzgerald, the
Supreme Court, while rejecting the idea that cabinet officers
in general should have absolute immunity from civil damages,
had said something like, and I'm not going to be able to
provide an exact quote, but something like, but the situation
could well be different for people who are involved in
sensitive national security matters or foreign matters.
Senator Feingold. But you said in your memo that, quote,
``I do not question the Attorney General's absolute immunity.''
You did not say it is, quote, ``it is the position of our
office,'' or as you were just saying, this administration has
argued this in the past. You, in effect, injected yourself into
the statement. Clearly, you were expressing your personal
opinion on this legal issue, were you not?
Judge Alito. Senator, I actually don't think I was
expressing a personal opinion. I was saying that in my capacity
as the writer of this memo who was recommending that the
argument not be made, even though it was one that our client
wanted to have made, I wasn't disputing the general argument to
which the Department was committed. But I thought that we
should take a different approach, that we should just argue the
issue of appealability. But that was not the approach that was
taken.
Senator Feingold. Let us go on to the Solicitor General's
brief in the Mitchell case, which you signed. That brief argues
strongly for the need for absolute immunity, arguing that it is
far more important to give the Attorney General as much
latitude as possible in the national security context than to,
as the brief puts it, quote, ``defer the occasional malevolent
official,'' from violating the law. Now, I find this statement
particularly troubling today in light of the current
administration's warrantless wiretapping in the name of
national security. Do you agree with that statement in the
brief, that broad deference is warranted even if some Attorneys
General may abuse their power?
Judge Alito. I think the issue of the scope of the immunity
that the Attorney General has is now settled by Mitchell v.
Forsythe. That is the law. It was considered--the argument was
considered by the Supreme Court and they decided the question.
Judges have absolute immunity for their judicial decisions.
Members of Congress and their staff have absolute immunity for
things that they do that are integral to the legislative
process. The President has absolute immunity from civil damages
for the President's official acts. But absolute immunity is
used very sparingly because of just the considerations that
you're referring to. But the consideration on the other side is
that people who are involved in lots of things that make other
people angry--judges deciding cases, Members of Congress
passing legislation, Presidents doing all sorts of things--
would otherwise be subjected to the threat of so many political
reprisals that they would be driven from office. It's a policy
judgment that our law has made that some people should have
absolute immunity, but it's used very sparingly.
Senator Feingold. I find your comments interesting because,
of course, the argument is often fairly made that after 9/11,
we have to recognize the important role that our Executive
plays in protecting the American people. But I would also argue
that it is a particularly compelling time to make sure there
isn't undue deference, given the types of powers that the
Executive may seek to use in trying to fight this threat.
In your class notes from a seminar you gave at Pepperdine
Law School on ``Civil Liberties in Times of Emergency,'' you
repeatedly raised the question of whether the judiciary has the
capability to review certain types of determinations made by
the Executive branch in national security cases in particularly
factual issues, and we have recently seen an example of a court
evidently expressing its frustration at a national security
case when the facts presented to it by the Executive, which it
had accepted, apparently did not hold up. Of course, I am
talking about the Fourth Circuit's serious concern it hadn't
been told that Jose Padilla needed to be held militarily as an
enemy combatant because he had plotted to use a dirty bomb in
the United States, and then finding out that three-and-a-half
years later, the Justice Department wanted to transfer him to
law enforcement authorities to stand trial for entirely
different and much less serious crimes. In Padilla, the Fourth
Circuit was originally willing to defer to the Executive's
assertion that it needed to hold Padilla militarily. It was
quite upset, and justifiably, I think, to find out that it
might not have deserved such deference.
I am not going to ask you about that case because I know
that case is coming before the Supreme Court, but I do want you
to say something about the role of the judiciary in evaluating
the facts presented to it in national security cases by the
Executive branch. How does a court decide whether to rely on
the facts presented to it by the Executive in a national
security case?
Judge Alito. What I was doing in that talk at Pepperdine
was framing that question, and it's a lot easier to frame the
question and to ask students to think about it and give me
their reactions than it is to answer it. We've had examples of
instances in which the judiciary in the past has had to
confront this issue of reviewing factual presentations of the
Executive in times of national crisis and there have been
instances in which the judiciary has accepted--and I'm thinking
of the Japanese internment cases, has accepted, which were one
of the great constitutional tragedies that our country has
experienced--has accepted factual presentations by the
political--by the Executive branch that turned out not to be
true, and from my reading of what went on, were not believed to
be true by some high-ranking Executive officials at the time.
But there is the problem of judicial fact finding, which I
was talking about earlier, and the context of things that may
be taking place on the battlefield, for example, or things that
are taking place in wartime probably are more difficult for the
judiciary to evaluate than other factual questions. So that's
the dilemma and I can't say that I can provide a clear answer
to it.
Senator Feingold. I do appreciate your referencing the
Korematsu case and the problem there and how this is going to
become an even more serious issue.
I want to switch to something else, the matter of the
Vanguard case and the recusal. This has been characterized
today as a non-issue. One Senator said it is a joke, it is
ridiculous. Another one said it is an absurd, just plain
absurd. And another, the same Senator said it was a blatant
tactic to torpedo your nomination.
Well, Judge, I was the Senator that asked Judge Roberts
very searching questions about whether or not he should have
recused himself in the Hamdi case. I am sure he didn't enjoy
it. I didn't particularly enjoy asking the questions, but in
the end, I voted for him.
So let me just say to my colleagues, I reject this idea
that when we come here to do our job of examining a nominee,
that asking questions about an ethical issue is somehow a
political game or an attempt to torpedo a nomination. You know,
this idea of insulating yourselves and insulating the nominee
before we even ask questions about a subject really is not
conducive to the kind of process that this Chairman and this
Ranking Member have made possible on the first nomination and
this one, as well. So I think this is our job and I ask you
these questions in this spirit. I might add, although my time
is limited, that when you hear the actual facts of it, whatever
conclusions we draw, it is certainly not a trivial matter. It
is something that I think we ought to cover.
So let me begin by following up on Senator Kennedy's
question regarding the promise you made to the Committee. In
1990, in your Senate questionnaire at the time of your
nomination to the Third Circuit, you were asked how you would
handle potential conflicts of interest. You told the Committee
that you did not believe conflicts of interest relating to your
financial interests were likely to arise. Nevertheless, you
wrote, quote, ``I would, however, disqualify myself from any
cases involving the Vanguard Companies, the brokerage firm
Smith Barney, or the First Federal Savings and Loan of
Rochester, New York.'' You also wrote that you would disqualify
yourself from any case involving your sister's law firm and
from any case in which you participated or that was under your
supervision in the United States Attorney's Office. Now,
whether or not such recusals were required under the Federal
recusal law, your statement to the Committee was clear,
unambiguous, and not time limited. Now, I think for that reason
alone, it is more than legitimate to ask some questions in
front of this Committee about this.
This morning, Senator Hatch read from a letter from the
ABA, apparently received yesterday, although we did not see it
until today. That letter talked about what you told the ABA
when you asked about Vanguard and the other ethics issues. You
also answered a number of questions from Senator Hatch about
the case.
But your responses to both the ABA, as far as we can tell
from the letter, and Senator Hatch did not say anything at all
about your promise to this Committee. Instead, you responded by
saying that you didn't notice the recusal issue because you did
not get so-called clearance sheets in this case because it was
a pro se case and that you didn't, quote, ``focus'' on the
issue of recusal. You also didn't mention something that the
clerk of your court told us in a letter, that all judges have
standing recusal lists that all cases--all cases--both pro se
cases and cases where the parties are represented by counsel
are checked against before they are sent to judges.
So my first question is this. After you were sworn in as
judge, did you notify the court of your commitments to the
Senate and request that the Vanguard Companies, Smith Barney,
and First Federal Savings and Loan be included on your standing
list of parties whose involvement in a case would require your
recusal?
Judge Alito. Senator, I don't have a copy of the initial
computer list, so I can't answer that question. At some point,
Vanguard--the computer lists that are available from, I think,
1992 and 1993 do not have Vanguard on it and I don't know why
that is so--
Senator Feingold. So you don't recall whether you notified
them or not?
Judge Alito. I do not know.
Senator Feingold. Judge, we know you notified the court in
1990 that the U.S. Attorney's Office and your sister's law firm
should be on your standing recusal list because you recused
yourself from a number of such cases in the first several years
you were on the bench. And we also finally received additional
documents just yesterday from the court. These documents show
that the Vanguard Companies and the other financial entities
you listed in 1990 were not on your standing recusal list,
which you approved in 1993, 1994, 1995, or 1996. Do you
remember removing them from your standing recusal list, or is
it fair to assume--or is it your belief that they were never
put on your recusal list?
Judge Alito. Senator, I don't know. I don't know whether
I--whether they were removed. I don't think I ever told the
clerk's office, take them off. It may be that at some point, I
submitted a new list and they were not on the list. I do think
it's important to keep in mind that this list is just an aid
for the judge. This is not a comprehensive list of everything
that will cause a judge to recuse himself.
Senator Feingold. I understand. I just want to get the
facts down. So to be clear on the facts, there is no evidence
that you requested that Vanguard appear on your standing
recusal list before 2003 when you informed the clerk that
Vanguard and apparently also Smith Barney should be added, and
you don't have any independent recollection of adding them to
the list before then, either--
Judge Alito. That's correct.
Senator Feingold [continuing]. Isn't it?
Judge Alito. That's correct.
Senator Feingold. Now, you explained to the ABA that the
problem in these cases was that the conflict screen system was
not working in these cases and you told Senator Kennedy and
Senator Hatch this morning that there were some oversights in
this case, and you wrote in a November 10 letter to Senator
Specter, due to an oversight, it did not occur to you that
Vanguard's status might call for your recusal. But it seems
that the problem was not that the screening program was not
working or that there was a computer glitch, as you and the
White House originally suggested, but either that Vanguard was
not on your recusal list and you didn't remember your promise,
or that you did not recognize that Vanguard was a party in the
case. Isn't that a fair characterization?
Judge Alito. Well, there was an oversight and the oversight
was on my part in not focusing on the issue of recusal when I
first received the case.
Senator Feingold. So there wasn't--so the problem really--
you can admit now, can't you, that this was not a computer
glitch or a failure of the screening system. You are really
saying something very different at this point.
Judge Alito. I am not saying something different as to the
screening system. The screening system was exactly what I
described this morning, and I described that to the ABA,
involving--
Senator Feingold. But you don't think it was a computer
glitch anymore, do you?
Judge Alito. It was not a complete computer glitch, and if
I could just explain, the origin of that was that when I was
down here shortly after the President announced his intention
to nominate me, I started to be--I started to receive questions
about this Vanguard issue and I was receiving information from
our clerk's office, and that based on the information that I
received, it was my impression that there had been a computer
glitch and that was the origin of that statement and that
information that constitutional--
Senator Feingold. Let me ask you this in my last few
seconds. When you wrote to Judge Scirica indicating that you
would recuse yourself from the Monga v. Ottenburg case, why did
you feel the need to argue that you weren't, in fact, required
to do so? Why not just admit you made a mistake, agree to
recuse, and move on? Why didn't you just do that when the issue
was raised here instead of coming up with these different
explanations that in some cases, I think, have become
unconvincing?
Judge Alito. Well, Senator, when the recusal motion came
in, I was disturbed by it and I wanted to see what the Code of
Conduct exactly required in this context. Twelve years had gone
by and no Vanguard case had come up and I hadn't had an
occasion to look at this issue. And when I looked at it, it--
the recusal motion was very harsh and it accused me of
unethical conduct and I took it seriously and I wanted to see
what the Code required, and I researched it and it was my
conclusion that I was not required by the Code to recuse, but
then I went on and said, but I still don't want to participate
in this case and I would like to have the initial decision
vacated and make sure that Ms. Maharaj had an entirely new
appeal, and that's what I asked for and that's what was done.
Senator Feingold. Thank you, Judge.
Senator Hatch. Mr. Chairman?
Chairman Specter. Senator Hatch?
Senator Hatch. On this particular issue, could I take just
2 minutes out of my next round?
Chairman Specter. If you want to comment, you may, and
Senator Feingold can have an opportunity to respond.
Senator Hatch. Sure. On your form that you filled out, the
question was, explain how you will resolve any potential
conflict of interest, including the procedure you will follow
in determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts of interest during your initial
service in the position to which you have been nominated. Now,
this case arose 12 years later, didn't it?
Judge Alito. Yes, it did, Senator.
Senator Hatch. That is hardly your initial service. To be
held to that type of a standard, especially in a case that
every ethics professor I know of says you didn't do anything
wrong in, seems to me is going a little bit beyond the pale
here and it is overblown. Frankly, I think you have got to read
the whole thing. You are a good lawyer and you have agreed to
do it, but it was during your initial service. Now, I guess you
could interpret initial service to be a year or two or 3 years,
but 12 years? I don't think so.
Senator Feingold. Mr. Chairman?
Chairman Specter. Senator Feingold, do you care to--
Senator Feingold. Yes. I mean, the fact is the nominee
continues to have the holdings in Vanguard. They have
appreciated in value. The time hasn't changed that. I think the
Judge here was at least trying to suggest there might have been
some mistake made here and instead we are getting sort of
after-the-fact justifications that put some kind of a time
limit on the promise he made to this Committee, and there was
no time limit on the promise that was made to the Committee.
Senator Hatch. I still have 30 seconds left. Judge, No. 1,
you have researched it and you didn't have to recuse yourself.
You concluded that?
Judge Alito. Yes, I did.
Senator Hatch. No. 2, these ethics professors have
concluded that, right?
Judge Alito. That is right.
Senator Hatch. No. 3, you have tried to comport with the
highest standards of ethics during your whole 15 years on the
bench, right?
Judge Alito. I have tried to do that and to go beyond
what--
Senator Hatch. No. 4, I believe we will have judges from
that court who will say that you have.
Chairman Specter. Senator Feingold?
Senator Feingold. Mr. Chairman, I am curious if this isn't
a situation where he felt the need to recuse himself why he
wouldn't have put Vanguard on the list as something he should
recuse himself from--
Senator Hatch. Because he was mistaken, that is why.
Chairman Specter. We are going to move on now. I think that
this slight exchange is permissible as an exception to our
general rules. It livens up the afternoon.
[Laughter.]
Senator Hatch. I want my 2 minutes back.
Chairman Specter. Anything at about 5:30 in the afternoon
is welcome.
[Laughter.]
Chairman Specter. Senator Graham?
Senator Graham. That was an interesting exchange. I guess
there is no rule against beating a dead horse or we would all
have quit a long time ago, so--
[Laughter.]
Senator Graham [continuing]. So in the next 30 minutes, I
am going to ask you the same questions you have been asked for
a whole day, and I hope you will understand if any of us come
before a court and we can't remember Abramoff, you will tend to
believe us.
[Laughter.]
Senator Graham. Now I know why they give you a lifetime
appointment for doing this. I was skeptical before, but I think
once is enough in a lifetime.
For what it is worth, I think you have done a great job.
You have been very forthcoming. You have seldom used--I may
have to decide that you have answered a lot of questions and I
particularly enjoyed Senator Feingold's questions about
Executive power and I will pick up on that.
No. 1, from a personal point of view, do you believe the
attacks on 9/11 against our Nation were a crime or an act of
war?
Judge Alito. That is a hard question to answer and--
Senator Graham. Good.
Judge Alito. That is a way of buying 30 seconds while I
think about the answer. Senator, I think that what I think
personally about this is really not something that would be--
that would inform anything that I would have to do as a judge.
Senator Graham. Well, Judge, I guess I disagree because I
think we are at war and the law of armed conflict in a wartime
environment is different than dealing with domestic criminal
enterprises. Do you agree with that?
Judge Alito. It certainly is.
Senator Graham. We have laws on the books that protect us,
the Fourth Amendment included, from our own law enforcement
agencies coming against our own citizens. But we also have laws
on the books during a time of war to protect or country from
being infiltrated by foreign powers and bodies who wish to do
harm to us. That is a totally different legal concept. Is that
correct?
Judge Alito. I am reluctant to get into this because I
think that things like act of war can well have particular
legal meanings in particular contexts and, you know, under the
Constitution.
Senator Graham. Do you doubt that our Nation has been in an
armed conflict with terrorist organizations since 9/11, that we
have been in an undeclared state of war?
Judge Alito. In a lay sense, certainly we have been in a
conflict with terrorist organizations. I am just concerned that
in the law all these phrases can have particular meanings that
are defined by the cases.
Senator Graham. That is very important, and let's have a
continuing legal education seminar here about the law of armed
conflict in the Hamdi case. The Hamdi case is precedent. Is
that correct? It is a decision of the Supreme Court.
Judge Alito. It certainly is, yes.
Senator Graham. And it tells us at least two to three
things. No. 1, it tells us something that I find reassuring
that the Bill of Rights, the Constitution, survive even in a
time of war.
Judge Alito. That is certainly true.
Senator Graham. So there is a holding in that case that I
want to associate myself with, and I think Senator Feingold
does, that even during a time of war when your values are
threatened by an enemy who does not adhere to those values,
they will not be threatened by your Government unless there is
a good reason. Do you agree with that?
Judge Alito. Senator, I agree that the Constitution was
meant to deal with all of the contingencies that our country
was going to face. And I think the Framers hoped that we would
not get involved in many wars, but they were students of
history and I am sure they realized that there would be wars.
They provided for war powers for the President and for
Congress, and the structure is meant to apply both in peace and
in war.
Senator Graham. And you said in your previous testimony
that no political figure in this country is above the law, even
in a time of war.
Judge Alito. That is correct.
Senator Graham. There is another aspect of the Hamdi case
that no one has picked up upon, but I will read to you. ``In
light of these principles, it is of no moment that the
authorization to use military force does not use specific
language of detention, because detention to prevent a
combatant's return to the battle field is a fundamental
incident of waging war. In permitting the use of necessary and
appropriate force, Congress has clearly and unmistakably
authorized detention in the narrow circumstances considered
here, and those circumstances were a person alleged by the
Executive branch to be an enemy combatant.''
And one of the principles we found from the Hamdi case is
that because we are, in my opinion, at war and Congress has
authorized the President to use force against our enemies, the
Executive branch, according to the Hamdi case, inherent to his
power of being Commander in Chief, can detain people who have
been caught on the battle field.
Does that make sense to you? Do you agree that is the
principle of the Hamdi case?
Judge Alito. That is the principle of the Hamdi case.
Senator Graham. And it makes perfect sense because if we
catch someone in Afghanistan or Iraq or any other place in the
world who is committing acts of violence against our troops or
our forces, or we catch people here in the United States who
have infiltrated our country for the purpose of sabotaging our
Nation, there is no requirement in the law to catch and release
these people, is there?
Judge Alito. Well, Hamdi speaks to the situation of an
individual who was caught on the battlefield.
Senator Graham. In the history of our Nation, when we
captured German and Japanese prisoners, was there ever a legal
requirement anybody advanced that after a specific period of
time you have to let them go?
Judge Alito. It is my understanding that the prisoners of
war who were taken in World War II were held until the conflict
was over.
Senator Graham. It would be an absurd conclusion for a
court or anyone else to tell the executive branch that if you
caught somebody legitimately engaged in hostile activities
against the United States that you have to let them go and go
back and fight us again. That makes no sense, does it?
Judge Alito. Well, I explained what my understanding is
about how this matter of holding prisoners was handled in prior
wars. This issue was addressed in Hamdi, in what was discussed
in Hamdi in the context of--
Senator Graham. In the Padilla case, they held an American
citizen who was engaged in hostile activities against the
United States allegedly as an enemy combatant and the Fourth
Circuit said the President, during a time of hostility, has the
ability to do that.
Do you agree that that is a part of our jurisprudence?
Judge Alito. That was the holding in Padilla.
Senator Graham. Yes.
Judge Alito. Yes, that was the holding of the lower court
in--of Padilla, yes.
Senator Graham. Now, the point I am trying to make is that
when you are engaged in hostilities, there are some things that
we assume the President will do. If we don't kill the enemy, we
capture the enemy. The President, as the Commander in Chief,
will make sure they don't go back to the battle.
No. 2, if we catch someone and there is a question to their
status, whether or not you are prisoner of war under the Geneva
Conventions, are you an enemy combatant, who traditionally in
our constitutional democracy determines whether or not--the
status of a person engaged in hostilities?
Judge Alito. Well, Padilla--I am sorry--Hamdi said that a
person who is being detained, an unlawful person who is
asserted to be an unlawful combatant and who is being detained,
has the right--has due process rights. And the issue of the
type of tribunal--and they explained to some degree how that
would be handled, but the identity of the particular tribunal
that would be required to adjudicate that was not an issue that
was decided in Hamdi or any of the other cases.
Senator Graham. Can you show me an example in American
jurisprudence where the question of status, whether a person
was a lawful combatant or an unlawful combatant, was decided by
a court and not the military?
Judge Alito. I can't think of an example. I can't say that
I am able to survey the whole history of this issue, but I
can't think of one.
Senator Graham. Can you show me a case in American
jurisprudence where an enemy prisoner held by our military was
allowed to bring a lawsuit against our own military regarding
their detention?
Judge Alito. I am not aware of such a case.
Senator Graham. Is there a constitutional right for a
foreign non-citizen enemy prisoner to have access to our courts
to sue regarding their condition of confinement under our
Constitution?
Judge Alito. Well, I am not aware of a precedent that
addresses the issue.
Senator Graham. Do you know of any case where an enemy
prisoner of war brought a habeas petition in World War II
objecting to their confinement to our Federal judiciary?
Judge Alito. There may have been a lower court case. I am
trying to remember the exact status of the individual and it
was--
Senator Graham. Well, let me help you. There were two
cases. One of them involved six saboteurs, the In Re Quirin--
Judge Alito. Quirin case, yes.
Senator Graham. Would you agree with me that that case
stood for the proposition that in a time of war or declared
hostilities, an illegal combatant, even though they may be an
American citizen--the proper forum for them to be tried in is a
military tribunal and they are not entitled to a jury trial as
an American citizen in a non-wartime environment?
Judge Alito. Well, those were a number of German saboteurs
who landed by submarine in the United States and they were
taken into custody and they were tried before a military
tribunal and the case went up to the Supreme Court. The Supreme
Court sustained their being tried before a military tribunal.
At least one of them claimed to be an American citizen, and
most of them--I think all but one or two actually were
executed.
Senator Graham. And our Supreme Court said that is the
proper forum during a wartime environment to try people who are
engaged in illegal combat activities against our country. Is
that correct?
Judge Alito. Well, they sustained what was done under the
circumstances that I described.
Senator Graham. Well, that would be a precedent, then,
wouldn't it?
Judge Alito. It is the precedent, yes.
Senator Graham. OK. There was a case involving six German
soldiers captured in Japan and transferred to Germany, and they
brought a habeas petition to be released in the Eisen--I can't
remember the--
Judge Alito. Eisentrager.
Senator Graham. Well, you know it. Tell me what the court
decided there.
Judge Alito. Well, they were--as I recall, they were
Germans who were found in China assisting the Japanese--
Senator Graham. China and not Japan. You are right.
Judge Alito [continuing]. Assisting the Japanese after the
termination of the war with Germany, and they were unsuccessful
in their habeas petition. And that was interpreted prior to the
Supreme Court's decisions a couple of years ago to mean that
there was a lack of habeas jurisdiction over them because they
were being held in territory that was not U.S. territory.
Senator Graham. For those who are watching who are not
lawyers, generally speaking in all of the wars that we have
been involved in, we don't let the people trying to kill us sue
us, right? And we're not going to let them go at an arbitrary
time period if we think they are still dangerous because we
don't want to go have to shoot at them again or let them shoot
at us again.
Is that a good summary of the law of armed conflict?
Judge Alito. The precedent--I don't know whether I would
put it quite that broadly, Senator.
[Laughter.]
Judge Alito. The precedent that you--Johnson v.
Eisentrager, of course, has been substantially modified, if not
overruled. Ex Parte Quirin, of course, is still a precedent.
There was a lower court precedent involving someone who fought
with the Italian Army and I can't remember the exact name of
it, and that was the case that I thought you were referring to
when you first framed the question. But those are the
precedents in the area.
Then if you go back to the Civil War, there is Ex Parte
Milligan and a few others. Now, in Hamdi--
Senator Graham. We don't have to go back that far.
Judge Alito. Well, in this area, I think it is actually
instructive to do it. But in Hamdi, the Court addressed this
question of how long the detention should take place and they
said--because they were responding to the argument that this
situation is not like the wars of the past which had a more or
less fixed--it was not anticipated that they would go on for a
generation and they said we will get to that if it develops
that way.
Senator Graham. Who is better able to determine if an enemy
combatant, properly held, has ongoing intelligence value to our
country? Is it the military or a judge?
Judge Alito. On intelligence matters, I would think that is
an area where the judiciary doesn't have expertise. But we do
get into this issue I was discussing with Senator Feingold
about the degree to which--the balance between the judiciary's
performing its function in cases involving individual rights
and its desire not to intrude into areas where it lacks
expertise particularly in times of war and national crisis.
Senator Graham. So having said that, if we have a decision
to make as a country when to let someone go who is an enemy
combatant, I guess we have got two choices: we can have court
cases, or we can allow the military to make a determination if
that person still presents a threat to the United States, and
whether or not that person has an intelligence value by further
confinement.
Do you feel the courts possess the capabilities and the
competence to make those two decisions better than the
military?
Judge Alito. The courts do not have expertise in foreign
affairs or in military affairs, and they certainly should
recognize that. And that is one powerful consideration in
addressing legal issues that may come up in this context. But
there is the other powerful consideration that it is the
responsibility of the courts to protect individual rights in
cases that are properly before the Court, cases where they have
jurisdiction in one way or another, cases that are fit for
judicial resolution.
Senator Graham. I totally understand that, but our courts
have not by tradition gotten involved in running military jails
during time of war. I can't think of one time where a prisoner
of war housed in the United States during World War II, a
German Nazi or a Japanese prisoner was able to go and sue our
own troops about their confinement. I think there is a reason
there is none of those cases. It would lead to chaos.
Now, when it comes to treating detainees and how to treat
them, I think the Congress has a big, big role to play, and I
think that the courts have a big role to play. Are you familiar
with the Geneva Convention?
Judge Alito. I have some familiarity with it.
Senator Graham. Do you believe it has been good for our
country to be a signatory to that convention?
Judge Alito. I think it has, but it's not really my area of
authority. That's Congress's area of authority.
Senator Graham. Well, just as an American citizen, are you
proud of the fact that your country has signed up to the Geneva
Convention and that we have laid out a system of how we treat
people who fall into our hands and how we will engage in war?
Judge Alito. I think the Geneva Convention--and I'm not an
expert on the Geneva Conventions, but I think they express some
very deep values of the American people, and we have been a
signatory of them for some time, and I think that--
Senator Graham. Now, let's go back to the legal application
of the Geneva Convention. If someone was captured by an
American force and detained, either at home or abroad, would
the Geneva Convention give that detainee a private cause of
action against the U.S. Government?
Judge Alito. Well, that's an issue, I believe, in the
Hamdan case, which is an actual case that's before the Supreme
Court. It goes to the question of whether a treaty is self-
executing or not. Some treaties are self-executing.
Senator Graham. Has there ever been an occasion in all the
wars we have fought where the Geneva Convention was involved
whether the courts treated the Geneva Convention as a private
cause of action to bring a lawsuit against our own troops?
Judge Alito. I'm not familiar with such a case, but I can't
say whether there might be some case or not.
Senator Graham. Now, when it comes to what authority the
Executive has during a time of war, we know the Supreme Court
has said it is implicit from the force resolution that you can
detain people captured on the battlefield. Hamdi stands for
that proposition. Is that correct?
Judge Alito. That's what was involved in Hamdi.
Senator Graham. The problem that Senator Feingold has and I
have and some of the rest of us have is does that force
resolution--does it have the legal effect of creating the
exception to the FISA court? And I know that may come before
you, but let's talk about generally how the law works.
You say that the President has to follow every statute on
the books unless the statute allows an exception for the
President. Is that a fair statement? Just being President, you
cannot set aside the law.
Judge Alito. The President has to follow the law, and that
means the Constitution and the laws that are enacted consistent
with the Constitution.
Senator Graham. There is a statute that we have on the
books against torture. Are you familiar with that statute?
Judge Alito. The Convention Against Torture, well, the
statutes implementing the Convention Against Torture.
Senator Graham. And the statute provides the death penalty
for somebody who violates the conventions as a possible
punishment.
Judge Alito. That's right. If death results, the death
penalty is available.
Senator Graham. So this idea that Senator McCain somehow
banned torture is not quite right. The Convention on Torture
and the statute that we have implementing that convention were
on the books long before this year. Is that correct?
Judge Alito. Yes, they were.
Senator Graham. Do you believe that any President, because
we are at war, could say, ``The statute on torture gets in the
way of my ability to defend the United States, therefore, I
don't have to comply with it''?
Judge Alito. The President has to comply with the
Constitution and the laws of the United States that are enacted
consistent with the Constitution. That is the principle. The
President is not above the Constitution and the laws.
Now, there are issues about the interpretation of the laws
and the interpretation of the Constitution, but--
Senator Graham. Are you a strict constructionist?
Judge Alito. I think it depends on what you mean by that
phrase, and if you--
Senator Graham. Well, let's forget that. We will never get
to the end of that.
[Laughter.]
Senator Graham. Have you heard the term used?
Judge Alito. I have heard the term used.
Senator Graham. Is it fair to say that when it is used by
politicians, people like me, we are trying to tell the public
we want a judge who looks at things very narrowly, that does
not make a bunch of stuff up? Is that a fair understanding of
what a strict constructionist may be in the political world?
Judge Alito. Well, if a strict constructionist is a judge
who doesn't make things up, then I'm a strict constructionist.
Senator Graham. There you go.
[Laughter.]
Judge Alito. I agree with that, Senator.
Senator Graham. Now, if there is a force resolution that
Congress passes to allow any President to engage in military
activity against someone trying to do us harm, and the force
resolution says the President is authorized to use all
necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks on September 11,
2001, or just make it generic, if someone argued that that
declaration by Congress was a blanket exemption to the warrant
requirement under FISA, would that be a product of strict
constructionist legal reasoning?
Judge Alito. I think that a strict constructionist, as you
understand it, would engage in a certain process in evaluating
that question, and a strict constructionist, a person who
interprets the law--and that's how I would put it. A person who
interprets the law would look at the language of the
authorization for the use of military force and legislative
history that was informative, maybe past practices--were there
prior enactments that are analogous to that? What was the
understanding of those? And a host of other considerations that
might go into the interpretive process.
Senator Graham. I guess what I am saying, Judge, is I can
understand when the Court ruled that the President has it
within his authority to detain people on the battlefield under
this force resolution, that makes sense. I understand why the
President believes he has the ability to surveil the enemy at a
time of war. And the idea that our President or this
administration took the law in their own hands and ignored
precedent of other Presidents or case law and just tried to
make a power grab I don't agree with. But this is really not
about you, so you don't have to listen. I am talking to other
people right now.
[Laughter.]
Senator Graham. The point I am trying to make is what
Justice Jackson made, that when it comes to issues like this,
when we surveil our enemy and we cross our own borders and we
have information about our own people, we need, in my opinion,
Judge, to have the President at the strongest. And that would
be when Congress through collaboration with the President comes
up with a method of dealing with that situation, and that it
could be very dangerous in the long run if we overinterpret war
resolutions, because I have got a problem with that. And I
believe that if we don't watch it and we overinterpret these
resolutions, we will have a chilling effect for the next
President. The next President who wants to use force to protect
us in a justifiable manner may be less likely to get that
resolution approved if we go too far.
And, Judge, you are likely to rule on these issues, and my
hope is before you rule that we all sit down between the
Executive and the legislative and we talk about this. Because
as you said before, our Nation, not only our legal system, is
strongest when we work together. Executive power, the
Constitution allows the President to nominate judges. If
Congress tried to change that by statute and say that we would
like to pick the judges, what would happen, hypothetically?
Judge Alito. I have a certain self-interest in the answer
to that question.
Senator Graham. I thought you might.
[Laughter.]
Judge Alito. I think that--
Senator Graham. Clearly--clearly--the statute would fall to
the Constitution. A veto is not reviewable by courts because
that is basically a political decision. Under the Constitution,
what is the vote requirement to get confirmed to the Supreme
Court?
Judge Alito. It is a majority.
Senator Graham. Hypothetically speaking, what if the Senate
passed a statute or had a rule that said you cannot get a vote
to be on the Supreme Court unless you get 60 votes? How does
that sit with you?
Judge Alito. Speaking in my personal capacity or in my
judicial capacity?
[Laughter.]
Senator Graham. Your judicial capacity.
Judge Alito. Senator, I just don't think I should answer
questions like--constitutional questions like that. I need to
know--
Senator Graham. What if the Senate said during an
impeachment that we don't want a two-thirds vote of the Senate,
we want a majority vote, would the Senate's action fall to the
Constitution?
Judge Alito. Well, when--there are certain questions that
seem perfectly clear, and I guess there is no harm in
answering--
Senator Graham. Is there any doubt in your mind the
Constitution requires a majority vote to be on the Supreme
Court or any other Federal judicial office?
Judge Alito. You know what? I remember this phrase from law
school--
Senator Graham. Is that a super duper precedent?
Judge Alito. I think it's what we call in law school ``the
slippery slope,'' and if you start answering the easy
questions, you're going to be sliding down the ski run and into
the hard questions, and that's what--
Senator Graham. Well, then--
Judge Alito.--I'm not too happy to do.
Senator Graham. That is what I tried to get you to do, and
I am glad you didn't do it.
The bottom line to this exercise is you have got a job, I
have got a job, and what disturbs me a bit is that we are
beginning to hold the lawyer responsible for the client. And in
my remaining time here, what damage could be done to the legal
profession or the judiciary if people in my profession start
holding your client's position against the advocate?
Judge Alito. Well, I think it has been traditionally
recognized that lawyers have an obligation to their clients.
That's how our legal system works. Some lawyers have private
clients. Some lawyers work for Government agencies, and the
lawyer-client relationship there is not exactly the same. But,
still, there is a lawyer-client relationship. And I think our
whole system is based on the idea that justice is best served--
Senator Graham. If you were an Attorney General
representing a State that passed a ban on partial-birth
abortion, would it be fair to that Attorney General if they
came before this Committee to hold that against them if you
disagreed with them on the subject matter?
Judge Alito. I think that Attorneys General--I can speak to
the issue of the Attorney General of the United States because
I know there's a statute and there's an understanding about
what the Attorney General of the United States will do when an
Act of Congress is called into question, and the obligation of
the Attorney General is to defend the constitutionality of the
Act of Congress unless no reasonable--
Senator Graham. A lawyer's obligation is to defend their
client's interest. Is that an accurate statement of what a
lawyer is supposed to do?
Judge Alito. It certainly is, yes.
Senator Graham. No matter whether that client is popular or
not or the position is popular or not. Is that correct?
Judge Alito. Consistent with ethical obligations and
professional responsibility, yes, indeed.
Senator Graham. What has this process been like for you and
your family? And in a short period of time, could you tell us
how to improve it?
Judge Alito. Well, it's been a combination of--at times
it's been a thrill and at times it's been extremely
disorienting. I spent the last 15 years as a judge on the court
of appeals, and you probably could not think of a more
cloistered existence than a judge on the court of appeals. Most
of the time nobody other than the parties pays attention to
what we do. When an article is written in the paper about one
of our decisions, it's ``a Federal appeals court in
Philadelphia'' or in whatever city. And this has been a strange
process for me. I made some reference to that yesterday, but I
understand the reason for it. And I am reluctant in my current
capacity as a nominee to offer any suggestions about the
process. I think that's--you're carrying out your
responsibility. I spoke about the fact that different people
under the Constitution have different obligations, and you have
the advice and consent function, Congress, the Senate does. And
I think it's for the Senate to decide what it should do in this
area.
Chairman Specter. Thank you, Senator Graham.
Senator Schumer?
Senator Schumer. Thank you, Senator Specter. And I want to
thank you, Judge Alito. It has been a long day.
Judge Alito, in 1985 you wrote that the Constitution--these
are your words--does not protect a right to an abortion. And
you said to Senator Specter a long time ago, I think it was
about 9:30 this morning, 9:45, that those words accurately
reflected your view at the time.
Now let me ask you, do they accurately reflect your view
today? Do you stand by that statement? Do you disavow it? Do
you embrace it? It is OK if you distance yourself from it and
it is fine if you embrace it. We just want to know your view.
Judge Alito. Senator, it was an accurate statement of my
views at the time. That was in 1985, and I made it from my
vantage point as an attorney in the Solicitor General's Office,
but it was an expression of what I thought at that time. If the
issue were to come before me as a judge, if I am confirmed and
if this issue were to come up, the first question that would
have to be addressed is the question of stare decisis, which I
have discussed earlier, and it's a very important doctrine and
that was the starting point and the ending point of the joint
opinion in Casey. And then if I were to get beyond that, if a
court were to get beyond the issue of stare decisis, then I
would have to go through the whole judicial decisionmaking
process before reaching a conclusion.
Senator Schumer. But sir, I am not asking you about stare
decisis. I am not asking you about cases. I am asking you about
this, the United States Constitution. As far as I know, it is
the same as it was in 1985 with the exception of the 27th
Amendment, which has nothing to do with what we are talking
about. Regardless of case law, in 1985, you stated--you stated
it proudly, unequivocally, without exception--that the
Constitution does not protect a right to an abortion. Do you
believe that now?
Judge Alito. Senator--
Senator Schumer. I am not asking about case law. I am not
asking about stare decisis. I am asking your view about this
document and whether what you stated in 1985 you believe today,
you have changed your view, you have distanced your view. You
can give me a direct answer. It doesn't matter right now which
way you answer, but I think it is important that you answer
that question.
Judge Alito. The answer to the question is that I would
address that issue in accordance with the judicial process as I
understand it and as I have practiced it. That is the only way
I can answer that question.
Senator Schumer. Sir, I am not asking for the process.
Obviously, you would use a judicial mindframe. You have been a
judge for 15 years. I am asking you, you stated what you
believed the Constitution contained. You didn't say the
Constitution as interpreted by this or that. You didn't say the
Constitution with this exception or that exception. It was a
statement you made directly. You made it proudly. You said you
are particularly proud of that personal belief that you had. Do
you still believe it?
Judge Alito. And Senator, I would make up my mind on that
question if I got to it, if I got past the issue of stare
decisis, after going through the whole process that I have
described. I would need to know the case that was before me and
I would have to consider the arguments, and they might be
different arguments from the arguments that were available in
1985--
Senator Schumer. But sir, I am not asking you about case
law. Now, maybe you read a case and it changed your view of the
Constitution. I am asking you, and not about the process you
would use. I am asking you about your view of the Constitution,
because as we all know, and we are going to talk about stare
decisis in a few minutes, that if somebody believes, a judge,
especially a Supreme Court Justice, that something is
unconstitutional, even though stare decisis is on the books,
governs the way you are and there is precedent on the books for
decades, it is still important to know your view of what the
Constitution contains.
And let me just say, a few hours ago, in the same memo, I
can't remember who asked the question, but you said you backed
off one of the statements you had written. You said it was
inapt, which taught me something. I didn't know that there was
a word that was inapt, but you said that it was inapt to have
written that the elected branches are supreme. So you discussed
that, your view on that issue, without reference to case law
because there was no reference to case law when you wrote it.
There was no reference to case law when you wrote this.
Can you tell us your view, just one more time, your view
about the Constitution not protecting the right to an abortion,
which you have talked about before and you said you personally
proudly held that view. Can you?
Judge Alito. The question about the supremacy--the
statement about the supremacy of the elected branches of
government went to my understanding of the constitutional
structure of our country, and so certainly that's a subject
that it is proper for me to talk about. But the only way--you
are asking me how I would decide an issue--
Senator Schumer. No, I am not. I am asking you what you
believe is in the Constitution.
Judge Alito. You are asking me my view of a question that--
Senator Schumer. I am not asking about a question. I am
asking about the Constitution, in all due respect, and
something you wrote about before--
Judge Alito. The Constitution contains the Due Process
Clause of the Fifth Amendment and the 14th Amendment. It
provides protection for liberty. It provides substantive
protection. And the Supreme Court has told us what the standard
is for determining whether something falls within the scope of
the protection--
Senator Schumer. Does the Constitution protect the right to
free speech?
Judge Alito. Certainly, it does. That is in the First
Amendment.
Senator Schumer. So why can't you answer the question of
does the Constitution protect the right to an abortion the same
way, without talking about stare decisis, without talking about
cases, et cetera?
Judge Alito. Because answering the question of whether the
Constitution provides a right to free speech is simply
responding to whether there is language in the First Amendment
that says that the freedom of speech and freedom of the press
can't be abridged. Asking about the issue of abortion has to do
with the interpretation of certain provisions of the
Constitution.
Senator Schumer. Well, OK. I know you are not going to
answer the question. I didn't expect really that you would,
although I think it would be important that you would. I think
it is part of your obligation to us that you do, particularly
that you stated it once before. So any idea that you are
approaching this totally fresh without any inclination or bias
goes by the wayside.
But I do have to tell you, Judge, your refusal, I find
troubling. It is sort of as if I asked a friend of mine 20
years ago, if a friend of mine 20 years ago said to me, he
said, ``You know, I really can't stand my mother-in-law,'' and
a few weeks ago I saw him and I said, ``Do you still hate your
mother-in-law?'' He said, ``Well, I'm now married to her
daughter for 21 years, not 1 year.'' I said, ``No, no, no. Do
you still hate your mother-in-law?'' And he said, ``Mmm, I
can't really comment.'' What do you think I would think?
Judge Alito. Senator, I think--
Senator Schumer. Let me just move on. You have a very nice
mother-in-law. I see her right here and she seems like a very
nice person.
[Laughter.]
Senator Schumer. OK.
Judge Alito. I have not changed my opinion of my mother-in-
law. That's a question--
Senator Schumer. I am glad you haven't. She seems nice.
Judge Alito.--I can answer that question.
Senator Schumer. Let me go now to stare decisis, because
what you have said is you start out with stare decisis,
although I think a lot of people would argue you start out with
the Constitution upon which stare decisis is built. OK. Now,
you have tried to reassure us that stare decisis means a great
deal to you. You point out that prior Supreme Court precedents
like Roe will stand because of the principle. While you are on
the Third Circuit, of course, you can't overrule precedents of
the Supreme Court, but when you are on the Supreme Court, you
have a little bit more flexibility.
I just want to ask you this. Stare decisis is not an
immutable principle, right? You have said that before in
reference to Senator Feinstein. When Chief Justice Roberts was
here, he said it was discretionary. So it is not immutable, is
that right? You have told us it is not an inexorable command.
It doesn't require you to follow the precedent.
Judge Alito. It is a strong principle--
Senator Schumer. Correct.
Judge Alito [continuing]. And in general, courts follow
precedents. They need a special--the Supreme Court needs a
special justification for overruling a prior case.
Senator Schumer. But they have found them, and I think you
went over this. I can't recall if it was Senator Kohl or
Senator Feinstein, but you went through some cases. In recent
years, the Court has overruled various cases in a rather short
amount of time. You mentioned, I think it was, National League
of Cities about fair labor standards and it was overruled just
9 years later by Garcia. Stanford v. Kentucky was overruled by
Roper v. Simmons. Bowers v. Hardwick was overruled by Lawrence
v. Texas. And, of course, Brown v. Board was overruled by
Plessy. So the bottom line, I mean, we can go through this--
Senator Hatch. Plessy was overruled by Brown.
Senator Schumer. I mean, Plessy was overruled by Brown. I
apologize.
So the only point I am making is that despite stare
decisis, it doesn't mean a Supreme Court Justice who strongly
believes in stare decisis won't ever overrule a case, is that
correct? You can give me a yes or no on that. It is pretty
easy.
Judge Alito. Yes.
Senator Schumer. Of course. OK. So now let us try this
another way. Here is a quote: ``Stare decisis provides
continuity to our system. It provides predictability, and in
our process of case-by-case decisionmaking, I think it is a
very important and critical concept.'' The statement sounds
reasonable to me. It sounds to me like it is something you said
to Senator Specter and others, right?
Judge Alito. I agree with the statement.
Senator Schumer. Yes. Let me show you who said that
statement. It was Justice Thomas. Justice Thomas came before us
and stated that, and yet when he got on the Supreme Court, he
voted to overrule, or expressed a desire to overrule, a whole
lot of cases, including some very important ones on the Court.
Here are some quotes. ``Casey must be overruled.'' ``Buckley v.
Valeo should be overruled.'' ``Bacchus,'' just last year,
``should be overruled.'' And as you can see, it is a very large
number of cases, and these aren't all of them. In fact, Justice
Thomas said that a 1789 unanimous case by the Supreme Court,
Calder v. Bull, which no one talked about for centuries, should
be overruled. So what do you think of Justice Thomas's theory
of stare decisis and how he applies it?
Judge Alito. Well, Senator, I have explained my
understanding of the doctrine of stare decisis and it is
important to me. I think it is an important part of our legal
system. It is--
Senator Schumer. How about what Justice Thomas--what do you
think of what he is doing?
Judge Alito. Well, I don't think I should comment on all of
those cases.
Senator Schumer. OK. Let me just say this. You may not want
to comment, but his fellow Justice, Justice Scalia, did. Here
is what Justice Scalia said about Justice Thomas and stare
decisis, and remember what he said when he was sitting in the
same chair you are sitting in. He pledged fealty to stare
decisis.
Justice Scalia said, Justice Thomas, quote, ``doesn't
believe in stare decisis, period. If a constitutional line of
authority is wrong, he would say, let us get it right.'' Then
Justice Scalia said, ``I wouldn't,'' speaking of himself, ``I
wouldn't do that.'' And it is particularly relevant, because if
you believe something is not in the Constitution, at least the
way Justice Thomas talks about stare decisis, he would let the
Constitution overrule it and stare decisis would go by the
wayside, and I am not saying Justice Thomas was disingenuous
with the Committee when he was here. I am just saying that
stare decisis is something of an elastic concept that different
judges apply in different ways.
So let me go to another one here. I think I have covered
everything I want to do with Justice Thomas. Here is another
quote. ``There is a need for stability and continuity in the
law. There is a need for predictability in legal doctrine and
it is important that the law not be considered as shifting
every time the personnel of the Supreme Court changes.'' That
again sounds reasonable to me, quite a lot like what you said.
You don't have any dispute with that statement, do you?
Judge Alito. No, I don't.
Senator Schumer. OK. Well, let us see who said that one. It
was Robert Bork when he came before this Committee to be
nominated. Now, here is what Judge Bork wrote in the National
Review Online just a few weeks ago. He wrote, quote,
``Overturning Roe v. Wade should be the sine qua non of a
respectable jurisprudence. Many Justices have made the point
that what controls is the Constitution itself, not what the
Court has said about it in the past.'' And even before his
hearing, by the way, he sort of cut back on what he said at the
hearing, I guess. It may have been in a different context, but
here is a quote that he said a year, I think, before he came
before us. He said, ``I don't think that in the field of
constitutional law precedent is all that important.'' He said,
in effect, that a Justice's view of the Constitution trumps
stare decisis. That is not an unrespectable view. It is
probably not the majority view of Justices, but it is there.
So, for example, it was his view, similar to Justice
Thomas, that the Constitution does not protect a right to--that
if the Constitution does not protect the right to an abortion,
as you wrote in 1985, but we are not talking about how you feel
today, it would be overruled. It should be overruled despite
stare decisis. And one of the things I am concerned about here
is that what you wrote, and I think Senator Kohl went over it a
little bit, is what you wrote about Judge Bork in 1988. And by
the way, this was not when you were working for someone or
applying for a job. As I understand it, you were the U.S.
Attorney in New Jersey, well ensconced, a very good U.S.
Attorney, and it was with some New Jersey news outlet. I saw
the cite, but I didn't know what it was. You said that, about
Justice Bork, ``I think he was one of the most outstanding
nominees of this century. He's a man of unequaled ability,''
and here's the key point, ``understanding of constitutional
history, and then someone who has thought deeply throughout his
entire life.''
Now, first, one of the most outstanding of the 20th century
with Oliver Wendell Holmes and Benjamin Cardozo, and people you
have expressed admiration for, Frankfurter, and Brennan and
Harlan, I find it disconcerting that you would say that he is a
great nominee of the 20th century in his understanding of
constitutional law, and yet he so abjectly rejects stare
decisis.
Judge Alito. Well, I certainly was not aware of what he had
said about stare decisis when I made those comments. I have
explained those comments. They were made when I was an
appointee of President Reagan, and Judge Bork was President
Reagan's--
Senator Schumer. Excuse me. You were not working in the
White House. You were a U.S. Attorney prosecuting cases. There
was no obligation for you to say what you said, right?
Judge Alito. No, but I had been in the Department of
Justice at the time of--
Senator Schumer. I know, but it was a voluntary interview
with some New Jersey news outlet, is that correct?
Judge Alito. And I was asked a question about Judge Bork,
and I had been in the Department at the time of his nomination,
and I was an appointee of President Reagan, and I was a
supporter of the nomination.
Senator Schumer. Let's go to the next line of questioning
here, but again, the point being judges, Justices, overrule
cases despite stare decisis, particularly when they think the
Constitution dictates otherwise. And now I want to turn to your
own record in the Third Circuit, something you mentioned
yesterday and today. When you have been on the Third Circuit,
of course, you had to follow Supreme Court precedent, and you
professed a whole lot of times your desire to do that, and I am
not disputing that here. But it is also true that when you were
on the Third Circuit, a more apt analogy in terms of stare
decisis would be about Third Circuit precedents, because if you
should get on the Supreme Court, stare decisis will apply to
Supreme Court decisions the way stare decisis to a Third
Circuit Judge applies to Third Circuit decisions. That is
pretty fair, right?
Judge Alito. Yes, and I've tried to follow Third Circuit
precedents while I've been--
Senator Schumer. Although you have dissented more than most
of your fellow judges, but we will leave that aside. What I
want to show here is how many times, when you were on the Third
Circuit, your fellow judges on the Third Circuit--who I am sure
have high respect for you. I know a lot of them are coming here
in a few days, and I think that is nice, I do not have any
problem with that.
[Laughter.]
Senator Schumer. Well, there has been some criticism about
it, not by me.
I just want to show you what they have said when it comes
to their view of your respect for Third Circuit precedent,
stare decisis, as relevant as we can find it to you. So I am
going to read a few. There are a whole bunch. But in Dia v.
Ashcroft--they are all on this chart I guess. There are too
many so the print is not large enough for most people to see. I
wish there were fewer. In Dia v. Ashcroft the majority of your
court said that your opinion ``guts the statutory standard and
ignores our precedent.'' In LePages, Inc. v. 3M your opinion
was criticized as ``being contrary to our precedent and that of
the Supreme Court.'' In RNS Services v. Secretary of Labor you
again dissented, and the majority again argued that, ``Your
dissent overlooks our holding in the instant case and prior
cases.'' In Riley v. Taylor, the en banc majority argued that
your view ignored case after case relied by the majority, and
``accords little weight to those authorities.'' In Texas
Eastern Transmission Corp., a panel criticized your opinion
because, ``It does not comport with our reading of the relevant
case law.'' In Bray v. Marriott Hotels, the majority noted that
binding circuit precedent made your analysis improper in a
discrimination case.
And the list goes on and on. I do not have to--but other
cases that are mentioned here, United Artists v. Warrington,
Beauty Time v. VU Skin Systems. Here is a final one, Rappa v.
New Castle County, Judge Garth, the man I think you clerked for
and is regarded as a mentor to you, wrote that your majority
opinion was ``unprecedented'' in its ``disregard of established
principles of stare decisis.'' ``Nothing,'' Judge Garth wrote,
``in the jurisprudence of the Supreme Court or in ours suggests
that a three-judge panel of a court of appeals is free to
substitute its own judgment for that of a four-justice
plurality opinion, let alone that of the entire court.''
So those are just some of the cases in which your own
colleagues said you did not follow stare decisis. Now, there
may have been good reason. I am not--you are much more expert
on these cases than I am. There may have been good reason for
you to do it, but I think it shows something, and that is, you,
if we have to project as to what kind of a Supreme Court
Justice you will be, are not going to be as reluctant as some
to overturn precedent even by the rules of stare decisis. And
so you wonder if you are as willing as you are to depart from
precedent on the Third Circuit, what is going to happen if you
should get on the Supreme Court? Your response because I
mentioned a whole lot of cases here.
Judge Alito. You did, Senator, and I think that you need to
examine each of the cases to see whether what I did was
justified. Let me just take one that struck me when you read
from it, and that was the United Artists case. What I said
there was that a Supreme Court decision that had come up, that
had been handed down after the most recent Third Circuit
decision relating to the issue, superseded what our court had
said. So I was following an aspect of stare decisis there. I
was following what we call horizontal--I'm sorry--vertical
stare decisis following the Supreme Court, and I don't think
there's any dispute that when the Supreme Court hands down a
decision that's in conflict with one of our earlier cases, we
have to follow the Supreme Court.
Senator Schumer. Yes, but there is no question that in that
situation, Judge Cowen said your opinion was, ``wrong to
revisit an issue that has already been decided and failed to
give respect and deference to the circuit's well-established
jurisprudence employing the improper motive test in the
substantive due process land use context. It is rather
complicated, but he is sure saying you did not follow, in his
view, you did not follow court precedent.
Judge Alito. And, Senator, there was this body of Third
Circuit precedent, and then--and it said that it's proper for a
Federal court to get involved in a zoning dispute, which is
traditionally a local matter, if there is simply an improper
motive, whatever that might be. And in the--after that the
Supreme Court, in an opinion by Justice Souter, emphasized that
the test under substantive due process in an area like this, an
area that the other judge in the majority and I thought was
like this, is whether what was done shocks the conscience.
And so you have a Supreme Court decision intervening, and
in that situation I thought it was our obligation--and I wrote
the majority opinion there--to follow what the Supreme Court
had said.
Senator Schumer. But my only point being here is one
judge's view of what stare decisis requires, and another
judge's view of what stare decisis requires, are not always the
same. The concept has some degree of elasticity, and when, in
reference to questions by people, you say, well, how do you
feel about this case--and particularly Roe, which has been
where we started off here--``I believe in stare decisis,'' it
means that you are going to take precedent into account, but it
certainly does not necessarily mean where you would come out.
Let me tell you where I conclude where you would come out,
just sort of summarizing this argument. First, again, greatly
disturbing I think to many Americans would be that you will not
distance yourself from your 1985 view that the Constitution
does not protect a right to a woman's right to choose, that
that view has not changed, that you have refused to say, unlike
you did in another part of that 1985 memo, that you think it is
wrong now, which would lead one to think that you probably
believe in it.
Second, you have told us you respect precedent and stare
decisis, but we have seen that the stated respect for stare
decisis hardly determines whether a Supreme Court Justice will
vote to uphold precedents, not because when they come here they
are being disingenuous with us. I do not think that at all. But
because the concept is somewhat elastic, because it does not
guarantee that you will uphold precedent, and particularly does
not guarantee it when the Constitution conflicts with stare
decisis, with the precedents of the Court.
And finally, to top it off, we have seen that your Third
Circuit record can hardly provide a great deal of comfort in
this area either, that many of your fellow judges criticized
you for ignoring, abandoning, or overruling precedent.
Taken together these pieces are very disturbing to me. Your
blanket 1985 statement, not distanced from, that the
Constitution does not protect the right to an abortion; the
fact that respect for precedent and stability does not prevent
overruling of a past decision; and your own record of reversing
or ignoring precedent on the Third Circuit lead to one
inevitable conclusion.
We can only conclude that if the question came before you,
it is very likely that you would vote to overrule Roe v. Wade.
I yield back my time.
Judge Alito. Well, Senator, could I just respond to that--
Senator Schumer. Please, the time is yours.
Judge Alito [continuing]. To that question. My Third
Circuit record, in looking at abortion cases, provides the best
indication of my belief that it is my obligation to follow the
law in this area and in all other areas. If I had had an agenda
to uphold any abortion regulation that came along, I would not
have voted as I did in my Third Circuit cases.
Now, I've testified here today about what I think about
stare decisis. I do think it's a very important legal doctrine,
and I've explained the factors that figure into it. It would be
the first question that I would consider if an issue like this
came before me.
Senator Schumer. Let me just say though, you have ruled on
certain cases. Many of them were on technicalities. And in all
of them as a Third Circuit Judge, you were bound by Supreme
Court precedent. You never, in the Third Circuit, were squarely
presented with the question that I asked, which is a decisive
question, which is whether the Constitution protects a woman's
right to choose. You were never asked in the court, you were
never asked to overturn Roe v. Wade. And even if you were in
the Third Circuit, you could not, because you were bound by the
precedent of the Court. I do not think your Third Circuit
rulings are dispositive on what you would do should you become
a U.S. Supreme Court Justice.
Thank you, Mr. Chairman.
Judge Alito. If the matter were to come up before me on the
Supreme Court, I would consider the issue of stare decisis, and
if the case got beyond that, I would go through that entire
judicial decisionmaking process that I described. That's not a
formality to me. That is the way in which I think a judge or a
Justice has to address legal issues, and I think that is very
important, and I don't know a way to answer a question about
how I would decide a constitutional question that might come up
in the future, other than to say I would go through that whole
process.
I don't agree with the idea that the Constitution always
trumps stare decisis--
Senator Schumer. Does not always, but sometimes--
Chairman Specter. Let him finish his answer, Senator
Schumer.
Senator Schumer. I am sorry.
Judge Alito. I don't agree with the theory that the
Constitution always trumps stare decisis. There would be no
need for the--there would be no room for the doctrine of stare
decisis in constitutional law if that were the case.
Senator Schumer. But, sir, it can trump stare decisis, does
not always, but can. Is that correct?
Judge Alito. It certainly can, and I think that is a good
thing because otherwise, Plessy v. Ferguson would still be on
the books.
Senator Schumer. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Schumer.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
Judge Alito, are you familiar with the question that
lawyers sometimes pose to demonstrate how unfair a question can
be: ``When did you stop beating your wife? ''
Judge Alito. I am familiar with that question.
Senator Cornyn. And I suppose the reason why--
[Laughter.]
Senator Cornyn. Since someone was picking on your mother-
in-law, I thought we would inject your wife into this. But the
point is this: it is an unfair question because it implies,
regardless of what your response has been, that at one time you
did, when, in fact, you have not.
And I just want to explore, to start with, Senator
Schumer's questions about what is written in this Constitution
about abortion. Does the word abortion appear anywhere in the
Constitution?
Judge Alito. No. The word that appears in the Constitution
is ``liberty.''
Senator Cornyn. And outside of, let's say, the Fourth
Amendment, perhaps, does a right to privacy appear, explicitly
stated, in the Constitution?
Judge Alito. There is no express reference to privacy in
the Constitution, but it is protected by the Fourth Amendment
and in certain circumstances by the First Amendment and in
certain circumstances by the Fifth and the 14th Amendments.
Senator Cornyn. And the reason it is protected is because
the Supreme Court has so interpreted the Constitution. Isn't
that correct, sir?
Judge Alito. That is correct. It is a question of
interpretation rather than simply looking at what is in the
text of the document.
Senator Cornyn. So to ask you whether the right to free
speech, which is explicitly protected under the First Amendment
of the Constitution--to ask you whether that is in there and
then just ask you in the same question, or at least same series
of questions, whether the right to abortion on demand is in the
Constitution, one is explicitly stated in the First Amendment;
the other is the product of Court interpretation. Isn't that
accurate, sir?
Judge Alito. Yes, that is my view of it.
Senator Cornyn. And to be more specific, it is what the
courts have called penumbral rights. In other words, Griswold,
I believe it was, talked about this being the penumbra of the
emanations from stated rights in the Constitution. Can you
clarify that for us so we can get it right?
Judge Alito. Yes. Griswold talked about emanations and
penumbras, and Griswold has later been understood by the
Supreme Court as being based on the protection of liberty under
the Fifth Amendment and the 14th Amendment.
Senator Cornyn. Well, I was particularly troubled by the
exchange of questions and answers because the suggestion is
that you have somehow been unresponsive. And as I said in my
opening statement, I do think that there are those who have
already decided to vote against your nomination and are looking
for some reason to do so. And I think one of the reasons that
they may claim is that you have been nonresponsive. But I
thought it was telling that Senator Schumer said he didn't
expect you to answer that question.
I would like to refer back to Senator Biden's comments
where he praised you at the close of his remarks. He said, ``I
appreciate you for being responsive.''
I agree with him. I cannot remember a nominee being this
forthcoming. I appreciate that you have answered nearly every
question put to you. Thank you for being so responsive. And
indeed, according to one count, you have answered more than 250
questions thus far today.
So I think in all fairness, the question is not a fair one
to ask you whether the right to an abortion is written in this
document. The fact is, and the reason why you apply the
doctrine of stare decisis is because you recognize the
precedential effect, the authoritative effect of the Supreme
Court's interpretation of this document as the law of the land,
do you not, sir?
Judge Alito. That is correct.
Senator Cornyn. And you mentioned Plessy v. Ferguson. I
think it was Daniel Patrick Moynihan, a Democrat Senator from
Senator Schumer's State, who said if it weren't for the ability
of the courts to go back and revisit these decisions, how would
you ever correct a mistake? And I think the fact is that you
have mentioned one of the instances where, thank goodness, the
Court has gone back and revisited a terrible decision which has
been a scar on our country and our jurisprudence, Plessy v.
Ferguson.
And if the Court, in Brown v. Board of Education, had felt
prohibited from revisiting that mistake, then we would still be
living under that scar and I think we can all agree that that
would be a terrible thing. And thank goodness, we have a
Supreme Court that has had the courage to go back, in
accordance with the principles of stare decisis, and revisit
terribly wrong decisions and to correct them and to bring us
where we are today.
You know, it must be strange to have people listen to the
questions and answers here because on one hand, you will hear
rather complimentary comments. On the other hand, even Senators
who are still at least for the record undecided--I hate to
think what it would be like if they had actually determined to
vote against you already--making rather strong critical
statements.
But it means a lot to me to know that the people who know
you best, the people who have worked with you on the Third
Circuit Court of Appeals, are very complimentary. I happen to
believe that we ought to look to the people that know you best
as being in the best position to judge your character, your
integrity, your competence, and not this caricature that
happens during these confirmation proceedings by the attack
dogs, the interest groups who pay a lot of money, spend a lot
of time trying to tear down that reputation for integrity and
competence that you have worked so hard to build during your
lifetime.
But I was struck--and we will hear more about the judges
who have served with you on the Third Circuit--but I was struck
by a quote that I read from your former colleague, the late
Judge Leon Higginbotham.
Who is Judge Higginbotham, by the way, or who was he?
Judge Alito. Well, he was the former Chief Judge of the
Third Circuit and he was a Federal judge for many years and
greatly respected.
Senator Cornyn. Well, this is what the Harvard Journal of
African-American Public Policy--how it described him, in part.
They said, ``Higginbotham was appointed to the Federal circuit
bench by President Jimmy Carter in 1977. Higginbotham is also
former president of the Philadelphia Chapter of the NAACP.''
And would it be fair to say that you and Judge
Higginbotham, while you served together, you tended to look at
the Constitution differently? In other words, could he fairly
be described as a liberal?
Judge Alito. I think probably most people would describe
him that way. I thought we got along very well, and we
generally agreed. There were cases in which we disagreed and
cases in which I dissented from an opinion that he wrote. And I
think there were cases in which he dissented from opinions that
I wrote.
Senator Cornyn. Well, I wonder if you are aware of one
thing that he was quoted as having said. This is out of the Los
Angeles Times, comments he made about you to Judge Timothy
Lewis, quoted in the Los Angeles Times, ``Sam Alito is my
favorite judge to sit with on the court. He is a wonderful
judge and a terrific human being. Sam Alito is my kind of
conservative. He is intellectually honest, he doesn't have an
agenda, he is not an idealogue.''
Were you aware that Judge Higginbotham had said that about
you?
Judge Alito. No, I wasn't. I was not.
Senator Cornyn. Well, I am pleased to tell you he did say
it, according to the Los Angeles Times, and I think it is a
high compliment that someone who would have perhaps such a
divergent view and perhaps different political beliefs than you
would say those sorts of things about you and your record on
the Third Circuit Court of Appeals.
Now, I have some charts, too, like Senator Schumer. I like
my charts better than his, but we will let others be the judge.
But I want to ask you a little bit about Justice Sandra Day
O'Connor. You had some very high compliments about her
yesterday. Senator Kyl, her fellow Arizonan, said some
wonderful things about her, and I am confident that all of
those accolades are well deserved. Some have called her the
model Supreme Court Justice, and that is high praise, it really
is.
And I would like to submit for my colleagues' consideration
that if Sandra Day O'Connor was in the mainstream, then Sam
Alito is, too, and this is why. For example, Justice O'Connor
and Judge Sam Alito both set limits on Congress's commerce
power. Sandra Day O'Connor and Sam Alito both struck down
affirmative action policies that had strict numerical quotas,
and both--this ought to be a shocker to some based on what we
have heard here today--both Justice Sandra Day O'Connor and
Judge Sam Alito have criticized Roe v. Wade.
In fact, this is pretty astonishing to me. According to the
Harvard Law Review, over the last decade Justice O'Connor
agreed more often with Chief Justice Rehnquist, 80 percent of
the time, than with any other Justice. And let's go through
these individually.
First of all we talk about whether it can be a Federal
crime to possess a machine gun that doesn't implicate
trafficking or some aspect of interstate commerce. But, you
know, all we have to do is go back to a little bit of the
history we all learn in high school to remember the Articles of
Confederation and the fact that the States were all-powerful.
The national Government was crippled because it really had no
power and was subject to the unanimous vote of the states
before it could do things that were very important.
And so then in Philadelphia, the delegates there wrote, and
ultimately ratified, a Federal Constitution. But you already
alluded to this earlier. This Constitution takes into account
that not only will the national Government have certain powers,
but there will also be some powers still reserved to the
States.
It is a fact, is it not, sir, that when we talk about
federalism, really what we are talking about is the fact that
our Federal Government, our national Government is one of
enumerated powers that are set out in the Constitution and all
powers that are not enumerated or necessary and proper to the
execution of those enumerated powers as a general rule are
reserved to the states?
Judge Alito. Yes, that is the structure of the
Constitution. The Federal Government has certain--has
enumerated powers. Some of them are broad, but those are the
powers the Federal Government has and the theory--and the
structure is that everything else was reserved for the States.
Senator Cornyn. And so when someone suggests that you are
taking a crabbed or cramped or unorthodox view toward
congressional power because you say that it is not clear from
the statute or the crime with which an individual is charged
that interstate commerce is implicated, aren't you enforcing
that original understanding of what powers were expressly or
otherwise delegated to the Federal Government and what powers
were reserved to the States?
Judge Alito. Well, that is what Lopez, as I understand it,
tried to do. It said that although the commerce power is broad,
it is not all-encompassing. It involves the regulation of
interstate and foreign commerce, and this statute that we have
in Lopez goes beyond that. And my case, the Rybar case, seems
to me to be as close to the situation in Lopez as any case that
I was aware of.
Senator Cornyn. Well, I know my constituents back in Texas,
and I suspect people all across the country would be glad to
know that you don't believe that all wisdom and all power is
centered in Washington, D.C., but that under our Federal system
the State and Federal governments are partners, and that
enforcing this structure that is a product of our history and a
product of our Constitution is an important thing for judges to
do.
But it is interesting because if Sandra Day O'Connor was in
the mainstream on the interpretation of the Commerce Clause,
then so is Judge Sam Alito. As a matter of fact, I believe in
Rybar you said the question before the court is whether Lopez
is a constitutional freak, or words to that effect, because as
you pointed out, it was a little bit of a shock to everyone's
system to see the Supreme Court was actually serious about
recognizing the authority of the States and that there are
limits to congressional power. But Lopez reestablished or
perhaps restated that understanding.
Judge O'Connor joined the majority in the Lopez decision,
did she not, sir?
Judge Alito. Yes, she did.
Senator Cornyn. And so she shared at least to that extent
your conviction that there is some limit to congressional power
and that there was some point beyond which Congress's authority
could not reach unless it was made clear that it was pursuant
to one of the powers enumerated under the Constitution. Did I
say that roughly correctly?
Judge Alito. I agree with that she said that Congress's
power under the Commerce Clause is not all-encompassing. And my
job as a court of appeals judge is not to say that a decision
of the Supreme Court should be limited to its facts; in other
words, not applied as a precedent in any other comparable
situation that comes along. My job is to take those precedents
seriously and that is what I tried to do.
Senator Cornyn. So when Justice O'Connor held in Lopez that
Congress could not prohibit the possession of handguns near
schools because mere possession is not commerce, you were doing
your very best to stick to that precedent established by the
U.S. Supreme Court when you wrote your opinion in Rybar. Is
that correct?
Judge Alito. That's correct. In Lopez, the Supreme Court
said that possession of a firearm, mere possession is not a
commercial activity, and the interstate commerce--the Commerce
Clause authorizes the regulation of interstate commerce, and
the activity involved in Rybar was the possession of a firearm.
So it followed that if it was a noncommercial activity in
Lopez, it must be a noncommercial activity in Rybar. That's how
I saw it.
Senator Cornyn. And you didn't say the State couldn't
criminalize possession of a machine gun, did you?
Judge Alito. No. The State could, and I think a great
majority of States, if not--the great majority certainly have
legislation of that nature.
Senator Cornyn. And you pointed out here that if the
Congress had been a little more careful in showing the basis
upon which mere possession could affect interstate commerce,
that that would be a different case, and perhaps the outcome
might have been different in Rybar.
Judge Alito. Yes, that was a strong point that I made in
the dissent, that if Congress had made findings, it would have
been a very different case for me.
Senator Cornyn. You know, the interesting thing to me about
Rybar as well, you have been accused of always ruling for the
big guy or the government. But in Rybar you decided for the
person accused of illegally possessing the machine gun.
Judge Alito. Well, that's correct. He was a criminal
defendant.
Senator Cornyn. You didn't rule for the government?
Judge Alito. No, I did not. I thought the government had
not come forward with evidence to support the position that
they were arguing.
Senator Cornyn. Well, there is another question about
affirmative action cases. We have alluded a little bit to that.
And Justice Sandra Day O'Connor, the model Supreme Court
Justice who is clearly in the mainstream, you and Justice
O'Connor both agreed to strike down affirmative action policies
which set numerical quotas which resulted in reverse
discrimination. She did in Wygant v. Jackson Board of Education
in 1986. You did in Taxman v. Board of Education in 1996. Would
you agree with that, sir?
Judge Alito. I would. Taxman was a case that our court
considered en banc, that is, all the judges were sitting, and I
sit on a very moderate court that is certainly not unreceptive
to the concept of affirmative action in general. But the vote
in that case was 8-4. It wasn't a close vote. And I joined the
opinion that was written by my late colleague, Judge Mansmann,
holding that that particular affirmative action plan was in
violation of Title VII.
Senator Cornyn. Let's talk again about Roe v. Wade. Now,
this is going to be a shocker for some people based upon what
has gone on before, because it has been suggested that but for
Sandra Day O'Connor, Roe v. Wade may be overruled; that this is
really what lies in the balance here during your confirmation
proceedings. But the fact is that Justice Sandra Day O'Connor,
the model Supreme Court Justice, wrote in The City of Akron v.
Akron Center for Reproductive Health, ``The trimester three-
stage approach adopted by the Court in Roe cannot be supported
as a legitimate or useful framework.'' Roe, she said, ``is
clearly on a collision course with itself.''
And in the memorandum for which you have been disparaged
many a time when you were in the Solicitor General's office,
you recommended, ``Don't mount a frontal attack on Roe v. Wade
but instead use the opportunity to nudge the Court toward the
principles in Justice O'Connor's Akron dissent.''
So when you had an opportunity to urge the reversal of Roe
v. Wade, even as a lawyer for the administration, you urged a
more cautious approach and one consistent with Justice
O'Connor's opinion at the time. Isn't that correct, sir?
Judge Alito. Yes, Justice O'Connor's opinion in Akron,
which was the last previous big Supreme Court decision at that
time, was one of the things that influenced me in the memo that
I wrote in Thornburgh. She analyzed Roe, and I was quite
persuaded by the points that she made in the Akron decision.
And the general approach--the arguments that I was recommending
that the Government make in the Thornburgh case were along the
lines of the undue burden standard I think that was later--that
she later adopted. I was arguing that the particular provisions
should be challenged on their own terms. One of the provisions
was an informed consent provision that was virtually identical
to the informed consent provision that later came up in Casey,
and in Casey it was upheld.
Senator Cornyn. Well, let's talk about Casey. That was a
1992 decision by the U.S. Supreme Court. Isn't that correct,
sir?
Judge Alito. Yes.
Senator Cornyn. And in Casey, Justice Kennedy, Justice
Souter, and Justice O'Connor, the model Supreme Court Justice,
essentially scuttled the principal argument in favor of the
right to abortion based on this trimester approach, which
Justice O'Connor criticized and which has also been criticized
by people like Justice Ginsburg, former counsel to the American
Civil Liberties Union, who now serves on the Court; Laurence
Tribe, a well-known liberal legal scholar at Harvard. The fact
is Roe v. Wade, the writing itself, the justification for the
decision has been widely criticized by legal scholars all
across the spectrum, has it not, sir?
Judge Alito. It certainly had been at the time of the 1985
memo, and although I wasn't recommending that the Government
get into that issue, I mentioned in the memo some of the
authors who had criticized Roe's reasoning.
Senator Cornyn. Well, and in 1992, the only thing that
really survived in Roe v. Wade, which was written 33 years ago,
was the essential holding--I guess you could call it that--and
there have been some quotes about the importance of reliance
interests in terms of observing--giving it the benefits of
stare decisis or precedent. But essentially the whole legal
scheme or basis upon which abortion was protected was changed
to an undue burden standard. Isn't that right, sir?
Judge Alito. In Casey, the Supreme Court moved away from
the trimester approach, and they adopted the undue burden
standard, which had been set out in some earlier opinions by
Justice O'Connor and the joint opinion in Casey made it clear
that that was now the governing standard under Supreme Court
law.
Senator Cornyn. But the plurality opinion--Justice
O'Connor, Justice Kennedy, Justice Souter--did not say you can
have abortion without limitation. It did recognize the right of
the States to pass laws which regulate abortion as long as it
did not create an undue burden on a woman's right to have an
abortion, according to that decision. Isn't that roughly what
the plurality said?
Judge Alito. Yes, that's what they held.
Senator Cornyn. Let's get the other chart.
My point is that if on at least three counts, on the basis
of does Congress's commerce power, limitations on congressional
authority in the affirmative action area, and in terms of
criticizing the basis upon which Roe v. Wade was decided 33
years ago, you and Justice O'Connor bear a lot of similarities.
I would just ask that if Justice O'Connor is a model Supreme
Court Justice and, therefore, by definition is not outside the
mainstream, then it strikes me that Sam Alito is not outside
the mainstream, either.
Another thing you have been criticized for is your
unlimited view of Presidential power, that is the way it has
been phrased, the suggestion that somehow you are always going
to defer to the President and the Executive branch when the
legislative branch and the Executive branch vie for authority,
whether it is in the intelligence gathering area, the National
Security Agency and this electronic eavesdropping, which is
really an early warning system to try to identify terrorists so
we can protect ourselves against another 9/11, or other acts of
Presidential power.
Senator Graham talked a little bit about the Hamdi
decision, where the U.S. Supreme Court interpreted the use of
force authorization that was issued by Congress after the 9/11
attack authorizing the President to use necessary force to
defeat the Taliban and al Qaeda, the supposed perpetrators of
the 9/11 attacks. The question came up in Hamdi whether that
included an authorization by Congress to detain terrorists
without charging them with a crime. My understanding is in that
case that the Supreme Court, it was fractured, but the
plurality opinion that Justice O'Connor wrote said that that
authorization of use of force was a congressional Act which
trumped the statutory limitation that Congress had previously
passed about detaining American citizens without charging them
with a crime. Did I get that roughly correct?
Judge Alito. Yes, that's exactly correct. Eighteen U.S.C.
4001, which is called the anti-detention statute, says that
nobody may be detained without authorization, and in Hamdi,
Justice O'Connor's opinion concluded that the authorization for
the use of military force constituted statutory authorization
to detain a person who had been taken prisoner as an unlawful
combatant in Afghanistan.
Senator Cornyn. Well, I appreciate you pointing out that
one of the other important statements in Hamdi was that people
who are detained have certain due process rights and that the
President cannot exercise his powers as Commander in Chief
without judicial review or without anyone else looking at it,
including a court or military tribunal under appropriate
circumstances. But the fact is, Justice O'Connor took a view of
Presidential power there that some might consider to be rather
broad, the power to detain an American citizen who is a
suspected terrorist without actually charging them with a crime
for the reasons that Senator Graham stated, that if that person
who was actually captured in Afghanistan and brought to
Guantanamo Bay, if they were released, then they likely would
return to the battlefield and plot and plan and execute lethal
attacks on American citizens.
Interestingly, people like to characterize judges as
conservative or liberal. One interesting thing to me about that
is Justice Scalia, who you have been likened to, actually
dissented and held that it was unconstitutional for the
President to detain these individuals without charging them
with some crime, like treason or something else, isn't that
correct, sir?
Judge Alito. Yes, that's correct. This is a case where
Justice O'Connor's view of the scope of Executive power was
broader, considerably broader, than Justice Scalia's. Justice
Scalia's position was that unless habeas corpus is suspended,
and there are only limited circumstances in which that can take
place, then there would have to be a criminal trial.
Senator Cornyn. Judge Scalito, my--Alito, excuse me. After
talking about Judge Scalia--you know what I was thinking in the
back of my mind, a nickname that you have acquired sometimes,
and I apologize.
But the fact is that people try to characterize judges as
being somewhere on the political spectrum or making results-
oriented decisions based on some ideology. But the fact is, and
I will just ask you if you agree with this, whether good judges
who try to apply the law to cases and facts that come before
them on an individual basis without regard to who wins and who
loses, their decisions could be characterized as liberal,
conservative, and anywhere in between. Has that been your
experience?
Judge Alito. I think that is correct, Senator. I think that
all these labels when you are trying to describe how judges
behave, how they do their work, have their limitations and
different people use them in different ways.
Senator Cornyn. Thank you very much.
Chairman Specter. Well, thank you very much, Senator
Cornyn, for that round of questions. When Senator Cornyn
misstates even one word, with his competency, you know it is
getting late.
[Laughter.]
Chairman Specter. Thank you, Judge Alito, for your--we can
all agree, there may be some areas of controversy among the 18
of us, but I think we can all agree about your stamina and your
poise and your good humor and even some subtle humor.
Your family has shown the same kind of stamina. The crowd
has pretty well emptied out, but the Alitos are all still here
and they have provided not only support but occasion for a
comment or two. I noticed a big smile on your wife's face when
you were asked if you stopped beating your wife.
[Laughter.]
Judge Alito. I wasn't asked whether she had stopped beating
me.
[Laughter.]
Chairman Specter. Now that is some of that subtle humor
that your profiles talk about. We would like to see a little
more of it, Judge. Perhaps if we went 11 hours instead of 10
hours, we would get to that.
Senator Leahy. Oh, please don't.
[Laughter.]
Chairman Specter. I have been vastly--
Senator Leahy. I will certify that he is very, very funny.
Just don't do the other two hours.
[Laughter.]
Chairman Specter. That raises the question as to what else
you will certify to, Senator Leahy.
Senator Leahy. That is enough for today.
[Laughter.]
Chairman Specter. I want to make one comment, which I have
been pondering as to whether I ought to make it, but there is a
story which is inapplicable to you, Judge Alito, so I think I
can make it. The question is always raised, who is behind a
successful man, and the answer is a surprised mother-in-law.
[Laughter.]
Chairman Specter. But you have negated that infrequently
told story.
So I want to thank you for your testimony today and I want
to thank my colleagues for what we are proceeding to do here in
accordance with our commitment to have a full, fair, and
dignified hearing. I think we are on the way. These proceedings
are being very broadly covered. You can't pick up the front
page of any newspaper in America without seeing your smiling
face, Judge. In an era where the media is filled with criticism
about the Congress, I think it is a good day for the U.S.
Congress to have these proceedings because people have been
watching them and they see long hours and they see seriousness
and they see important issues and they see the kind of dignity
which we have had here today. I thank my colleagues and I thank
you, Judge Alito.
We will resume this hearing tomorrow morning at 9:30.
[Whereupon, at 7:03 p.m., the Committee was adjourned, to
reconvene on Wednesday, January 11, 2006, at 9:30 a.m.]
NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
WEDNESDAY, JANUARY 11, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room 216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. The Judiciary Committee will now proceed
with the confirmation hearing for Judge Alito for the Supreme
Court of the United States.
Welcome back, Judge Alito.
We have three members who have not had their first round of
questioning of 30 minutes, and we will proceed there, and then
we will have a second round of questioning for 20 minutes each.
I expect we will need to work a long day today. It is my hope
that we might finish the questioning of Judge Alito. That might
be overly optimistic, but we will see how things go.
Senator Durbin, you are recognized for 30 minutes.
Senator Durbin. Thank you very much, Mr. Chairman.
Senator Leahy. Before we start the clock on Senator Durbin,
if I might say on the questions, one, I admire the stamina both
of the nominee and his family, but a number of us have been
troubled by what we see as inconsistencies in some of the
answers, and we are going to want to go into those in some
depth, on the issue of one person/one vote, Vanguard recusal,
unitary theory of Government, CAP and so on.
I want to clear up in my mind and in the minds of many over
here what we see as inconsistencies. I know many have announced
up here exactly how they are going to vote before they even ask
questions. I am one of the one who likes to make up my mind
after asking the questions, so there will be a number more.
Chairman Specter. Thank you, Senator Leahy. I appreciate
the comment. There are many issues. Judge Alito has responded
for about 7\1/2\ hours so far, and we are going to have another
hour and a half on opening statements, and then with each
Senator having 20 minutes on a second round, six more hours. So
we will see if he has covered the waterfront, and this will be
a full and fair hearing. We will give every opportunity to ask
the questions.
Senator Leahy. Mr. Chairman, with you as Chairman, I know
it will be a full and fair hearing, and that is one thing that
every single Democrat on this side is aware of.
Chairman Specter. I think that is very important for the
nominee, for the Committee and for the country, and we will do
that. The adjunct to full, fair is dignified, and I think so
far we are on track.
OK, Senator Durbin, keep us on track. Senator Durbin is
recognized. We will start the clock at 30 minutes.
Senator Durbin. Thank you very much, Mr. Chairman.
Judge Alito, thank you for coming for the second day and
not quite the end of the first round. I thank your family for
their patience, listening to all of our questions, and I hope
that at the end of the day we will feel that we have really
added something to the process of choosing a person to serve in
a lifetime appointment to the highest Court in our land.
I listened to you carefully yesterday address an issue
which is very important to me, the Griswold case, because I
think that it is a starting point for me when it comes to
appointments to the Supreme Court. If I had any doubt in my
mind that a Supreme Court nominee recognized the basic right of
privacy of American citizens as articulated in Griswold, I
could not support the nominee. And I listened as you explained
that you supported that right of privacy and that you found the
Griswold decision grounded in the Fifth Amendment as well as
the 14th Amendment.
I would ask you at this point--you obviously support Brown
v. Board of Education, do you, and the finding of the Court in
that?
Judge Alito. Certainly, Senator.
Senator Durbin. Do you believe that the Constitution
protects the right of children in America to be educated in
schools that are not segregated?
Judge Alito. Absolutely, Senator. That was one of the
greatest, if not the single greatest thing that the Supreme
Court of the United States has ever done.
Senator Durbin. As you read that Supreme Court decision,
that historic decision, they find the basis for that decision
was the Equal Protection Clause of our Constitution.
Judge Alito. Yes, they did, and that was, I think--of
course, we fought a Civil War to get the 14th Amendment and to
adopt the constitutional principle of equality for people of
all races.
Senator Durbin. The reason I ask you about those two cases
is that neither of those cases referred to explicit language in
the Constitution. Those cases were based on concepts of
equality and liberty within our Constitution, and the Griswold
case took that concept of liberty and said it means privacy,
though the word is not in our Constitution, and the Brown v.
Board of Education case took the concept of equality, equal
protection, and said, that means public education will not be
segregated. I raise that because I listened carefully as
Senator Schumer asked you yesterday about Roe v. Wade, and I
could not understand your conclusion. You conceded the fact
that we have free speech because it is explicit in our
Constitution, a protected constitutional right, and yet, when
Senator Schumer asked you repeatedly, ``Do you find that Roe v.
Wade established and recognized a constitutional protection for
a woman to make this most private decision,'' you would not
answer. You would not give a direct answer. On two Supreme
Court cases, Griswold and Brown now, you have said, just as we
started this hearing, that you believe there is a
constitutional basis for this protection and for this right,
and yet when it came to Roe v. Wade you would not.
Most of us are troubled by this 1985 memo. You said
yesterday you would have an open mind when it came to this
issue. I am sorry to report that your memo seeking a job in the
Reagan administration does not evidence an open mind. It
evidences a mind that, sadly, is closed in some areas.
Yesterday when you were asked about one man/one vote, you
clarified it, said those were my views then, they are not my
views now. When Senator Kohl asked you about the power and
authority of elected branches as opposed to others, no, you
said, I want to clarify that is not my view now.
And yet, when we have tried to press you on this critical
statement that you made in that application, a statement which
was made by you that said the Constitution does not protect the
right to an abortion, you have been unwilling to distance
yourself and to say that you disagree with that. I think this
is critically important, because as far as I am concerned,
Judge Alito, we have to rely on the Supreme Court to protect
our rights and freedoms, especially our right to privacy. For
you to say that you are for Griswold, you accept the
constitutional basis for Griswold, but you cannot bring
yourself to say there is a constitutional basis for the right
of a woman's privacy when she is making a tragic, painful
decision about continuing a pregnancy that may risk her health
or her life, I am troubled by that.
Why can you say unequivocally that you find constitutional
support for Griswold, unequivocally you find constitutional
support for Brown, but cannot bring yourself to say that you
find constitutional support for a woman's right to choose?
Judge Alito. Brown v. Board of Education, as you pointed
out, is based on the Equal Protection Clause of the 14th
Amendment, and the 14th Amendment, of course, was adopted and
ratified after the Civil War. It talks about equality. It talks
about equal protection of the law, and the principle that was
finally recognized in Brown v. Board of Education, after nearly
a century of misapplication of the 14th Amendment, is that
denying people the opportunity, people of a particular race the
opportunity to attend schools, or for that matter, to make use
of other public facilities that are open to people of a
different race, denies them equality. They're not treated the
same way. An African-American is not treated the same way as a
white person when they're treated that way, so they're denied
equality, and that is based squarely on the language of the
Equal Protection Clause and on the principle, the principle
that was--the magnificent principle that emerged from this
great struggle that is embodied in the Equal Protection Clause.
Griswold concerned the marital right to privacy, and when
the decision was handed down, it was written by Justice
Douglas, and he based that on his theories of--his theory of
emanations and penumbras from various constitutional
provisions, the Ninth Amendment and the Fourth Amendment, and a
variety of others, but it has been understood in later cases as
based on the Due Process Clause of the 14th Amendment, which
says that no person shall be denied due process--shall be
denied liberty without due process of law. And that's my
understanding of it.
And the issue that was involved in Griswold, the possession
of contraceptives by married people, is not an issue that is
likely to come before the courts again. It's not likely to come
before the Third Circuit, it's not likely to come before the
Supreme Court, so I feel an ability to comment, a greater
ability to comment on that than I do on an issue that is
involved in litigation.
And what I have said about Roe is that if the issue were to
come before me if I am confirmed, and I'm on the Supreme Court,
and the issue comes up, the first step in the analysis for me
would be the issue of stare decisis, and that would be very
important. The things that I said in the 1985 memo were a true
expression of my views at the time from my vantage point as an
attorney in the Solicitor General's Office, but that was 20
years ago, and a great deal has happened in the case law since
then. Thornburgh was decided, and then Webster and then Casey
and a number of other decisions. So the stare decisis analysis
would have to take account of that entire line of case law.
And then if I got beyond that, I would approach the
question--and of course in Casey, that was the beginning and
the ending point of the analysis in the joint opinion. If I
were to get beyond that, I would approach that question the way
I approach every legal issue that I approach as a judge, and
that is to approach it with an open mind, and to go through the
whole judicial process which is designed--and I believe
strongly in it--to achieve good results, to achieve good
decisionmaking.
Senator Durbin. This is what troubles me, that you do not
see Roe as a natural extension of Griswold, that you do not see
the privacy rights of Griswold ended by the decision in Roe,
that you decided to create categories of cases that have been
decided by the Court that you will concede have constitutional
protection, but you have left in question the future of Roe v.
Wade.
Yesterday, Senator Specter asked you, as he asked John
Roberts before you, a series of questions about whether or not
you accept the concept that this is somehow a precedent that we
can rely on, that is embedded in our experience, that if it
were changed it would call into question the legitimacy of the
Court, and time and time again he brought you to the edge,
hoping that you would agree, and rarely if ever did you
acknowledge that you would agree. You made the most general
statement that you believe reliance was part of stare decisis.
But let me just ask you this. John Roberts said that Roe v.
Wade is the settled law of the land. Do you believe it is the
settled law of the land?
Judge Alito. Roe v. Wade is an important precedent of the
Supreme Court. It was decided in 1973, so it has been on the
books for a long time. It has been challenged on a number of
occasions, and I discussed those yesterday, and the Supreme
Court has reaffirmed the decision, sometimes on the merits,
sometimes in Casey based on stare decisis, and I think that
when a decision is challenged and it is reaffirmed that
strengthens its value as stare decisis for at least two
reasons. First of all, the more often a decision is reaffirmed,
the more people tend to rely on it, and second, I think stare
decisis reflects the view that there is wisdom embedded in
decisions that have been made by prior Justices who take the
same oath and are scholars and are conscientious, and when they
examine a question and they reach a conclusion, I think that's
entitled to considerable respect, and of course, the more times
that happens, the more respect the decision is entitled to, and
that's my view of that. So it is a very important precedent
that--
Senator Durbin. Is it the settled law of the land?
Judge Alito. It is a--if settled means that it can't be re-
examined, then that's one thing. If settled means that it is a
precedent that is entitled to respect as stare decisis, and all
of the factors that I've mentioned come into play, including
the reaffirmation and all of that, then it is a precedent that
is protected, entitled to respect under the doctrine of stare
decisis in that way.
Senator Durbin. How do you see it?
Judge Alito. I have explained, Senator, as best I can how I
see it. It is a precedent that has now been on the books for
several decades. It has been challenged. It has been
reaffirmed, but it is an issue that is involved in litigation
now at all levels. There is an abortion case before the Supreme
Court this term. There are abortion cases in the lower courts.
I've sat on three of them on the Court of Appeals for the Third
Circuit. I'm sure there are others in other courts of appeals,
or working their way toward the courts of appeals right now, so
it's an issue that is involved in a considerable amount of
litigation that is going on.
Senator Durbin. I would say, Judge Alito, this is a painful
issue for most of us. It is a difficult issue for most of us.
The act of abortion itself is many times a hard decision, a sad
decision, a tragic decision. I believe that for 30 years we
have tried to strike a balance in this country to say it is a
legal procedure, but it should be discouraged. It should be
legal but rare, and we should try to find ways to reduce the
incidence of abortion. But as I listen to the way that you have
answered this question this morning and yesterday, and the fact
that you have refused to refute that statement in the 1985 job
application, I am concerned. I am concerned that many people
will leave this hearing with a question as to whether or not
you could be the deciding vote that would eliminate the
legality of abortion, that would make it illegal in this
country, would criminalize the conduct of women who are seeking
to terminate pregnancies for fear of their lives and the
conduct of doctors who help them. That is very troubling,
particularly because you have stated that you are committed to
this right of privacy.
If I could move to another issue that came up yesterday, I
did not understand your answer to one question and I want to
clarify it. This so-called Concerned Alumni of Princeton. You
noted in your application for a job with the Department of
Justice you belonged to two organizations, the Federalist
Society and the Concerned Alumni of Princeton. I will not get
into Federalist Society, because every time I say those words
they go into a rage that I am somehow guilty of McCarthy-like
tactics, asking who are these people in the Federalist Society?
I will not touch it.
Let me just go to the Concerned Alumni of Princeton. I did
not understand your answer. Your answer said something about
ROTC being discontinued at Princeton University. I know you
were involved in ROTC. I am told that by the time you filled
out this application, ROTC had been restored. I do not believe
you were suggesting that bringing more women and minorities to
Princeton would somehow jeopardize the future of ROTC. I do not
know that that is the case.
But there is a woman named Diane Weeks, who was a colleague
of yours in the New Jersey U.S. Attorney's Office, and she said
that she was troubled by your membership in this group. She
said you had a first-rate legal mind, but here is what she went
on to say. ``When I saw Concerned Alumni of Princeton on that
1985 job application, I was flabbergasted,'' she said. ``I was
totally stunned. I couldn't believe it. CAP made it clear to
women like me that we were not wanted on campus, and he is
touting his membership in this group in 1985, 13 years after he
graduated? He's not a young man by this point,'' she said,
``and I don't buy for a second that he was doing it just to get
a job. Membership in CAP gives a good sense of what someone's
personal beliefs are. I'm very troubled by this, and if I were
in the Senate, I would want some answers.''
I don't think explaining discontinuing ROTC at Princeton is
an answer. What is your answer? Why did you include this
controversial organization as one of your qualifications for
being part of the Reagan administration? As you said, with your
background, with your immigrant background and the fact that
Princeton had just started allowing people of your background
as students, how could you identify with a group that would
discriminate against women and minorities?
Judge Alito. Well, Diane Weeks was an Assistant U.S.
Attorney in the U.S. Attorney's Office in New Jersey, and
somebody that I hired, and one of many women whom I hired when
I was U.S. Attorney, and I think that illustrates my attitude
toward equality for women.
I've said what I can say about what I can recall about this
group, Senator, which is virtually nothing. I put it down on
the `85 form as a group in which I was a member. I didn't say I
was anything more than a member. And since I put it down, I'm
sure that I was a member at the time, but I'm also sure--and I
have racked my memory on this--that if I had participated in
the group in any active way, if I had attended meetings or done
anything else substantial in connection with this group, I
would remember it, and if I had renewed my membership, for
example, over a period of years, I'm sure I would remember
that. So that's the best I can reconstruct as to what happened
with this group.
I mentioned, in wracking my memory about this, I said, what
would it have been, what could it have been about the
administration of Princeton that would have caused me to sign
up to be a member of this group around the time of this
application? And I don't have a specific recollection, but I do
know that the issue of ROTC has bothered me for a long period
of time. The expulsion of the units at the time when I was a
student there, struck me as a very bad thing for Princeton to
do.
Senator Durbin. Do women and minorities have anything to do
with that?
Judge Alito. No, and I did not join this group, I'm quite
confident, because of any attitude toward women or minorities.
What has bothered me about--what bothered me about the
Princeton administration over a period of time was the
treatment of ROTC, and after the unit was brought back, I know
there's been a continuing controversy over a period of years
about whether it would be kept on campus, whether in any way
this was demeaning to the university to have an ROTC unit on
campus, whether students who were enrolled in ROTC could
receive credit for the courses, whether the members of--whether
the ROTC instructors could be considered in any way a part of
the faculty. All of this bothered me, and it is my recollection
that it continued over a period of time.
Senator Durbin. Let me ask you, if I might, to reflect on a
couple other things. You are a Bruce Springsteen fan?
Judge Alito. I am to some degree, yes.
Senator Durbin. I guess most people in New Jersey would be,
they should be.
Judge Alito. There was the movement sometime ago--we don't
have an official State song, and there was a movement to make
``Born to Run'' our official State song, but it didn't quite
make it.
Senator Durbin. We will stick with Lincoln in Illinois, but
I can understand your commitment to Bruce Springsteen. They
once asked him, ``How do you come up with the songs that you
write and the characters that are in them?'' And he said, ``I
have a familiarity with the crushing hand of fate.'' It is a
great line.
I want to ask you about the crushing hand of fate in
several of your decisions. Riley v. Taylor. This cas involved
the murder conviction of an African-American defendant, and the
question was raised as to whether he had a fair trial, and the
people who argued in his defense said that when we take a look
at the various people who were involved in these jury pools in
the murder cases here, we find that the local prosecutors had
eliminated all the African-Americans in four murder trials that
had taken place during the year that led up to his trial. And
they raised the question in his case whether there had been a
conscious effort to eliminate African-American jurors in this
case involving an African-American defendant.
And you dismissed the statistical evidence of these all-
white juries, and you made a statement that said the
significance of an all-white jury was as relevant as the fact
that five of the past six Presidents of the United States have
been left-handed.
That is a troubling analogy, and I am not the only one
troubled. Your colleagues on the Third Circuit were troubled as
well. Here is what they said: ``The dissent''--your dissent--
``has overlooked the obvious fact that there is no provision in
the Constitution that protects persons from discrimination
based on whether they are right-handed or left-handed. To
suggest any comparability to striking of jurors based on their
race is to minimize the history of discrimination against
prospective black jurors and black defendants.''
Why did you use that analogy that apparently is so
inappropriate?
Judge Alito. Well, the analogy went to the issue of
statistics and the use and misuse of statistics and the fact
that statistics can be quite misleading. Statistics are very
powerful, but statistics can also be very misleading, and
that's what that was referring to. There's a whole--I mean,
statistics is a branch of mathematics, and there are ways to
analyze statistics so that you draw sound conclusions from them
and avoid erroneous conclusions from them. Sometimes when you
see a pattern, it's the result of a cause, and sometimes when
you see something that looks like it might be a pattern, it's
the result of chance.
Riley was a very, very difficult case, and I can tell you I
struggled over that case because the issue of racial
discrimination in the criminal justice system is an issue of
enormous importance. Obviously, it's very important for the
defendant. It's important for the society so that everybody
knows that everyone in this country is treated equally
regardless of race. And it's important for law enforcement,
because I know from years as a prosecutor that nothing is a
greater poison for law enforcement than even the slightest hint
of unfairness.
The issue of racial discrimination in the jury had to be
viewed by our court and by me under the habeas corpus statute
that Congress passed, and that gave us an important role to
play, but a very limited role. The Pennsylvania--and what the
habeas corpus statute is that if the State courts have decided
a question on the merits and they've applied the correct legal
standard, the correct constitutional standard, we can't
authorize a granting of a writ of habeas corpus unless they
were unreasonable. It's not enough for us to say, ``We don't
agree with it.'' We have to say, ``You were unreasonable.''
Now, I think seven members of the Pennsylvania judiciary--
well, I think there were more. There was the judge who heard
the State habeas case and the Pennsylvania Supreme Court, and
the Pennsylvania Supreme Court, as I recall, was unanimous on
the issue that there hadn't been racial discrimination in the
selection of the jury in the case.
Then the case came up to us, and the issue was whether the
State courts were unreasonable in finding that the particular
peremptory challenges at issue in this case were not based on
race. And it was a tough question, but I didn't see how we
could overturn what they had done under the habeas standard.
Now--
Senator Durbin. I would just say, Judge, in many of these
tough questions as I read through your cases, you end up ruling
in favor of established institutions and against individuals.
Let me tell you another one, Pirolli v. World Flavors. Remember
this case? A mentally retarded individual, Kenneth Pirolli,
physically harassed at his workplace, subjected to a hostile,
abusive work environment, and sexually assaulted by his
coworkers. According to his deposition testimony, he said they
attempted to rape him.
I could read to you what is in that record here, but it is
so graphic and it tells in such detail the sexual assault that
he was subjected to that I am not going to read it into the
record. But I bet you remember it.
And when it came to whether or not he should have a trial,
as to whether he was entitled to bring his case before a jury,
you said no, stand by the summary judgment, don't take this to
a jury. You dissented from the majority position here. And the
reason you dissented was, I think, significant. It wasn't about
Kenneth Pirolli or the merits of his case. It was about the
conduct and efforts of his lawyer.
You noted the fact that his lawyer had not adequately
provided citations in his brief to places in the record
describing the harassment. So you held Kenneth Pirolli
responsible for the fact that his lawyer didn't do a good job--
at least in your view--and denied him his day in court. How do
you explain that crushing hand of fate on this man who was a
victim of sexual harassment?
Judge Alito. Well, Senator, the district court thought that
the defendant in that case was entitled to summary--was
entitled to summary judgment, and so I think that says
something about the facts of the case and whether it was a
particularly strong case.
There's a very important principle involved in the
appellate practice, and I think it goes with the idea of
judicial self-restraint. It is that certain things are to be
decided at certain levels in the court system, and that
requires that parties raise issues in the trial court; and that
if they do not raise the issue in the trial court, then absent
some extraordinary circumstances, they shouldn't be able to
raise the issue on appeal. And that was the principle there.
Now, this was not a criminal case. In a criminal case,
there's a constitutional right to counsel, and so a person can
claim ineffective assistance of counsel. And we treat that
issue differently in criminal cases than we do in civil cases.
Senator Durbin. I would just say that you are arguing on
the merits of the district court decision. Your statement in
dissent criticized his lawyer for the brief that they presented
to your court. That seems to me to be an unfair treatment of a
man who I think deserved a day in court.
Let me ask you about another group looking for a day in
court, the RNS Services v. Secretary of Labor case that I
referred to in my opening statement. It is a timely case. It is
about mine safety. You know what happened in West Virginia a
few days ago and yesterday in the State of Kentucky where there
are serious questions being raised about whether there is
adequate mine safety. And in this case, there was a question as
to whether or not the Federal and State mine safety provisions
applied to a company in a certain activity. And you concluded
they did not apply. You concluded that you would narrowly
construe the statute passed by Congress, and in construing it
in that way, that the requirements of inspecting this mine
location would not be subject to Federal law.
Again, you dissented and you ruled on the side of the
company, on the side of the established institution, against
the coal miners and against the workers in this circumstance.
It is a recurring pattern. The crushing hand of fate here seems
to always come down against the workers and the consumers and
in favor of these established institutions and corporations.
How would you explain the fact that you would so narrowly
construe a statute when you knew that the lives and safety of
coal miners were at stake?
Judge Alito. The facility that was involved in that case
was not a mine as a lay person would think of a mine. It wasn't
an underground facility. It wasn't like the facility in West
Virginia where the terrible accident occurred a few days ago.
It was basically a pile of coal that was being loaded onto
trucks to be transported to another place. The definition of a
mine under the Federal law is very broad, and it's not limited
to what ordinary people would think of as a mine. And there was
an argument that this facility, which, as I said, as I recall,
was basically a big pile of coal on top of the ground and coal
was being hauled away to a cogeneration facility. Is that a
mine? An ordinary person would look at that and say that's not
a mine, that's a pile of coal.
But the issue in the case was the kind of technical issue
of interpretation that we get all the time, and the question
was is this a mine in the sense of the law, and I thought it
was not a mine in the sense of the law.
Now, that conclusion, I don't believe, would mean that this
facility would be spared safety regulation at either the
Federal or local level. It's been a long time since I worked on
that case, but I would imagine that if the facility is not
governed by the Federal mining laws, it would be covered by
OSHA, by the Occupational Safety and Health Administration, and
perhaps by State law. So the issue would not be whether this
facility would be allowed, which was not a mine in the ordinary
sense, would be allowed to operate in an unsafe fashion. It was
which body of laws and regulations would govern the facility.
Senator Durbin. Judge, I would say that your opinion did
not prevail. The two other judges, both Reagan appointees, who
saw this case on the side of the workers, understood that the
wording of the law is as follows: ``Congress declares that the
first priority and concern of all in the coal or other mining
industry must be the safety and health of its most precious
resource--the miner.'' And instead of taking the obvious
interpretation that these were people working in the mining
industry, even if they were outside of the underground mine and
the danger that it presents, you drew this statute as narrowly
as you could--construed it as narrowly as you could to take the
company position here that the Federal Mine Safety and Health
Administration did not have jurisdiction.
I find this as a recurring pattern, and it raises a
question in my mind whether the average person, the
dispossessed person, the poor person who finally had their day
in court and may make it all the way through the process to the
Supreme Court, are going to be subject to the crushing hand of
fate when it comes to your decisions. They have been many times
at the Third Circuit, and that is a concern which I will
continue when we have further questions in the next round.
Thank you, Mr. Chairman.
Chairman Specter. Do you care to respond, Judge Alito?
Judge Alito. Yes, could I just say a couple of words? That
case was a case of statutory interpretation and applying the
statute, and that's how I thought it came out. There have been
many other cases that I have worked on on the court of appeals
where I have come out in favor of the small person who was
challenging a big institution, and I could mention a number of
them.
Let me just mention Shore v. Regional High School because I
think it has some relation to the Pirolli case, which you
mentioned. This was a case in which a high school student had
been bullied unmercifully by other students in his school
because of their perception of his sexual orientation. He had
been bullied to the point of attempting to commit suicide, and
his parents wanted to enroll him at an adjacent public high
school, and the school board said, no, you can't do that. And I
wrote an opinion upholding their right to have him placed in a
safe school in an adjacent municipality.
That is just one example, but all of these cases involve
what judges are supposed to do, which is to take the law and
apply it to the particular facts of the case that is before
them.
Chairman Specter. Thank you very much, Judge Alito.
Senator Brownback?
Senator Brownback. Thank you very much, Mr. Chairman.
Good morning, Judge Alito, Mrs. Alito, family members. Good
to have you here.
I have got a number of areas I would like to ask you
questions about, and I am hopeful we can get through them and
maybe reduce the need of time in a second round, which would
probably be pleasing to your ears.
I want to first go at this area, because it seems to keep
coming up, that I think is really not applicable and not
reflective of your record that you always take the side of the
big institution and against the little guy, as you just stated.
But then I want to get into a number of areas of constitutional
law, some of which you have written on, religious freedom type
cases, takings cases. I would like to get into some of these
areas.
But I want to enter into the record, Mr. Chairman, a letter
from a former law clerk of yours, David Walk, dated January 6,
2006. David worked with you in the New Jersey U.S. Attorney's
Office. I don't know if you remember David or not.
Judge Alito. I do. He was a fine--
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Brownback. Thank you.
He is a lifelong Democrat, former member of the ACLU, and
talks about how fair you were to everybody's rights. But then
he cites the case of Franklin Igbonwa. This was a Nigerian set
to be deported for drug dealing who had testified against other
Nigerian drug dealers and was fearful of being deported, that
he would be killed once back in Nigeria. The other two judges
said his case--he shouldn't be believed on the face of it, and
you said he should and that the trial court should have given
more deference to this Nigerian to be deported. This was
somebody that David Walk represented. Talk about a little guy
in a case, and that is one that is cited in this particular
record and letter that I would hope my colleague from Illinois
could take a chance at, because it is a legitimate point of
view. And saying, well, it looks like you always take one side
or the other, here is where another side was taken.
And then here is a letter from another individual who
worked with you, Cathy Fleming, lifelong Democrat, president-
elect, National Women's Bar Association, gives an unqualified
endorsement of you. She says, ``By providing my credentials as
an outspoken women's rights advocate and liberal-minded
criminal defense attorney, I hope you will appreciate the
significance of my unqualified and enthusiastic recommendation
of Sam Alito for the Supreme Court.''
I think one can kind of look in the past and try to say,
well, OK, there is this problem, there is that, but then when
people that know you well put their names to letters saying
differently, I think that's also something we should consider,
and I would ask that that letter be put into the record as
well.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Brownback. Thank you.
Judge Alito, the Supreme Court has gotten a number of
things wrong at times, too. That would be correct, and the
answer when the Court gets things wrong is to overturn the
case. That is the way it works. Isn't that correct?
Judge Alito. Well, when the Court gets something wrong and
there's a prior precedent, then you have to analyze the
doctrine of stare decisis. It is an important doctrine, and I
have said a lot about it, but--
Senator Brownback. Wait, let me just ask you, was Plessy
wrong, Plessy v. Ferguson?
Judge Alito. Plessy was certainly wrong.
Senator Brownback. OK, and you have gone through this.
Brown v. Board of Education, which is in my hometown of Topeka,
Kansas. I was there last year at the dedication of the
schoolhouse. Fifty years ago, that overturned Plessy. Plessy
had stood on the books since 1896. I don't know if you knew the
number. And I have got a chart up here. It was depended upon by
a number of people for a long period of time. You have got it
sitting on the books for 60 years, twice the length of time of
Roe v. Wade. You have got these number of cases that considered
Plessy and upheld Plessy to the dependency. And yet Brown comes
along, 1950s case, poor little girl has to walk by the all-
white school to go to the black school in Topeka, Kansas. And
the Court looks at this and they say unanimously that is just
not right.
Now, stare decisis would say in the Brown case you should
uphold Plessy. Is that correct?
Judge Alito. It certainly would be a factor that you would
consider in determining whether to overrule it.
Senator Brownback. But obviously--
Judge Alito. A doctrine that you would consider.
Senator Brownback. Obviously, Brown over turned it, and
thank goodness it did. Correct?
Judge Alito. Certainly.
Senator Brownback. It overturned all these super duper
precedents that had been depended upon in this case because the
Court got it wrong in Plessy. Is that correct?
Judge Alito. The Court certainly got it wrong in Plessy,
and it got it spectacularly wrong in Plessy, and it took a long
time for that erroneous decision to be overruled.
One of things I think that people should have understood is
that separate facilities, even if they were absolutely equal in
every respect, even if they were identical, could never give
people equal treatment under the law.
Senator Brownback. They don't.
Judge Alito. I think they should have recognized that. But
one of the things that was illustrated in those cases--and
Sweatt v. Painter, the last one on the list brought that out--
was that, in fact, the facilities, the supposedly equal
facilities were never equal, and the continuing series of
litigation that was brought by the NAACP to challenge racial
discrimination illustrated--if the illustration was needed, the
litigation illustrated that, in fact, the facilities that were
supposedly equal were not equal. And that was an important
factor, I think, in leading to the decision in Brown v. Board
of Education
Senator Brownback. I want to give you another number, and
that is, in over 200 other cases, the Court has revisited and
revised earlier judgments. In other words, in some portion or
in all of the cases, the Court got it wrong in some 200 cases.
And thank goodness the Court is willing to review various
cases.
I want to give you an example of a couple, though, that the
Court hasn't reviewed yet that I think are spectacularly wrong.
The 1927 case of Buck v. Bell, I don't know if you are familiar
with that case. The Court examined a Virginia statute that
permitted the sterilization of the mentally impaired. Carrie
Buck, a patient at the so-called Virginia State Colony for
Epileptics and Feeble Minded, was scheduled to be sterilized
after doctors alleged she was a genetic threat to the
population due to her diminished mental capacity. Buck's
guardian challenged the decision to have Carrie sterilized all
the way to the Supreme Court, but in an 8-1 decision, the Court
found that it was in the State's interest to have her
sterilized.
The majority opinion written by Justice Oliver Wendell
Holmes said, ``We have seen more than once that the public
welfare may call upon the best citizens for their lives. It
would be strange if it could not call upon those who already
sap the strength of the State for these lesser sacrifices,
often not felt to be such by those concerned, in order to
prevent our being swamped with incompetence.''
Clearly, some precedents are undeserving of respect because
they are repugnant to the Constitution. Isn't Plessy repugnant
to the Constitution?
Judge Alito. It certainly was repugnant to the Equal
Protection Clause.
Senator Brownback. And the vision of human dignity, isn't
Buck and those sort of statements by Oliver Wendell Holmes
repugnant to the Constitution?
Judge Alito. I think they are repugnant to the traditions
of our country. I don't think there is any question about that.
Senator Brownback. I will give you another case, the
Korematsu v. United States case, a 1944 case. World War II
broke out following Japanese attacks on Pearl Harbor. Feelings
spread that Japanese-Americans, both naturalized and those born
in the United States, might not be loyal to the United States
and should be removed from the West Coast. So great was the
fear that even the esteemed writer Walter Lippmann stated that,
``Nobody's constitutional rights include the right to reside
and do business on a battlefield. There is plenty of room
elsewhere for him to exercise his rights.''
President Roosevelt signed an Executive order removing
them. Korematsu contested the constitutionality, Fred Korematsu
did, of his internment. In Korematsu v. the United States, the
Supreme Court held that military necessity justified the
internment program and that Fred Korematsu had no protection
against relocation under the Constitution.
Of course, that was later overturned--excuse me, that was
never overturned. In 1948, Congress enacted the Japanese
American Evacuation Claims Act to provide some monetary
compensation. In 1980, Congress again revisited the case. In
1988, Congress passed legislation apologizing for the
internment and awarded each survivor $20,000. In 1999, Fred
Korematsu was awarded the Presidential Medal of Freedom, the
highest civilian honor that anyone can receive. Justice has not
been done because Korematsu remains on the books. It is still
on the books.
Roe v. Wade. You have had every question on that, but I
want to point out its difficulty. My colleagues on the other
side look at this as completely settled law, but let's see what
the legal experts say about how settled it is.
Laurence Tribe, who will be here to testify, I believe,
probably against you in a little bit. Let's see what he says, a
professor of law at Harvard: ``One of the most curious things
about Roe is that, behind its own verbal smokescreen, the
substantive judgment on which it rests is nowhere to be
found.'' Settled law? Super duper precedents? Laurence Tribe
has some questions about it.
Justice Ruth Bader Ginsburg: ``Roe, I believe, would have
been more acceptable as a judicial decision if it had not gone
beyond a ruling on the extreme statute before the Court. Heavy-
handed judicial intervention was difficult to justify and
appears to have provoked, not resolved, conflict.'' Provoked,
not resolved, conflict--one of your potential colleagues says.
Edward Lazarus, former clerk to Chief Justice Harry
Blackmun, who wrote Roe: ``As a matter of constitutional
interpretation and judicial method, Roe borders on the
indefensible. I say this as someone utterly committed to the
right to choose, as someone who believes such a right was
grounded elsewhere in the Constitution, instead of where Roe
placed it, and as someone who loved Roe's author like a
grandfather.'' Settled law? Edward Lazarus has some questions
about it being settled.
Let's look at John Hart Ely, former Dean of Stanford Law
School, excellent law school in the country, one of the top law
schools in the country: Roe v. Wade ``is not constitutional law
and gives almost no sense of an obligation to try to be. What
is frightening about Roe is that this super-protected right is
not inferable from the language of the Constitution, the
Framers' thinking respecting the specific problem in issue, any
general value derivable from the provisions they included, or
the Nation's governmental structure.'' John Hart Ely. Do you
think he thinks Roe is settled law? Not constitutional and
gives no sense of an obligation to try to be.
Alan Dershowitz, professor of law, Harvard Law School, one
of the top law schools in the country. It is not Princeton,
but... Roe v. Wade and Bush v. Gore ``represent opposite sides
of the same currency of judicial activism in areas more
appropriately left to the political process. Judges have no
special competency, qualifications, or mandate to decide
between equally compelling moral claims, as in the abortion
controversy. Clear governing constitutional principles are not
present in either case.'' Settled law? Super duper precedents?
I think there are places where the Court gets it wrong, and
hopefully they will continue to be willing to revisit it.
Now I want to look at a couple of areas of law in addition
to this. Your view of the Constitution--and yesterday you hit
at this, I thought, on some of the edges, but I just want to
get your thoughts of how you view the Constitution, how you
would review it. There are these different schools of thought
on this of strict constructionist, living document,
originalist, and there are several others that float around out
there. How do you generally look at the Constitution? And I am
aware yesterday you were saying that some provisions are very
clear and some are not, and you seem to apply a different set
of viewpoints on those of the Constitution. Could you
articulate your view of how you look and interpret the
Constitution?
Judge Alito. First of all, Senator, I think the
Constitution means something, and I don't think it means
whatever I might want it to mean or whatever any other member
of the judiciary might want it to mean. It has its own meaning,
and it is the job of a judge, the job of a Supreme Court
Justice, to interpret the Constitution, not distort the
Constitution, not add to the Constitution or subtract from the
Constitution.
In interpreting the Constitution, I think we should proceed
in the way we proceed in interpreting other important legal
authorities. In interpreting statutes, for example, I think we
should look to the text of the Constitution and we should look
to the meaning that someone would have taken from the text of
the Constitution at the time of its adoption. But I think we
have to recognize that the Constitution is very different from
statutes in some important respects. Statutes are often very
detailed, and they generally don't exist without revision for
very long periods of time. The Constitution was adopted to
endure throughout the history of our country, and considering
how long our country has existed, it's been amended relatively
few times. And the magic of that, I think, is that it sets out
a basic structure for our Government and protects fundamental
rights. But on a number of very important issues, I think the
Framers recognized that times would change, new questions would
come up, and so they didn't purport to adopt a detailed code,
for example, governing searches and seizures. That was the
example I gave yesterday, and I will come back to it. They
could have set out a detailed code of search and seizure. They
didn't do that. They said that the people are protected against
unreasonable searches and seizures, and they left it for the
courts--and, of course, the legislative body can supplement
this--to apply that principle to the new situations that come
up.
Now, when that is done, that doesn't amount to an amendment
of the Constitution or a changing of the Constitution. It
amounts to--it involves the application of a constitutional
principle to the situation at hand.
Senator Brownback. Let me go to a specific area you have
written quite a bit about, and that is on religious liberties
and free exercise. And I have looked at these cases, and this
is going to be an active area of law in front of the Supreme
Court. It has been for the last 40 years.
You wrote the case of ACLU v. Schundler, a Third Circuit
case, considered--it is an ACLU challenge to religious displays
erected by Jersey City on the Plaza of City Hall. Jersey City
for decades had had holiday displays of a menorah and Christmas
tree. Litigation resulted in permanent pulling of this. The
city came back and said, OK, if that is not good enough, we
will put a nativity scene, a menorah, a Christmas tree, Frosty
the Snowman, Santa Claus, Kwanzaa symbols, and signs explaining
the display. So, OK, if two is not enough, we will add more
into it, and they were again challenged by the ACLU. The
district court found no constitutional violation.
A panel of the Third Circuit, not including you, reversed
that decision. The panel found no basis for the demystification
approach, as they put it, and expressed skepticism as to
constitutional display.
On remand, the district court held that there was a
constitutional violation. The city appealed. You sat on the
panel that heard that appeal. In a 2-1 decision, you upheld the
constitutionality of the modified display.
In your decision, you specifically cited Justice O'Connor
and two particular issues regarding excessive entanglement with
religious institutions and Government endorsement or
disapproval of religion. Because Justice O'Connor used these
factors to uphold similar displays in prior cases, you applied
them to your upholding in that case. That is a correct
interpretation. Is that correct, Judge Alito?
Judge Alito. Yes, it is, Senator.
Senator Brownback. Because these are coming up so much in
front of the Court, are these types of displays, you feel,
generally constitutionally permissible?
Judge Alito. Well, this is an area in which the Supreme
Court has handed down several decisions, and like a lot of
the--like a number of the issues that the Court has addressed
under the Establishment Clause, it has drawn some fairly fine
lines. The first case involving a display of this nature was
the Pawtucket, Rhode Island, display that was involved in Lynch
v. Donnelly, and it was a display that was similar to the
display in Jersey City. It included both religious and secular
symbols. And they found that that was not a violation.
Senator Brownback. I want to jump in here because I have
got several ways I want to. When I read your opinions, what I
hear you to write is you would rather have a robust public
square than a naked public square, that you think there is room
for these sorts of displays in the public square.
Judge Alito. Well, that was exactly what Jersey City had
decided in that case, and Jersey City said: We are one of the
most religiously diverse, ethnically diverse, racially diverse
communities you will find anywhere in the country. This is
right across the New York harbor from the Statue of Liberty and
from Ellis Island, and it is still an entry point for a lot of
people coming into the country. And so they had--over the
course of the year, at the appropriate time, they had a
Christmas display, they had a display of a menorah--on that
particular year, Hanukkah was early in the month of December,
so the display, the menorah was up at a different point. They
had a display--they had celebrations for Muslim festivals, for
Hindu festivals, for Buddhist festivals, for Latino festivals,
for festivals concerning the many ethnic groups in the
community. And their view was that this is the way we should
show that all of these groups are valuable parts of our
community and express our embracing of them. And this display,
they said, reflected that philosophy and applying the
precedents that the Supreme Court had provided in this area,
the Pawtucket case and a later case involving a display in
Pittsburgh, Judge Rendell and I, who were the judges in the
majority on that case, said this is constitutional, this is
consistent with the Establishment Clause.
Senator Brownback. Well, and that is what--as we have had
this 40 years of cases, I really hope we can have a public
square that celebrates and not that it has got to be completely
naked to views, and I appreciate that.
You wrote in a free exercise case, C.H. v. Olivia, a case
in which a child sued through his parents for violation of his
free speech and free exercise rights, when his school removed
and repositioned a poster he had made of a religious figure
that was important to him. It was a picture of Jesus. The
poster was part of an assignment which students were instructed
to show something for which they were thankful. The district
court granted judgment on the pleadings in favor of the
defendant, the school district. The Third Circuit affirmed. You
dissented in that opinion. Can you elaborate on your reasoning
in that particular opinion? Do you remember the case?
Judge Alito. Yes, Senator, I do. Justice O'Connor pointed
out something that's very critical in this area. She said there
is a big difference between Government speech endorsing
religion and private religious speech, and this case--and
private religious speech can't be discriminated against. It has
to be treated equally with secular speech. And in this case,
this involved a student who--and there were two incidents. One
involved reading. The students in the class were told that if
they could read at a certain level, they would have--their
reward would be to be able to read their favorite story to the
class. And this student satisfied those requirements, and the
student wanted to read a very simplified version of the story
of Jacob and Esau to the class. And the teacher said, ``No, you
can't read that to the class. You can read that privately to me
off in a corner.''
And then Thanksgiving was coming along, and the students
were told, ``Draw a picture of something that you're thankful
for,'' and I guess the teacher expected they were going to draw
pictures of football games and turkeys and things like that.
But this student drew a picture of Jesus and said, ``That's
what I'm thankful for.'' And the teacher put all the other
pictures up in the hall, but would not put this student's
picture up in the hall because of its religious content.
And that, we found, was a violation of this principle that
you have to treat religious speech equally with secular speech.
If you ask a student to say something about a topic, what are
you thankful for, and the student says something that fits
within the topic that the student was asked to talk about, then
you can't discriminate against one kind of speech or another.
Senator Brownback. I thought it was a very interesting
stance, and I think appropriate, that you took, and I wanted
to--obviously very active areas of the law that we have.
I want to look at the issue of checks and balances on the
Federal court. It is a very active area here in Congress as a
lot of people across the country and certainly Members of
Congress have grown the feeling that we can rule however--we
can do whatever we want to here, but wait until the Court
decides, that it is the Court that have moved beyond judicial
restraint. I asked this of John Roberts, and I asked what is--
the checks and balances on Congress are obvious, the President
can veto a bill, a court can declare something
unconstitutional, checks and balances executive branch are
clear, they can be challenged, their actions, in the court, the
court can say the President can't do that, we cannot
appropriate the money from here. We have got checks and
balances, and people are well known. Any high school government
student would know that.
Checks and balances on the Court. When I talked with John
Roberts about this, he said basically the only check and
balance is judicial restraint. It is what the Court restrains
itself in. And yet you have within the Constitution a provision
that is there that I asked him about that I want to ask you
about. Article III, Section 2 goes, ``In all cases''--excuse
me. ``In all the other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and
fact,'' and then it goes on with this interesting Exceptions
Clause, ``with such exceptions, and under such regulations as
the Congress shall make.'' The last phrase known as the
Exceptions Clause.
What do you believe is Congress's power to define the
jurisdiction of the Supreme Court under the Exceptions Clause?
Judge Alito. Well, the Exceptions Clause obviously gives
Congress the authority to define the appellate jurisdiction of
the Supreme Court, and it can provide for various avenues by
which cases get to the Supreme Court, and that has changed over
the years.
There's been a controversy, never resolved, about the exact
scope of the authority. It came up in Ex Parte McCardle in the
post-Civil War era, and it has been raised by--it has been
discussed by scholars in subsequent years, and there are
several schools of thought in the question about whether it
would be consistent with the Constitution for Congress to
eliminate jurisdiction in the Supreme Court over a particular
type of case, that's an unresolved issue that the scholars have
addressed, and some argue that that falls within the Exceptions
Clause, and some argue that it would be inconsistent with other
provisions of the Constitution.
Senator Brownback. What I see taking place in this country,
as the Court gets more and more involved in tough political
issues, is you are going to be pressing other bodies then to
say, ``Look, we believe these decisions should be here. We
believe the issues on the competing interests of an abortion,
the mother and the child, should be decided by legislative
bodies,'' but the Court said no. Issue of marriage is coming
through the court system right now. As the Court keeps getting
involved in these areas, I think you are going to see these
sorts of constitutional issues being explored more and more.
Marriage case I want the take you to because that is making
its way through the Federal Court. Forty-five of our 50 States
have deemed marriage being between the union of a man and a
woman. The State of Nebraska passes a State constitutional
amendment, 70 percent of the people voting for it, saying that
marriage is the union of a man and a woman. Yet a Federal judge
in that case threw out the State constitutional amendment on
novel constitutional grounds, and it is now making its way up
through the system. The Congress has passed the Defense of
Marriage Act, DOMA, passed overwhelmingly, signed into law by
President Clinton, basically did two things. First establishes
for purposes of Federal law marriage would be defined as the
union of a man and a woman, and second, it would provide that
no State would be forced to recognize a marriage entered into
in another State. A number of legal scholars believe that this
second part violates the Full Faith and Credit Clause of the
Constitution.
Judge Alito, this case is coming forward, and will probably
be resolved in the Federal courts if it is not resolved by the
Congress through constitutional amendment. What is your
understanding of the meaning of the Full Faith and Credit
Clause, and does this apply to the institution of marriage
which has been traditionally an issue and an area left up to
the States?
Judge Alito. Well, several constitutional doctrines seem to
be implicated by the matters that you discussed. The Full Faith
and Credit Clause in general means that one State must honor
judgments that are issued by a court of another State, and it's
an important part of the process. It is an important part of
the Federal system, so that we don't have worrying decisions in
different States. It is not my--I have not had cases involving
this, but there are--the doctrine has a certain, has certain
boundaries to it. There are exceptions, and it covers certain
areas and doesn't cover other areas, and a challenge to the
Defense of Marriage Act under the Full Faith and Credit Clause
would call into question the precise scope of the doctrine.
And I believe that scholars have expressed differing views
about how it would apply in that situation, and that's an issue
that may well come up within the Federal courts, almost certain
to do so.
Senator Brownback. Yes. And I know you cannot express on
it. One last thing I would like to get into just very briefly
is the Takings Clause in the Kelo case that was in a
neighboring circuit to yours, Kelo v. City of New London, where
private property was taken by a private--another private
group--private property was taken by a public group and given
to another private group. Judge O'Connor wrote eloquently in
her dissent, ``Nothing is to prevent the State from replacing
any Motel 6 with the Ritz Carlton, or any home with a shopping
mall, or any farm with a factory now.''
I just conclude by putting that in front of you, saying
that this is one that people have relied upon for a long time,
that you could not take private property to another private
individual for public use, and I hope that is one that the
Court will end up reviewing at some point in time.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Brownback.
Senator Coburn?
Senator Coburn. Thank you, Mr. Chairman. Good morning, long
day.
I would like to put a few things into the record if I may.
One is just a list of cases where Judge Alito ruled for the
little guy. There has been a lot made, and here is a list of
nine cases with specifics where he in fact--one of these I
think he mentioned, but not the others. And I would like
unanimous consent to--
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Coburn. Actually, there are 15 cases.
I also want to go back and quote from somebody who was a
member of CAP, and this is a Judge Napolitano. He is a
commentator on one of the news shows. I would like his
statements put into the record from yesterday, where he
clarified what CAP was about, and clarified the interest of
ROTC at Princeton, and the fact that that was one of the
leading reasons that that organization was formed, so I would
like for those to be admitted as well.
As you know, I am not an attorney. Sometimes it is very
disadvantageous on this panel, but at times it is advantageous.
I have this little thing that I have to depend on, and I kind
of read it for what it says. As you talk about stare decisis--
is that mentioned anywhere in here?
Judge Alito. It is not expressly mentioned in the
Constitution.
Senator Coburn. It is actually a procedure of common
English law, correct?
Judge Alito. That's its origin, yes.
Senator Coburn. That is its origin, and we use that as a
tool for working with the Constitution. Can you recall the
number of times that precedents have been reversed by the
Supreme Court?
Judge Alito. I don't know the exact figure, Senator.
Senator Coburn. I think it is around 170 some times,
affecting some 225 cases, I believe. That is close. That may
not be exactly accurate. So, in fact, it is a tool used to help
us with the law, but our Founders did not say you have to use
stare decisis in this, did they?
Judge Alito. No, they didn't. They conferred the judicial
power on the judiciary, and I think that contemplated that the
Federal judiciary would be permitted to proceed with--in
accordance with fundamental judicial procedures as they had
been known--
Senator Coburn. At the time.
Judge Alito. At the time.
Senator Coburn. And Article III, section 2 really
delineates the scope for the courts in this country, and what
it says is, ``All cases in law and equity arising under this
Constitution, the laws of the United States and treaties made,
or which shall be made under their authority.'' So that really
gives us the scope under Article III, section 2. I was
interested when Senator Kyl asked you yesterday about foreign
law. That is something extremely disturbing to a lot of
Americans, that many on the Supreme Court today will reference
or pick and choose the foreign law that they want to use to
help them make a decision to interpret our Constitution, where
in fact, the oath of office mentions no foreign law. Matter of
fact it says the obligation is to use the United States law,
the Constitution and the treaties, and that is exactly what
Article III, section 2 says. So there is no reference at all to
foreign law in terms of your obligations or your
responsibility, and matter of fact, the absence of it would say
that maybe this ought to be what we use, and the codified law
of the Congress and the treaties rather than foreign law.
The question I have for you--and I could not get Judge
Roberts to answer it because of the conflict that might occur
afterwards, but I have the feeling that the vast majority of
Americans do not think it is proper for the Supreme Court to
use foreign law. I personally believe that that is an
indication of not good behavior by a Justice, whether it be a
Justice at a appellate division, or a magistrate, or a Supreme
Court Justice. I just wondered if you had any comments on that
comment.
Judge Alito. Well, I don't think that we should look to
foreign law to interpret our own Constitution. I agree with you
that the laws of the United States consist of the Constitution
and treaties and laws, and I would add regulations that are
promulgated in accordance with law. And I don't think that it's
appropriate or useful to look to foreign law in interpreting
the provisions of our Constitution. I think the Framers would
be stunned by the idea that the Bill of Rights is to be
interpreted by taking a poll of the countries of the world. The
purpose of the Bill of Rights was to give Americans rights that
were recognized practically nowhere else in the world at the
time. The Framers did not want Americans to have the rights of
people in France or the rights of people in Russia, or any of
the other countries on the continent of Europe at the time.
They wanted them to have the rights of Americans, and I think
we should interpret our Constitution--we should interpret our
Constitution. I don't think it's appropriate to look to foreign
law.
I also don't think that it's--I think that it presents a
host of practical problems that have been pointed out. You have
to decide which countries you are going to survey, and then it
is often difficult to understand exactly what you are to make
of foreign court decisions. All countries don't set up their
court systems the same way. Foreign courts may have greater
authority than the courts of the United States. They may be
given a policymaking role, and therefore, it would be more
appropriate for them to weigh in on policy issues. When our
Constitution was being debated, there was a serious proposal to
have members of the judiciary sit on a council of revision,
where they would have a policymaking role before legislation
was passed, and other countries can set up their judiciary in
that way. So you'd have to understand the jurisdiction and the
authority of the foreign courts.
And then sometimes it's misleading to look to just one
narrow provision of foreign law without considering the larger
body of law in which it's located. That can be--if you focus
too narrowly on that, you may distort the big picture, so for
those reasons, I just don't think that's a useful thing to do.
Senator Coburn. It actually undermines democracy because
you get a pick and choose, and the people of this country do
not get a pick and choose that law, as people from a different
country. So it actually is a violation of the Constitution, and
to me, I very strongly and adamantly feel that it violates the
good behavior, which is mentioned as part of the qualifications
and the maintenance of that position.
I am sorry Senator Durbin left. I wanted to razz him a
little bit. You have taken quite a bit of criticism on what
things that you have written and said in 1985, but I want to
put forward, for 45 years Senator Durbin was adamantly pro-
life, and he wrote multiple, multiple letters expressing that
up until 1989. He is a very strong advocate for the abortion
stance and a free right to choose, but I think it is important
that the American people--if he has the ability to change his
mind on something, something he wrote in 1989, certainly you
have the ability to say something was ineptly put. This is just
Senator Durbin, I am teasing him a little bit, but I think it
is important that people recognize people can change their
mind. I continue to believe the Supreme Court's decision in Roe
v. Wade should be reversed. There are other Members that are
adamantly pro-abortion, pro the destruction of human life today
that have changed their mind, changed their position. So it is
hard to be critical of you and on something you had written in
1985, when many of us have backtracked on things that we have
said through the years. So I think it puts a little bit of
perspective into where we are going.
I want to spend just a minute, if I can, yesterday during
Senator Feinstein's questioning there was some discussion about
the Health Exception to any regulations pertaining to abortion.
And on January 22nd, when Roe was decided, the Court also
decided Doe v. Bolton, and in that case the Court ruled that a
woman's right to abortion cannot be limited by the State if
abortion was sought for reasons of maternal health. As a
practicing physician, I agree with that. I have actually
performed abortions on women who were going to die if they did
not have an abortion, so the choice was somebody alive versus
losing both.
The Court defined health as all factors, physical,
emotional, psychological, familial, and a woman's age relevant
to the well-being of the patient. This exception effectively
expanded the right to abortion for any reason through all the
entire pregnancy. Since that time, States have been trying to
find ways to effectively regulate abortion without intruding on
this health exception, but it has proven nearly impossible. The
absence of knowledge is something that Roe v. Wade, which I
believe was wrongly decided, has hurt us immensely in this
country, and the absence of informed consent on abortion has
hurt us immensely.
Mr. Chairman, I would like to enter into the record a study
published, a 35-year longitudinal study, which was just
released this January from New Zealand, that followed women,
600 women for 35 years from the time of the abortion, that
studied the ill health effects of--
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Coburn. I would also like to enter into the record
a Breast Cancer Institute study and analysis of a Lancet 3/25/
04 article, and also the testimony of Dr. Elizabeth Shadigian,
University of Michigan, Clinical Associate Professor,
Department of Obstetrics and Gynecology, as to the
complications.
Chairman Specter. All of those documents, without
objection, will be made a part of the record.
Senator Coburn. It is amazing what we do not know, and as I
explained in my opening statement, once we go down a path, the
complications associated--the rulings that you make have major
impact. I understand the questions that you cannot answer on
things that are going to come before us, and I cannot pretend
to know what is in your heart about those issues. But what I do
know is you were pretty aggressively approached on positions in
terms of Justice O'Connor and Executive power. There seemed to
be a blinding contradiction during some of your questions that
were presented by my colleagues yesterday that raised concerns
that you are too close to the Executive and too supportive of
Executive power. They wanted to be sure that you respect the
role of the judiciary and are free from the influences of the
political branches. However, they then argue that you should
have the same ideology of Justice O'Connor to maintain the
balance on the Court. I have trouble figuring out how they can
have it both ways. That is an inherently political desire.
Is there anything in the Constitution, this little
document, that says what the ideology ought to be of one
Supreme Court Justice replacing another one?
Judge Alito. The Supreme Court simply gives the President
the authority to nominate Justices of the Supreme Court and
other Federal judges, and gives Congress the advice and consent
responsibility, and doesn't go further than that.
Senator Coburn. And the President, by being elected, the
only person in this country who is elected by the whole
country, is given that honor and that privilege as well as that
responsibility, and then we have the responsibility to advise
and consent to that; is that correct?
Judge Alito. That's correct.
Senator Coburn. But nowhere in the Constitution, nor by
precedent--matter of fact, the precedents are just exactly the
opposite of that--is it stated that somebody has to have the
same philosophy as somebody that is coming off the Court.
Judge Alito. I think that every Supreme Court Justice is an
individual, and I think every nominee is an individual, and no
nominee can ever be a duplicate of someone who retires, and
particularly when someone retires after such a distinguished
career and such a historic career as Justice O'Connor. Nobody
can be expected as a nominee to fit that mold.
Senator Coburn. So the fact that you have to fit the Sandra
Day O'Connor mold is really a misapplication of--there is no
precedent that would say that.
Judge Alito. The only--if I'm confirmed, I'll be myself.
I'll be the same person that I was on the Court of Appeals.
That's the only thing that I can say in answer to that.
Senator Coburn. Let me repeat some facts that one of my
colleagues mentioned yesterday. Of the 109 Justices to sit on
the Supreme Court, nearly half have replaced Justices appointed
by another political party. President Clinton replaced Justice
White, who dissented on Roe v. Wade, with Justice Ginsburg, who
argued for a right to abortion. Justice Ginsburg was, I think,
three votes against her in the Senate when she was approached,
and she took it completely opposite, but she was well
qualified. She had integrity, and she was voted onto the Court
even though many people knew that her philosophy was very
different from theirs; is that true?
Judge Alito. She was--the vote was 90 something to a small
number. I know that, yes.
Senator Coburn. A lot of times in these hearings, you do
not get a chance to say, why would you want to be a Justice of
the Supreme Court of the United States? Why would you want that
responsibility? Why do you want to go through this process to
be able to achieve that position? Can you tell the American
people why?
Judge Alito. I think it's a chance to make a contribution.
I think it's a chance to use whatever talent I have in the most
productive way that I can think of. There are a lot of things
that I can't do and a lot of things that I couldn't do very
well if I was given the assignment of doing them, but I've
spent most of my career as an appellate attorney. Well, I spent
most of my career before becoming a judge as an appellate
attorney and now I've spent 15 years as an appellate judge and
I think this is what I do best. I think this gives me an
opportunity to make a contribution to the country and to the
society, because the Supreme Court has a very important role to
play and it's important that it do the things that it's
supposed to do well and I would do my very best to further
that.
And it is also important for the Supreme Court, and for
that matter, all of the Federal courts, to exercise restraint.
As you were referring to earlier, that has turned out to be the
principal check on the way the judiciary does its work on a
day-to-day basis. The judiciary is not checked in its day-to-
day work in the same way as the Congress and the President. The
Congress can pass a law or pass a bill and the President can
veto it. One House can pass a bill, the other House may not go
along. The President has to propose legislation to Congress if
the President wants legislation. Congress can pass laws that
the President doesn't like. There are checks and balances that
are worked out in the ordinary processes of government.
But when it comes to the judiciary in deciding
constitutional cases, the judiciary is checked on a daily basis
primarily by its own discipline, its own self-restraint. And so
it's important for--the judiciary has these twin
responsibilities that are in intention at times, doing what it
is supposed to do and doing those things well and vigorously
and courageously, if it comes to that, but at the same time,
constantly monitoring its own activities and asking, are we
doing what we are supposed to be doing as judges? Are we
functioning as judges, or are we stepping over the line? Are we
turning ourselves into legislators? Are we turning ourselves
into members of the executive branch or administrators? And the
judiciary has to maintain its independence. That's of critical
importance, and that's an important part of the role and that
also has to be informed by this sense of self-restraint.
Senator Coburn. Thank you. During Judge Roberts's hearing,
Senator Feinstein tried to get him to talk and speak out of his
heart and I thought it was a great question so that the
American people can see your heart. This booklet is designed to
protect the weak, to give equality to those who might not be
able to do it themselves, to protect the frail, to make sure
that there is equal justice under the law. You know, I think at
times during these hearings you have been unfairly criticized
or characterized as that you don't care about the less
fortunate. You don't care about the little guy. You don't care
about the weak or the innocent. Can you comment just about Sam
Alito and what he cares about and let us see a little bit of
your heart and what is important to you and why?
Judge Alito. Senator, I tried to--in my opening statement,
I tried to provide a little picture of who I am as a human
being and how my background and my experiences have shaped me
and brought me to this point. I don't come from an affluent
background or a privileged background. My parents were both
quite poor when they were growing up. I know about their
experiences, and I didn't experience those things. I don't take
credit for anything that they did or anything that they
overcame, but I think that children learn a lot from their
parents and they learn from what the parents say, but I think
they learn a lot more from what the parents do and from what
they take from the stories of their parents' lives.
And that's why I went into that in my opening statement,
because when a case comes before me involving, let's say,
someone who is an immigrant, and we get an awful lot of
immigration cases and naturalization cases, I can't help but
think of my own ancestors because it wasn't that long ago when
they were in that position. And so it's my job to apply the
law. It's not my job to change the law or to bend the law to
achieve any results, but I have to, when I look at those cases,
I have to say to myself, and I do say to myself, this could be
your grandfather. This could be your grandmother. They were not
citizens at one time and they were people who came to this
country.
When I have cases involving children, I can't help but
think of my own children and think about my children being
treated in the way the children may be treated in the case
that's before me. And that goes down the line. When I get a
case about discrimination, I have to think about people in my
own family who suffered discrimination because of their ethnic
background or because of religion or because of gender, and I
do take that into account. When I have a case involving someone
who's been subjected to discrimination because of disability, I
have to think of people who I've known and admired very greatly
who had disabilities and I've watched them struggle to overcome
the barriers that society puts up, often just because it
doesn't think of what it's doing, the barriers that it puts up
to them.
So those are some of the experiences that have shaped me as
a person.
Senator Coburn. Thank you. Mr. Chairman, I think I will
yield back the balance of my time at this time and if I have
additional questions, I will get them in the next round.
Chairman Specter. Thank you very much, Senator Coburn.
We will now proceed to the second round of questioning,
with each Senator having 20 minutes, and we will take 20
minutes more and then we will take a break.
Is it appropriate for the Court to declare Acts of Congress
unconstitutional because of our, quote, ``method of
reasoning''? Does the Court have some superior insights on a
method of reasoning? Is it appropriate for the Court to declare
Acts of Congress unconstitutional, functioning as a taskmaster
to make sure that Congress does its homework? There have been a
series of decisions which have seriously undercut congressional
power where, in my opinion, the Court has usurped the authority
of Congress, and this moves into the often-criticized range of
congressional legislation--judicial legislation and derogation
of the congressional power.
We are seeking, Judge Alito, to have an appropriate
equilibrium in our system and the beauty of the American system
is that no one has too much power. We call it separation of
power. Although not specifically mentioned in the Constitution,
we call it checks and balances. We have looked into the issue
of tremendous importance. Regrettably, we haven't plumbed it,
only scratched the surface, but our time is limited on the
authority of the President under War Powers Article II
contrasted with Congress's authority to legislate for privacy
under the Foreign Intelligence Surveillance Act, and I want to
move into two other analogous areas, Congress versus the Court
and the Court versus Congress, as Congress has taken away the
jurisdiction of the Court, notably very recently by stripping
habeas corpus jurisdiction on detainees.
When the Congress legislated to protect women against
violence, the Congress did so with a very expansive record. It
wasn't like Lopez, which was a revolution where the Court upset
60 years of congressional power under the Commerce Act, but in
the case of U.S. v. Morrison involving the legislation to
protect women against violence, there was a record which
included gender bias from task forces in 21 States, five
separate reports. Notwithstanding a, quote, ``mountain of
evidence,'' as noted by four dissenters, the Court declared the
Act unconstitutional because of our method of reasoning.
Now, you are a judge. You may be a Supreme Court Justice.
Is there something we are missing? Do you judges have some
method of reasoning which is superior to the method of
reasoning of the Congress?
Judge Alito. I think the branches of government are equal
and everybody, all the officers in all the branches of
government take an oath to the same Constitution--
Chairman Specter. Equality on method of reasoning?
Judge Alito. I would never suggest that judges have
superior reasoning power than does Congress. I think what the
Court was getting at when it made that statement in Morrison,
and yesterday, I looked at something that I had written and
said that was not well phrased, I think that what the Court was
getting at there in Morrison was that it was applying a certain
standard, a certain legal standard as to whether something
substantially affected commerce, and I think that is what they
were getting at, but--
Chairman Specter. It is hard to figure out what they were
getting at. We do know what they said. They said our method of
reasoning was defective. But I take it from your statement you
wouldn't subscribe to overturning congressional Acts because of
our method of reasoning?
Judge Alito. I think that Congress's ability to reason is
fully equal to that of the judiciary and I think Congress--
Chairman Specter. And you think that even after appearing
here for a day and a half?
[Laughter.]
Judge Alito. I have always thought that and nothing has
changed my mind about that.
Senator Hatch. I am starting to worry about you.
[Laughter.]
Chairman Specter. That is on Senator Hatch's time.
[Laughter.]
Chairman Specter. Let me take up the Americans with
Disabilities Act on two decisions within a couple of years of
each other, one where the Supreme Court declared
unconstitutional the Americans with Disabilities Act because it
applied to employment, upholding the Act as it applied to
access to facilities. Justice Scalia had a ringing dissent when
the Court imposed the standard of congruence and
proportionality, a very difficult standard which you wrestled
with in the family leave case.
The congruent and proportional standard came to the Court
in the Boerne case in 1997, so it is very recent origin and it
has all the earmarks of having been pulled out of the thin air.
Justice Scalia said that it was a thinly veiled invitation to
judicial arbitrariness and policy-driven decisionmaking.
Justice Scalia criticized the majority opinion for functioning
as a taskmaster to see to it that Congress had done its
homework. Here again, there was a voluminous record, 13
congressional hearings. Thirty-thousand people were surveyed.
Do you think, Judge Alito, that a test like congruence and
proportionality is fair notice to the Congress on what we can
do by way of legislation? Here, we are dealing--and it is maybe
worth just a little explanation. When Congress legislates on
constitutional issues under Article V of the 14th Amendment,
the Court then makes a comparison to State immunity under the
11th Amendment. But do you think that is a fair test as to what
we are to try to figure out what the Supreme Court is later
going to say is congruent and proportionate?
Judge Alito. Well, like many tests in the law, it is not a
mathematical or a scientific formula that can produce a
particular result with certainty as it is applied to particular
situations. It addresses--
Chairman Specter. How about just fair notice? Never mind
mathematical certainty.
Judge Alito. It addresses a difficult problem the Court has
grappled with over the years and that is the scope of
Congress's authority under Section V of the 15th Amendment--of
the 14th Amendment to pass legislation enforcing the provisions
of the 14th Amendment, and one argument that has been made
which would represent a very narrow interpretation of
congressional power, and this is basically the argument that
Justice Scalia--the position that Justice Scalia took in the
dissent that you mentioned, is that Congress' authority doesn't
extend any further than remedying actual violations of the 14th
Amendment, that there is no--Congress doesn't have additional
authority to enact prophylactic measures outside of the area of
race, which Justice Scalia would treat differently and
recognize broader authority because of the historical origin of
the 14th Amendment.
Chairman Specter. Judge Alito, what is wrong with the test
of Maryland v. Wirtz and Gonzales v. Raich, because you take a
look at power under the Commerce Clause and to be applicable to
our legislation under the Americans with Disabilities Act? That
test is where the Court has gone into some length to say what
you have gone into repeatedly, that judges have no expertise.
It is up to the Congress to have hearings. It is up to the
Congress to find facts. It is up to the Congress to find out
what goes on in the real world.
In Wirtz in 1968 and reaffirmed recently in Gonzales v.
Raich after Morrison, after Lopez, quote, ``where we find the
legislators have a rational basis for finding a chosen
regulatory scheme necessary for the protection of commerce,''
could apply as well to disability, ``our investigation is at an
end.'' What is wrong with that? Would you subscribe to that
test over the proportionate and congruence test?
Judge Alito. There are a number of tests that have been
used and proposed over the years in this area and this is the
subject, I think, of continuing litigation in the Supreme
Court. There is the Maryland v. Wirtz approach and then the
City of Boerne approach, and you mentioned that the City of
Boerne is a relatively recent decision and it's been followed
by a number of subsequent decisions--
Chairman Specter. Where did it come from? Where did the
Boerne test on proportionate and congruence come from if not
thin air?
Judge Alito. Well, I think it was an effort by the majority
in that case to identify a standard that would not strictly
limit congressional power to remedying established violations
of the 14th Amendment without going--while still, in their
view, retaining the necessary remedial connection to Section V
of the 14th Amendment. It is an approach that they have used in
a number of cases and the cases have not come out--sometimes
the results in the cases have not been predictable.
You mentioned the contrast between the two decisions under
the Americans with Disabilities Act. I think Nevada v. Hibbs
was a decision that some people--that surprised some people
based on the Court's prior precedents. So there is, I think,
still some ferment in this area and I am sure it is a question
that's going to be--that will come up in future cases.
Chairman Specter. Well, we are speaking not only to you,
Judge Alito, but to the Court. The Court watches these
proceedings and I think they ought to know what the Congress
thinks about making us schoolchildren per challenging our
method of reasoning. We are considering legislation which would
give Congress standing to go into the Supreme Court to uphold
our cases. Right now, the Solicitor General does that, but he
is in the executive branch. We don't want to derogate the
Solicitor General in your presence, Judge Alito, but the
thinking that we have had was to speak about the decisions, the
Court's decisions on the floor in the Senate, nobody pays
attention to that. Maybe we would try to come in as amicus. Why
do that? We have the power to grant standing. We can grant
standing to ourselves and come into Court and fight to uphold
constitutionality.
Let me move at this point to the recent legislation which
takes away the jurisdiction of the Federal bench to hear habeas
corpus decisions. It is in the context of the detainees.
Justice O'Connor in Hamdi laid out the law in flat terms.
All agree that absent suspension, the Writ of Habeas Corpus
remains available to every individual detained within the
United States, every individual, not just citizens. And then
she spells out the way you suspend the writ, and you do it only
by rebellion or invasion. Then this recent legislation says the
District Columbia Court of Appeals shall have the exclusive
jurisdiction to determine the validity of any final decision by
the Combatant Status Review Tribunal. If it means what it says,
and judges like to look to the statute as opposed to going to
congressional intent, if it means what it says, that there is
exclusive jurisdiction, there is no jurisdiction of the Supreme
Court.
This may come before the Court, but what factors would you
consider to be relevant in making the analysis as to again
maintaining equilibrium between the Court and the Congress of
our authority to take away Federal court jurisdiction on this
important item?
Judge Alito. In the area of habeas corpus, there are a
number of important principles that have to be considered in
reviewing any legislation that is argued to--that someone
contends has altered habeas jurisdiction. The first is that the
Court said in a case called INS v. Cyr that if there is an
attempt to--that habeas jurisdiction can't be taken away unless
it's clear in the statute that that's what was intended. Habeas
jurisdiction is not to be repealed by implication. That's one
important principle.
And then in Felker v. Turpin, which involved the Anti-
Terrorism and Effective Death Penalty Act of 1996, Congress--
I'm sorry, the Supreme Court considered arguments about whether
provisions of that legislation which restructured Federal
habeas review violated the Constitution and they found that
there wasn't a violation because the essentials of the writ
were preserved. And so if other legislation is challenged, it
would have to be reviewed under standards like that.
Chairman Specter. Judge Alito, I want to move now to a
subject on efforts to have television in the Supreme Court of
the United States, a subject very near and dear to my heart. I
have been pushing it for a long time. I am personally convinced
that it is going to come some day. I am not sure whether it
will come during my tenure in the Senate, more likely to come
during the tenure of Chief Justice Roberts in the Supreme
Court, or your tenure, if confirmed.
The Supreme Court said in the Richmond Television case
that, quote, ``the rights of a public trial belong not just to
the accused, but to the public and the press, as well. Such
openness has long been recognized as an indispensable attribute
in the Anglo-Saxon trial.'' There are many other lines of
authority, but only a few moments left to set the stage here,
but the Supreme Court has the final word.
We can talk about the President's war power under Article
II and the congressional authority under the Foreign
Intelligence Surveillance Act, but the Court makes the
decision. We can talk about taking away habeas corpus
jurisdiction, but the Court decides whether we can do it or
not. We can talk about the insult of declaring Acts of Congress
unconstitutional because of our method of reasoning, but the
Court can do that. And the Court has made these decisions on
all the important subjects. The Court decided who would be
President of the United States in Bush v. Gore. The Court
decides who lives on a woman's right to choose, who dies on the
right to die, on the death penalty, on every critical decision.
The Congress has the authority to do many things on the
administrative level, such as we set the starting date for the
Court, the first Monday in October. We set what is a quorum for
the Court, six members. Congress sets the size of the Court,
the effort made by President Roosevelt to increase the number
from nine to 15. We put provisions in on speedy trial, time
limits on habeas corpus matters.
In recent times, some of those who have objected to
televising the Court have been on television quite a bit
themselves. When Justice Scalia and Justice Breyer come on TV,
it is a pretty good show. There is not much surfing when that
happens, like surfing when my turn comes to question.
[Laughter.]
Chairman Specter. But this proceeding on confirmation of
Supreme Court Justices has attracted a lot of attention. As I
said to you yesterday, I am tired of picking up the front page
everywhere and seeing your picture on it. Fred Hume was on Fox
News talking about going to a Redskins game in 1991 when
Justice Thomas was being confirmed and how he had his earsets
on to listen to the proceedings. I think Senator Leahy was
questioning Professor Hill at that particular time.
But how about it? Why shouldn't the Supreme Court be open
to the public with television?
Judge Alito. Well, I had the opportunity to deal with this
issue actually in relation to my own court a number of years
ago. All the courts of appeals were given the authority to
allow their oral arguments to be televised if they wanted and
we had a debate within our court about whether we would, or
whether we should allow television cameras in our courtroom and
I argued that we should do it. I thought that it would be a
useful--
Chairman Specter. You have taken a position on this issue?
Judge Alito. Well, I did, and this is one of the matters on
which I ended up in dissent in my court.
[Laughter.]
Judge Alito. I think the majority was fearful that our
Nielsen numbers would be in the negatives.
Chairman Specter. Could you promise the same result?
[Laughter.]
Chairman Specter. Could you promise the same result, if
confirmed, to be a dissenter for the Court to allow TV?
Senator Grassley. Be careful how you answer.
Chairman Specter. Be careful how you answer everything, as
you have been.
Judge Alito. The issue is a little bit different on the
Supreme Court and it would be presumptuous for me to talk about
it right now, particularly since I think at least one of the
Justices has said that a television camera would make its way
into the Supreme Court courtroom over his dead body, so I
wouldn't want to comment on it.
Chairman Specter. Justice Souter. But quite a few of his
colleagues have been on television.
Let me ask you this, Judge Alito. I know what the answer
will be, with 7 seconds left. Will you keep an open mind?
Judge Alito. I will keep an open mind despite the position
I took on the Third Circuit.
[Laughter.]
Chairman Specter. Thank you, Judge Alito.
We will now take a 15-minute break and we will reconvene at
11:35.
[Recess 11:18 a.m. to 11:35 a.m.]
Chairman Specter. The hearing will resume. Turning to the
distinguished ranking member, Senator Leahy, for 20 minutes.
Senator Leahy. Thank you, Mr. Chairman.
Judge Alito, welcome back. If the past is any prologue, you
probably do not have more than another day or so of this to go
through. I am concerned. I want to just state this right out,
concerned that you may be retreating from part of your record.
I think that some of the answers that--I have expressed this
concern, mentioned to the Chairman I am concerned that some of
your answers were inconsistent with past statements. All of us
want to know your legal and constitutional philosophy.
So let's go back to the questions that I was asking
yesterday about checking Presidential power, and we spoke about
Justice Jackson's opinion in Youngstown. Justice Jackson, as
you know, is a hero of mine, and I point often to the
Youngstown case. But when Congress acts to strain the
President's power, as we did with the anti-torture statutes and
the Foreign Intelligence Surveillance Act, I believe the
President's power then is at its lowest ebb. You seemed to be
saying yesterday that fell into the second category of Jackson,
the twilight zone. Actually, I believe you were mistaken on
that. Justice Jackson spoke of the twilight zone area, or as he
said, zone of twilight, where Congress had not acted.
So let us go to the landmark decision in Hamdi, and Justice
O'Connor's decision. The issue there was whether due process
required that a U.S. citizen, should have a meaningful chance
to challenge the factual basis for his detention by the
Government.
Now, Justice O'Connor wrote that the President does not
have a blank check even in time of war. Yesterday you told
Senator Specter that you agreed with Justice O'Connor's general
statement. A very different view was in the dissent. Justice
Thomas would have upheld the extreme claims with the all
powerful and essentially unchecked President. He argued the
Government's powers could not be balanced away by the Court,
and there is no occasion to balance a competing interest. Which
one is right, Justice O'Connor or Justice Thomas? They are
quite a bit different.
Judge Alito. Justice O'Connor wrote the opinion of the
Court. The first question that she addressed in Hamdi was
whether it was lawful to detain Hamdi, and it was a statutory
question, and it was a question whether--it was whether he was
being detained in violation of what is often referred to as the
anti-detention statute, which was passed to prevent a
repetition of the Japanese internment that occurred during
World War II, and she concluded that the authorization for the
use of military force constituted authorization for detention.
And then she went on to the issue of the constitutional
procedures that would have to be followed before someone could
be detained, and she looked to standard procedural due process
law in this area, and identified some of the requirements that
would have to be followed before someone could be detained.
And now issues have arisen about the identity of the
tribunal that is to make a determination about detaining people
who are taken into custody during the war on terrorism, and
that's one of the issues that's working its way through the
court system.
Senator Leahy. No, I am not talking about things working
their way through, but just on Hamdi, which has already been
decided. Would you say that Justice O'Connor basically applied
the Jackson test, not the twilight zone test, but the test of
where the President's power is at its lowest ebb?
Judge Alito. In addressing the statutory question I don't
think she had any need to get into Justice Jackson's framework
as well.
Senator Leahy. Would you say it would be consistent with
what Justice Jackson said?
Judge Alito. I think it certainly is consistent with what
Justice Jackson said.
Senator Leahy. Which decision do you personally agree with,
hers or the dissent by Justice Thomas?
Judge Alito. I think that the war powers are divided
between the executive branch and Congress. I think that's a
starting point to look at in this area. The President is the
Commander in Chief, and he has authority in the area of foreign
affairs, and is recognized in Supreme Court decisions as the
sole organ of the country in conducting foreign affairs.
Senator Leahy. But you are not going to say which of the
two decisions you agree with.
Judge Alito. Well, I'm trying to explain my understanding
of the division of authority in this area, and I think that
it's divided between the executive and the Congress. I
certainly don't think that the President has a blank check in
time of war. He does have the responsibility as the Commander
in Chief, which is an awesome responsibility.
Senator Leahy. And we all understand that and appreciate
that. I understood, listening to Chief Justice Roberts, when he
was here sitting where you are, that he felt that Justice
O'Connor's decision most clearly tracked the Jackson standards
in Youngstown.
But I want to get more into this unitary Executive theory
because I really had questions listening to you yesterday. You
have said as recently as five years ago, that you believe the
unitary Executive theory best captures the constitutional role
of Presidential power. You were a sitting judge when you said
that. And do you still adhere to that constitutional view that
you were expressing 5 years ago?
Judge Alito. I think that the considerations that inform
the theory of the unitary Executive are still important in
determining, in deciding separation of powers issues that arise
in this area. Of course, when questions come up involving the
power of removal, which was the particular power that I was
talking about in the talk that you're referring to, those are
now governed by a line of precedents from Myers going through
Humphrey's Executor and Wiener and Morrison, where the Court
held 8-1 that the removal restrictions that were placed on an
independent counsel under the Independent Counsel Act did not
violate separation of powers principles. So those would be
applied. Those would be the governing precedents on the
question of removal, but my point in the talk was that the
considerations that underlie this theory are relevant, should
inform decisionmaking in the area going beyond the narrow
question of removal.
Senator Leahy. But in the past you criticized Morrison. Are
you saying now that you are comfortable with Morrison, that you
accept it?
Judge Alito. Morrison is a settled--is a precedent of the
Court. It was an 8-1 decision. It's entitled to respect under
stare decisis. It concerns the Independent Counsel Act, which
no longer is in force.
Senator Leahy. So do you hold today that the Independent
Counsel statute was beyond the congressional authority to
authorize--to enact?
Judge Alito. No. I don't think that was ever my position.
Senator Leahy. All right. Under the theory of unitary
Executive that you have espoused, what weight and relevance
should the Supreme Court give to a Presidential signing
statement? I ask that because these are real issues. I mean we
passed the McCain-Warner, et al. statute against torture, when
the President did a separate signing statement. After he signed
it into law, he did not veto it. He had the right and, of
course, the ability to veto it. He did not veto it. He signed
it into law, and then he wrote a sidebar, a signing statement
basically saying that it will not apply to him or those acting
under his order if he does not want it to.
Under the unitary Executive theory, one could argue that he
has an absolute right to ignore a law that Congress has
written. What kind of weight do you think should be given to
signing statements?
Judge Alito. I don't see any connection between the concept
of a unitary Executive and the weight that should be given to
signing statements in interpreting statutes. I view those as
entirely separate questions. The question of the unitary
Executive, as I was explaining yesterday, does not concern the
scope of Executive powers. It concerns who controls whatever
power the Executive has. You could have an Executive with very
narrow powers and still have a unitary Executive. So those are
entirely different questions.
The scope of Executive power gets into the question of
inherent Executive power.
Senator Leahy. Let's go into that a little bit because back
in the days when I was a prosecutor, I mean I was very shocked
what happened in the Saturday Night Massacre. A President
orders certain things to be done. The Attorney General says,
no, I won't do it. Fires him. The Deputy Attorney General,
said, ``OK, you do it,'' and Deputy Attorney General would not,
saying it violated the law. Fires him. They keep on going down
to finally find one person, a person you have praised, Robert
Bork, who says, ``Fine, I'll fire him. I'll do what the
President says.''
You have criticized Congress for allowing these independent
agencies to refine and apply policies passed by Congress. You
said that insofar as the President is the Chief Executive, he
should follow their policies, not Congress.
So let's take one, for example, the Federal Election
Commission, independent agency. They make policies. Suppose the
President, whoever was the President, did not like the fact
they were investigating somebody who had contributed to him.
Could he order them to stop that investigation?
Judge Alito. Senator, I don't think I have ever said that--
I don't think I've ever challenged the constitutionality of
independent agencies. My understanding--
Senator Leahy. No, but you have said--my understanding is
that you chastised Congress for giving so much power to them
when the power should be in the President or in the Executive.
Judge Alito. Senator, I don't think I've ever said that
either. I said that I thought that there was merit to the
theory of the unitary Executive, and I tried to explain how I
thought that should play out in the post-Morrison world,
accepting Morrison as the Supreme Court's latest decision in a
resounding 8-1 decision on the issue of removal. How should the
issue of--how should the concept of the unitary Executive play
out in the post-Morrison world?
On the issue of removal, my understanding of where the law
stands now is that Myers established that there are certain
officers of the executive branch whom the President has the
authority to remove as he sees fit. There are--and there are
those--
Senator Leahy. Of course, he could fire his whole cabinet
today if he wanted to. We all accept that.
Judge Alito. Well, that was the issue that was presented by
the Tenure in Office Act that led to the impeachment of the
first President Johnson, and in Myers, Chief Justice Taft,
although the Act of that controversy was long past, Chief
Justice Taft opined that the Tenure in Office Act had been
unconstitutional.
Senator Leahy. But let us not go off the subject of these
independent agencies that we have set up. Use as an example the
FEC, the Federal Election Commission. Could the President, if
he did not like somebody they were investigating, a contributor
or something, could he order them to stop?
Judge Alito. What Morrison says is that Congress can place
restrictions on the removal of inferior officers, provided that
those removal restrictions don't interfere with the President's
exercise of Executive authority. So they adopted a functional
approach, and that was the Court's latest word on this
question. They looked back to Humphrey's Executor, and Wiener,
which had talked about categories, and they--categories of
quasi-judicial and quasi-legislative officers, and they
reformulated this as a functional approach, and that's the
approach that would now be applied.
Senator Leahy. Do you believe the President has the power
to curtail investigations, for example, by the Department of
Justice?
Judge Alito. I don't think--
Senator Leahy. The Department of Justice is under him.
Judge Alito. I don't think the President is above the law,
and the President is the head of the executive branch, and I've
explained my understanding of the removal restrictions that can
and cannot be placed on officers of the executive branch.
Senator Leahy. But could he order them to stop an
investigation?
Judge Alito. Well, you'd have to look at the facts of the
case and the particular officer that we're talking about.
Senator Leahy. Could he order the FBI to conduct
surveillance in a way not authorized by statute?
Judge Alito. The President is subject to constitutional
restrictions, and he cannot lawfully direct the FBI or anybody
in the Justice Department or anybody else in the executive
branch to do anything that violates the Constitution.
Senator Leahy. Could he--I am speaking now of statute--
could he order our intelligence agencies to do something that
was specifically prohibited by statute?
Judge Alito. My answer to that is the same thing. He has to
follow the Constitution and the laws of the United States. He
has to take care that the laws are faithfully executed. If a
statute is unconstitutional, then the President--then the
Constitution would trump the statute. But if a statute is not
unconstitutional then the statute is binding on the President
and everyone else.
Senator Leahy. Does the President have unlimited power just
to declare a statute, especially if it is a statute that he had
signed into law, to then declare it unconstitutional or say he
is not going to follow it?
Judge Alito. If the matter is later challenged in court, of
course, the President isn't going to have the last word on that
question, that's for sure. And the courts would exercise
absolutely independent judgment on that question. It's
emphatically the duty of the courts to say what the law is when
constitutional questions are raised in cases that come before
the courts.
Senator Leahy. That is an answer I agree with. Thank you.
In other areas, SEC, can he order them to stop an investigation
if it is somebody he does not want investigated?
Judge Alito. Well, the independent agencies are governed by
Humphrey's Executor and cases that follow that, and there have
been restrictions placed on the removal of commissioners of the
independent agencies, and they have been sustained by the
Supreme Court. That's where the Supreme Court precedent on the
issue stands.
Senator Leahy. Is that settled law?
Judge Alito. It is a line of precedent that culminated, I
would say--there have been a few additional cases relating to
this, the Edmond case and the Freitag case, but I would look to
Morrison, which was an 8-1 decision involving a subject of
considerable public controversy, the removal of an independent
counsel, removal of restrictions on that independent counsel.
Senator Leahy. I am still having some difficulty with
statements you have made about the unitary Executive and how
you would apply it. You said yesterday, in answer to a question
I asked, that when people's rights are violated, they should
have their day in court. The courts are there to protect the
rights of individuals. I do not think anybody in this room
would disagree with that. It is the practice we look at in PIRG
v. Magnesium Electron. You concluded the Congress did not have
the constitutional authority to authorize citizens to bring a
suit against polluters under the Clean Water Act, whether the
people had justiciable claims or not, there were a number of
people downstream from Magnesium Electron. They said the water
had been polluted. They brought a suit. You threw it out. Judge
Lewis dissented, said it should have gone back to the lower
court on the question of facts.
I will give you a two-part question. One, why did you send
that case back to the lower court? And do you accept Laidlaw as
being settled law?
Judge Alito. Well, Magnesium Electron presented the
question of whether we had a case or controversy under Article
III, and that's the fundamental limit on our jurisdiction. The
Supreme Court has said that we do not have a case or
controversy before us if we do not have a party that has
constitutional standing which requires injury in fact. And the
issue was whether the plaintiffs in that case had established
injury in fact. There was a plant that was discharging certain
things into a creek, which eventually emptied into the Delaware
River, and the plaintiffs in the case alleged that they enjoyed
the Delaware River in a variety of ways. They ate fish from the
river. They drank water from the river. They walked along the
river.
But there was no--there was nothing in the evidence--and
Judge Lewis agreed on this. Judge Roth wrote the opinion and I
agreed with Judge Roth, and Judge Lewis agreed with us on this
point, there was nothing in the record.
Senator Leahy. But didn't Judge Lewis agree with you on the
legal point, but he suggested sending it back to the lower
court to determine whether there were facts to give standing? I
mean, we all agree you can't be in a case if you don't have
standing, but didn't Judge Lewis say, send it back to the lower
court so they can determine on the facts whether there might be
standing?
Judge Alito. The evidence that was before us did not show
that there was any standing on the part of the plaintiffs.
There was no evidence of harm to the Delaware River in any way
from the discharges and that was the basis of Judge Roth's
opinion which with I agreed. As I recall, Judge Lewis's point
was that the case should go back to the district court so that
the plaintiffs could have an opportunity to present additional
evidence. But as I recall, they were not even arguing before us
that they had additional evidence. They were not arguing before
us, as I recall, that we have additional evidence and we'd like
the opportunity to go back to the district court to present it.
That's my recollection of the matter.
Senator Leahy. And the other part of my question is
Laidlaw, is it settled law?
Judge Alito. Well, Laidlaw is a precedent on the Supreme
Court and my answer to the question there is the same. It's
entitled to the respect of stare decisis.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch?
Senator Hatch. Judge Alito, I just want to clarify a few
matters. In his questioning this morning, Senator Durbin from
Illinois I think apparently misstated what Chief Justice
Roberts said during his confirmation hearing. Senator Durbin
claimed that now the Chief Justice said that Roe was the
settled law of the land. In fact, that exchange that Senator
Durbin referred to was made during the confirmation process for
Judge Roberts to the Circuit Court of Appeals for the District
of Columbia, where he would have to admit that that would be
settled law for him in that court. It is beyond question that
for a circuit court nominee, the Supreme Court's pronouncements
on specific questions are binding precedents and will be the
settled law of the land.
Moreover, contrary to the distinguished Senator from
Illinois's suggestion, then-Judge Roberts's testimony in his
recent confirmation hearing, and Judge, your testimony today
and yesterday, you have both been entirely consistent in this
particular matter. I just wanted to clarify that because there
is a difference between a nominee for the circuit court of
appeals saying that something is settled law that he or she has
to be bound by than by somebody who is a nominee for the
Supreme Court, and that is just a matter of clarification that
I would like to make at this time.
Now, yesterday, you were asked, I think, some 340 questions
by 15 Senators and you are getting a bunch today. I am told
that you felt that you had to decline to answer only about 5
percent of them. That is even lower than previous Supreme Court
nominees, by far in most cases. This hearing has hopefully
provided an opportunity for you to address our concerns and
answer some of the criticisms from members of this Committee.
But, of course, there is always a battle waged outside of this
Committee room by the special interest groups, who are also
making charges and launching really unfair attacks on you. Now,
these attacks typically go directly across the airwaves or the
Internet with hardly a chance to even catch them, let alone
address them or rebut them or correct them. So I want to give
you a chance to respond to some of these attacks by some of
these left-wing groups, many of which are certainly less than
responsible and, in my view, pretty reprehensible in what they
do in these matters.
One group says in a press release that in the Chittister
case and at other times in your career on the bench, you go out
of your way to rule against workers. This group claims what it
calls your views and biases are strong evidence that you would,
in their words, quote, ``rarely rule in favor of those seeking
justice in the courts.'' I think that is a good example of how
misleading some of these groups can actually be, where they are
looking only for results in certain cases rather than upholding
of the law itself in those particular cases. In that particular
case, they are apparently willing to ignore two things about
the cases they discuss. The ignore the facts, they ignore the
law, and that is all, just the facts and the law. But they also
ignore what you have written and they ignore what you have said
here today.
How about that criticism, Judge? In Chittister, did you go
out of your way to rule against workers? What were the facts
and the law in the case and why did you think that they
required the result that you finally upheld in that case?
Judge Alito. I felt the result was dictated by Supreme
Court precedent, and I wasn't the only one who thought that.
That was a unanimous decision of our panel. Judge McKee and, I
believe, Judge Fulham from the District Court in Philadelphia
were on that panel. They all agreed, and it is my recollection
that seven other courts of appeals have decided the case the
same way. More than 20 court of appeals--that issue the same
way. More than 20 court of appeals judges, including judges
appointed by all recent Presidents, have reached that decision.
I think when you look at the law and the facts of the case,
it becomes clear why there is so much unanimity on the
question. Whether one likes the test or not, the test that we
in the lower courts have to apply in this area is the
congruence and proportionality test from City of Boerne, and
therefore, what we had to do was to see whether there was a
record of discrimination relating to the particular provision
that was at issue in Chittister, which had to do with leave for
personal illness. So there would have to be some evidence that
State employers had given more leave for personal illness to
men than women, or more leave for personal illness to women
than men, and there was no evidence whatsoever on this issue.
That's why all of these courts of appeals reached the
conclusion that they did in Chittister.
Senator Hatch. When somebody takes an unfair crack at me, I
can come back at them as a Member of the U.S. Senate. But
because you are a judge and not a politician, you really don't
have the opportunity, really, to address fully these
misrepresentations of your views, and there have been plenty of
them in this process that you have had to undergo. So I wanted
to give you some opportunity here.
For example, one liberal group sent an e-mail around just
yesterday that claimed you were not responsive to a question
about whether the President can immunize executive branch
officials who directly violate the law. Now, is it an accurate
representation of your views to suggest that you argued that
executive branch officials should be fully immunized for their
violations of the law?
Judge Alito. No, it is not a correct expression of my
views. The President, like everybody else, has to follow the
Constitution and the laws. He has to follow the Constitution at
all times and he has to follow all the laws that are enacted
consistent with the Constitution. That's clear.
Now, on the Mitchell v. Forsythe case, which they may be
referring to, that was simply--I was simply saying that a
certain argument relating to immunity from civil damages was an
argument that had been made before and it was an argument that
was being requested by our client in the case who was being
sued in his individual capacity, and I recommended that we not
make the argument, but I said, I don't dispute this argument,
and that's all that was involved there.
Senator Hatch. Let me just say this. I want to allow you to
respond to a tactic that has been used by several of our
colleagues here in these hearings. They observed results in
some past cases and then they expressed concerns that entire
groups or categories of litigants might not be able to get a
fair shake by you in the court. One of them yesterday wondered
whether the average citizen, quote, ``can get a fair shake from
you when the government is a party.'' Another did the same
thing this morning. It is one thing to express disagreement
with your decisions, and, of course, as I said before, to look
only at results and ignore the facts and the law is
fundamentally misguided and it is a misleading way of
evaluating judicial decisions.
But let us be clear what is being floated around here with
this type of tactic. Those who say, because you ruled this way
in the past, litigants cannot get a fair shake in the future,
are saying, Judge, that you are biased, that you prejudge these
cases, that you are less than fair and impartial, something
that virtually everybody who knows you, including all of the
people who testified before the American Bar Association, say
is false, that you prejudge these cases, you are less than fair
and impartial. That is a very serious charge, even if it is
cloaked in suggestions and innuendo.
Judge, you previously mentioned you oath of office, an oath
before God to do equal justice to everyone without regard to
who the parties are. How do you react to this suggestion that
the way you have ruled in the past shows or even suggests that
you are biased and that entire categories of litigants may not
get a fair shake before you?
Judge Alito. Well, I reject that. I believe very strongly
in treating everybody who comes before me absolutely equal. I
take that oath very seriously and I have tried to do my very
best to abide by that during my 15 years on the bench.
Now, I don't think a judge should be keeping a scorecard
about how many times the judge votes for one category of
litigant versus another in particular types of cases. That
would be wrong. We are supposed to do justice on an individual
basis in the cases that come before us. But I think that if
anybody looks at the categories of--looks at the cases that I
have voted on in any of the categories of cases that have been
cited, they will see that there are decisions on both sides. In
every type of employment discrimination case, for example,
there are decisions on both sides.
Senator Hatch. Most employment discrimination cases really
are decided at the lower level.
Judge Alito. Most of them are, yes.
Senator Hatch. And when they get up to your level, it is
generally decided on technical or procedural bases. Am I wrong
in that?
Judge Alito. No, that is correct, Senator.
Senator Hatch. And sometimes you have to uphold the law,
even though you may be uncomfortable with the law yourself.
Judge Alito. We have to decide the cases on the facts that
are in the record and the law that applies.
Senator Hatch. That is right. Let me just ask you about a
few of your cases, because it is easy to cherry-pick these
cases and find a sentence here you don't like and a sentence
there you don't like and criticize you in the process as though
you are not being fair when, in fact, everybody who knows you
knows your impeccable reputation for fairness, dignity,
decency, honor, and capacity, and that is why you got the
highest rating from the American Bar Association and deserve
it, and you twice got that, and I know how tough they can be.
But let me just give you a couple of illustrations. Zubi v.
AT&T. You were the lone dissenter in that case. What did you
dissent from?
Judge Alito. I dissented from a majority decision that held
that Mr. Zubi, who was claiming racial discrimination, would
not have his day in court because of the statutory--
Senator Hatch. You would have given him his day in court,
right--
Judge Alito. I would have, yes--
Senator Hatch [continuing]. If it had been up to you?
Judge Alito. Yes.
Senator Hatch. All right. How about U.S. v. Kithcart? I
don't expect you to remember all these cases, and if you don't,
just raise your hand and I will try and recite them, but this
was a Fourth Amendment case. You held that the Fourth Amendment
does not allow police to target drivers because of the color of
their skin, is that right?
Judge Alito. That is right. That was essentially a case of
racial profiling and I wrote an opinion holding that that was a
violation of the Fourth Amendment.
Senator Hatch. And that was even after a police officer
received a report that two black men in a black sportscar had
committed three robberies, and she pulled over the first black
man in a black sportscar, or the first black sportscar she saw.
But you ruled for the defendant and against racial profiling in
that case.
Judge Alito. That's correct, Senator.
Senator Hatch. OK. In Thomas v. Commissioner of Social
Security, just to mention a few of these cases to show that you
are going to do what is right, regardless. Sometimes in these
employment cases and even other cases, when they get up on
appeal, they are fairly technical in nature and you have got to
do what is right under the law. But in Thomas v. Commissioner
of Social Security--do you recall that case?
Judge Alito. I do, yes.
Senator Hatch. What did you do there?
Judge Alito. Well, that was a case where I think that the
Supreme Court thought that my opinion had gone too far in favor
of the little guy who was involved there. That was a--
Senator Hatch. This was a woman with disabilities, right?
Judge Alito. That's right, a woman who was trying to get--
Senator Hatch. And she sought Social Security benefits.
Judge Alito.--Social Security disability benefits, and in
order to be eligible for those, she had to be unable to perform
any job that existed in substantial numbers in the national
economy.
Senator Hatch. She had a job as an elevator operator, if I
recall.
Judge Alito. That's right. As the case was presented to us,
the only job that she could perform was her past job, which was
as an elevator operator, and what I said was that you can't
deny somebody Social Security benefits because the person is
able to do a job that no longer exists in any substantial
numbers in the national economy. You can't deny benefits based
on a hypothetical job. It has to be based on a real job. And
the Supreme Court didn't see it that way, but it seems to me
that the way we ruled was consistent with what I thought--
Senator Hatch. So in other words, you stood up for the
person seeking rights here. The Supreme Court overruled you.
Judge Alito. That's right.
Senator Hatch. Oh my goodness. In the landmark case of, how
do you pronounce it, Fatin v. INS?
Judge Alito. ``Fatten,'' I think.
Senator Hatch. This involved an Iranian woman--Iranian
women who refused to conform to their government's gender-
specific laws and social norms, whether or not they should be
granted asylum in America. How did you rule in that case?
Judge Alito. I think that was one of the first cases in the
Federal courts to hold that requiring a woman to be returned to
a country where she would have to wear a veil and conform to
other practices like that would amount to persecution if that
was deeply offensive to her and that subjecting a woman to
persecution in Iran or any other country to which she would be
returned based on feminism would be persecution on the basis of
political opinion.
Senator Hatch. I have got another nine or ten cases and
perhaps even more than I could go through, but the point is
that whenever they deserve to win, they win, regardless of
whether they are rich or poor, whether they are powerful or
not. You basically upheld the law in these cases, is that
correct?
Judge Alito. That is what I've tried to do.
Senator Hatch. And where you have been in dissent, you have
tried to do it to the best of your ability.
Judge Alito. That's right, Senator.
Senator Hatch. OK. Let me just mention one other thing.
This business of Vanguard, when you signed that back in 1990,
12 years before the matter for which you are being criticized,
not by anybody who has any ethical, professorial, or other
knowledge, not by the American Bar Association, not by the vast
majority of lawyers who look at these matters, that particular
statement said, will you during your, quote, ``initial
service.'' It seems to me those are important words. You
haven't tried to hide behind that. You have just honestly
explained that, basically, you made a mistake, which really
wasn't a mistake according to all the ethics people and
according to the American Bar Association. And now, instead of
the original accusation and the original implication, you are
being accused of not being forthcoming because of that original
statement on your application form, to the Committee
questionnaire.
But the fact of the matter is that, quote, ``initial
service'' doesn't mean 12 years away, does it, when there is no
chance in the world that you had ever received any monetary
benefit from Vanguard?
Judge Alito. Well, I don't think initial service means 12
years away--
Senator Hatch. Neither do I and neither does anybody who
cares about justice and about what is right in this matter. So
to blow that out of proportion like your adversaries have done
is really pretty offensive. I could go on and on and be
stronger on that, but the fact of the matter is, I just wanted
to make that statement. ``Initial service,'' unquote, is pretty
clear.
Let me just say that, sometimes, I just can't make sense
out of what some of your critics are saying. On the one hand,
they want to portray you as some sort of a robotic patsy for
big government who does not think for himself. Yesterday, one
of my Democratic colleagues even suggested that the Bush
administration was trying to manipulate you to give responses
favorable to them in this hearing. Now, you quite rightly said,
and I think you were fairly restrained about saying it, that
you have been a judge for 15 years and are quite capable of
thinking for yourself.
On the other hand, then your critics then turn it around
and attack you for supposedly dissenting too much, as if you
should actually stop doing all that thinking for yourself and
just fall in line with the majority in all of your cases.
Now, Judge, I know that appeals court judges--that the
appeals courts themselves are collegial bodies, but how do you
view dissenting from your colleagues? How do you decide when to
do it? How do you know how often you dissent in your court, or
do you know how often you dissent in your court and whether it
is out of step with your colleagues? Could you give us some
answers there?
Judge Alito. Yes. I think that it is important for a multi-
member court to issue a judgment and to speak clearly to the
lower courts and the parties. And so when I've been in a
position where taking an independent position would result in
the absence of a judgment. I had gone out of my way to make
sure that there was a judgment, that there was a majority
opinion. An example of that is the Rappa case where we were
really divided three ways, and my position was close to Judge
Becker's opinion, and Judge Becker had the opinion-writing
assignment, and I issued an opinion saying, ``I don't
completely agree with the way Judge Becker analyzed this issue.
I would analyze it differently. But I'm joining his opinion so
that there is a majority opinion, so that there is a clear
statement of the law for the guidance of the parties.'' I think
that's the first principle.
Second is that judges should be respectful of each other's
views, and I don't have any--I have tried never to write a
dissenting opinion or respond in a majority opinion to a
dissenting opinion in a way that was not completely respectful
of the views of the other members of the court.
It's useful to dissent if there's a chance that the case
may go en banc, and that's happened in a number of cases where
I've dissented. It's useful to dissent if there is a chance
that the case may go to the Supreme Court and so that the
Supreme Court will have the benefit of a different expression
of views, and there have been cases--
Senator Hatch. Well, would it surprise you to know that you
have dissented only 79 times in nearly 5,000 cases in which you
have participated? That comes to about 1.6 percent, which is
considerably lower than most others who have been on the
appellate courts. And I would observe that the Washington Post
concluded in an editorial that your dissenting opinions ``are
the work of a serious and scholarly judge whose arguments
deserve respect.'' I certainly agree wholeheartedly with that
assessment.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Hatch.
Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
Judge Alito, I hadn't planned to get into Vanguard on this
particular round, but I chaired those hearings when you were
promoted to the circuit court, and I was also the one that
filed those questions which you responded to. And you responded
under oath when you promised the Committee that you would
recuse yourself on Vanguard issues.
Now I am just hearing from you that you believe that that
pledge was somehow conditioned. Unlike my friend--and he is my
friend--from Iowa that says, well, a pledge is just a pledge,
it is like any political pledge around here. It is a political
promise and doesn't carry much weight.
That is not my opinion, and I don't think it is the opinion
of most of the Members of this body. You made a pledge to the
Senate, effectively to the American people, that you were going
to recuse yourself. Now you say, well, it was just for an
initial time, and I think 12 years is more than I really had in
mind, or you just qualified your answer.
How long, when you made that pledge and that promise to the
Committee, how long did you intend to keep it?
Judge Alito. Well, Senator--
Senator Kennedy. And when that time was up, did you ever
imagine that you might get back to the Committee and say, ``I
believe my time is up on Vanguard''?
Judge Alito. Well, Senator, the statement that I--the
nature of the question that I was responding to did not figure
in the way the Monga case was handled, and I thought I made
that clear yesterday. I was following throughout my time on the
bench the practice of going beyond the code, and had I focused
on this issue when the matter came before me, I would have
recused myself at that time, as I later did.
But in answer to Senator Hatch's question, looking at that
question today and looking at the answer, the question was:
What do you intend to do during your initial period of service?
And I think that that's what the answer has to be read as
responding to. But just to be clear, that was not--I'm not
saying that that's why this played out the way it did. I'm just
saying that's how I think the question and the answer--that's
how I think the question and any response to the answer by any
nominee needs to be interpreted.
Senator Kennedy. Well, if there is someone that can just
understand what you just told us, I would be interested in it,
because I don't.
Senator Hatch. Well, I will be glad to explain it.
Senator Kennedy. Well, if--Mr. Chairman.
[Laughter.]
Senator Kennedy. You in response to Senator Hatch did not
believe you were bound by the promise because you said in your
mind you felt that it was just for the initial period of it.
That is another issue, because initially it was meant to
include the investments that you had at that particular time.
You might have those investments and then discard an investment
and, therefore, no longer have a conflict. That is what--as the
asker of the question had intended. But you have added another
wrinkle to it. You have just indicated that when you made a
pledge to the Committee that you were going to recuse yourself,
that you thought that at some time you were going to be
released. And I would just like to know how long that was going
to be. Was that going to be 2 years? Was it going to be 3
years? Was it going to be 5 years? When did you feel that you
were going to be released if that--
Judge Alito. Well, Senator, I--
Senator Kennedy [continuing]. If we followed your
interpretation?
Judge Alito. Senator, I did not rely on that time
limitation in relation to what I did in the Monga case, and I
hope I have made that clear. If I didn't in my previous answer,
I do want to make it clear. I did not rely on that in my
handling of the Monga case.
Looking at the question now, where it says ``initial period
of service,'' I would say that 12 years late is not the initial
period of service. But that was not--
Senator Kennedy. When did it stop, then? When did you think
that your pledge to the Committee halted, after how many years?
Six months?
Judge Alito. Well, Senator, I don't--
Senator Kennedy. What did you intend at the time that you
made the pledge? What was in your mind at that time? I am not
interested in what is in your mind at this time, but what was
in your mind at that time.
Judge Alito. I can't specifically recall what was in my
mind at that time, but I'll tell you what I'm pretty sure I had
in mind. I was not a judge, and I was being considered for a
judicial position. And what I was trying to express was
basically the policy that I followed during all my years on the
bench, which is to bend over backwards to make sure that I
didn't do anything that came close to violating the code of
conduct or give anybody the impression that I was doing
anything that was improper.
Senator Kennedy. The last question on this is: How long,
then, when you made the promise under oath to the Committee
that you were going to recuse yourself--and you understand that
now to be--in your own interpretation just to be the initial
time--how long did you think that that pledge and promise
lasted?
Judge Alito. Senator, as I said--
Senator Kennedy. That is my question.
Judge Alito. And, Senator, as I said, I can't tell you 15
years later exactly what I thought when I read that question.
It refers to the initial period of service, and looking at it
now, it doesn't seem to me that 12 years later is the initial
period of service.
Senator Kennedy. Well, my question to you, which I guess
I'm not going to get an answer to, is: When did it? Is 10
years--how about 3 years, is that--
Judge Alito. Well, I don't know exactly what the time
limitation would be, but 12 years does seem to me not to be the
initial period.
Senator Kennedy. We will come back. I just want to mention,
in fairness to my friend and colleague--both my friends,
Senator Hatch and Senator Durbin, in Senator Hatch's quoting of
Senator Durbin that you responded on the question of the Roe v.
Wade in the--when you were in the circuit court, I have here
the record that said--of the hearings of Roberts, and the
question was asked by Senator Specter to Judge Roberts during
the time of his consideration for the Supreme Court. So I want
that to be--Senator Durbin can clarify the record, but I wanted
that to be clarified so that there wasn't a confusion about it.
Now, in the time that I have, Judge Alito, I listened
carefully to responses that you gave to Senator Leahy about the
CAP organization at Princeton. And I listened to other
responses that you gave to our colleagues, and again to Senator
Durbin earlier today. But I have just some questions on this to
at least try to finalize, at least in my mind, and it might be
useful in the Committee's mind as well.
You had indicated in your 1985 job application that you
were a member of the Federalist Society for Law and Public
Policy and a regular participant at its luncheon and a member
of the Concerned Alumni of Princeton University, a conservative
alumni group. And you said yesterday that you racked your
memory about the issue and really had no specific recollection
of the organization. Is that correct?
Judge Alito. I have no specific recollection of joining the
organization.
Senator Kennedy. And you also said yesterday and today to
Senator Durbin that you very likely joined CAP because of your
concern over the ROTC program being kicked off campus. Is that
correct?
Judge Alito. Well, what I said specifically was that I
racked my memory as to why I might have joined, and the issue
that had bothered me for a period of time as an undergraduate
and in the 1980s, around the time of this--when I made this
statement, was the issue of ROTC. This was the issue about the
administration of Princeton that bothered me. I had a high
regard for Princeton in many respects in general and had
participated in a lot of their activities. But this issue
bothered me a great deal at various times. That's what I said.
Senator Kennedy. And, finally, you said yesterday that you
very likely joined CAP around 1985 just before you were
applying to the high-level job in the Justice Department under
President Ronald Reagan. I think that is correct.
Judge Alito. Senator, what I specifically said, as I
recall, is that if I had done anything substantial in relation
to this group, including renewing my membership, I would
remember that. And I do not remember that.
Senator Kennedy. So I want to ask a few things that I hope
can clear this up. You have no memory of being a member. You
graduated from Princeton in 1972, the same year CAP was
founded. You call CAP a conservative alumni group.
It also published a publication called Prospect, which
includes articles by CAP members about the policies that the
organization promoted. You are familiar with that?
Judge Alito. I don't recall seeing the magazine. I might--
Senator Kennedy. But you know that they had a magazine?
Judge Alito. I have been--I have learned of that in recent
weeks.
Senator Kennedy. So a 1983 Prospect essay titled ``In
Defense of Elitism'' stated, ``People nowadays just don't seem
to know their place. Everywhere one turns, blacks and Hispanics
are demanding jobs simply because they're black and Hispanic.
The physically handicapped are trying to gain equal
representation in professional sports, and homosexuals are
demanding that Government vouchsafe them the right to bear
children.''
Did you read that, that article?
Senator Feinstein. Finish the last line.
Senator Kennedy. Finish the last line. ``And homosexuals
are''--
Senator Feinstein. ``And now here come women.''
Senator Kennedy. If the Senator would let me just--
Senator Feinstein. Yes, I--
[Laughter.]
Senator Kennedy. Can I get 2 more minutes from my friend?
Just to continue along--I apologize, Judge. Did you read this
article?
Judge Alito. I feel confident that I didn't. If that--I am
not familiar with the article, and I don't have a context in
which those things were said. But they are antithetical to--
Senator Kennedy. Well, could you think of any context that
they could be--
Judge Alito. It's hard to imagine. If that's what anybody
was endorsing, I disagree with all of that. I would never
endorse it. I never have endorsed it. Had I thought that that's
what this organization stood for, I would never associate
myself with it in any way.
Senator Kennedy. The June 1984 edition of Prospect magazine
contains a short article on AIDS. I know that we have come a
long way since then in our understanding of the disease, but
even for that time, the insensitivity of statements in this
article are breathtaking. It announces that a team of doctors
has found that the AIDS virus in Rhesus monkeys was similar to
the virus occurring in human beings. And the article then goes
on with this terrible statement: ``Now the scientist must find
humans--or, rather, homosexuals to submit themselves to
experimental treatment. Perhaps Princeton's Gay Alliance may
want to hold an election.''
You didn't read that article?
Judge Alito. I feel confident that I didn't, Senator,
because I would not have anything to do with statements of that
nature.
Senator Kennedy. In 1973, a year after you graduated, and
during your first year at Yale Law School, former Senator Bill
Bradley very publicly disassociated himself with CAP because of
its right-wing views and unsupported allegations about the
university. His letter of resignation was published in the
Prospect, garnered much attention on campus and among the
alumni.
Were you aware at the time of that, at the time that you
listed the organization in your application?
Judge Alito. I don't think I was aware of that until recent
weeks when I was informed of it.
Senator Kennedy. And in 1974, an alumni panel including
now-Senator Frist unanimously concluded that CAP had presented
a distorted, narrow, hostile view of the university. Were you
aware of that at the time of the job application?
Judge Alito. I was not aware of it until very recently.
Senator Kennedy. In 1980, the New York Times article about
the coeducation of Princeton, CAP is described as an
organization against the admittance of women. In 1980, you were
working as an Assistant U.S. Attorney in Trenton, New Jersey.
Did you read the New York Times? Did you see this article?
Judge Alito. I don't believe that I saw the article.
Senator Kennedy. And did you read a letter from CAP mailed
in 1984--this is the year before you put CAP on your
application--to every living alumni--to every living alumni, so
I assume you received it--which declared Princeton is no longer
the university you knew it to be. As evidence, among other
reasons, it cited the fact that admission rates for African-
Americans and Hispanics were on the rise while those of alumni
children were falling, and Princeton's president, at the time,
had urged the then-all-male eating clubs to admit females.
And in December 1984, President William Bowen responded by
sending his own letter. This is the president of Princeton--he
responded by sending his own letter to all of the alumni in
which he called CAP's letter callous and outrageous. This
letter was the subject of a January 1985 Wall Street Journal
editorial, congratulating President Bowen for engaging his
critics in a free and open debate. This would be right about
the time that you told Senator Kyl you probably joined the
organization. Did you receive the Bowen letter or did you read
the Wall Street Journal, which was pretty familiar reading for
certainly a lot of people that were in the Reagan
administration?
Judge Alito. Senator, I testified to everything that I can
recall relating to this and I do not recall knowing any of
these things about the organization, and many of the things
that you've mentioned are things that I have always stood
against. In your description of the letter that prompted
President Bowen's letter, there is talk about returning the
Princeton that used to be. There is talk about eating clubs,
about all-male eating clubs. There is talk about the admission
of alumni children. There is opposition to opening up the
admissions process.
None of that is something that I would identify with. I was
not the son of an alumnus. I was not a member of an eating
club. I was not a member of an eating facility that was
selective. I was not a member of an all-male eating facility
and I would not have identified with any of that. If I had
received any information at any point regarding any of the
matters that you have referred to in relation to this
organization, I would never have had anything to do with it.
Senator Kennedy. Do you think that these are conservative
views?
Judge Alito. Senator, whatever I knew about this
organization in 1985, I identified as conservative. I don't
identify those views as conservative. What I do recall as an
issue that bothered me in relation to the Princeton
administration as an undergraduate and continuing into the
1980s was their treatment of the ROTC unit and their general
attitude toward the military, which they did not treat with the
respect that I thought was deserving. The idea that it was
beneath Princeton to have an ROTC unit on campus was an
offensive idea to me.
Senator Kennedy. Just moving on, you mentioned--and I only
have a few minutes left--you joined CAP because of your concern
about keeping ROTC on campus. Now, ROTC was a fairly
contentious issue on Princeton's campus in the early 1970s. The
program was slated to be terminated in 1970, when you were an
undergraduate. By 1973, 1 year after you graduated, ROTC had
returned to campus and was no longer a source of debate. And
from what I can tell, by 1985, it was basically a dead issue.
In fact, my staff reviewed the editions of Prospect from 1983
to 1985 and could find only one mention of ROTC, and it appears
in a 1985 issue released for homecoming that year that says,
``ROTC is Popular Once Again.'' Here is the Prospect, 1985,
``ROTC is Popular Once Again.'' This is just about the time
that you were submitting this organization in your job
application.
Judge Alito. Senator--I'm sorry.
Senator Kennedy. Briefly, please.
Judge Alito. It's my recollection that this was a
continuing source of controversy. There were people on the
campus, members of the faculty, as I recall, who wanted the
unit removed from the campus. There was certainly controversy
about whether students could get credit for courses, which I
believe was a military requirement for the maintenance of the
unit. There was controversy, as I recall, about the status of
the instructors, whether they could be given any kind of a
status in relation to the faculty. I don't know the exact
dates, but it's my recollection that this was a continuing
source of controversy.
Senator Kennedy. Mr. Chairman, my time is running out. I
had wanted to just wind up on a few more brief questions on
this. But I have to say that Judge Alito, that his explanations
about his membership in this sort of radical group and why you
listed it on your job application are extremely troubling. In
fact, I don't think that they add up.
Last month, I sent a letter to Senator Specter asking a
number of questions about your membership in CAP and I asked
Senator Specter to make a formal Committee request for the
documents in the possession of the Library of Congress as part
of the William Rusher papers. Mr. Rusher was the publisher of
the National Review, was an active founder and leader of CAP.
Do you have any hesitation or reason for us not to look at
those documents?
Judge Alito. They're not my documents, Senator, and I have
no--
Senator Kennedy. Do you think they would be helpful to us?
Judge Alito [continuing]. Opinion about it whatsoever.
Senator Kennedy. Do you think they would be helpful?
Judge Alito. Senator, I don't believe I had any active
involvement with this group.
Senator Kennedy. Well--
Judge Alito. I have racked my memory and I can't recall
anything, and if I had been involved actively in any way in the
group, I'm sure that I would remember that.
Senator Kennedy. Mr. Chairman, if I could have your
attention, I think we ought to vote on issuing a subpoena to
the custodian of those CAP records. I want to do that at an
appropriate time. I move that the Committee go into executive
session for the purpose of voting on the issuance of the
subpoena of those records.
Chairman Specter. We will consider that, Senator Kennedy.
There are many, many requests which are coming to me from many
quarters. Quite candidly, I view the request, if it is really a
matter of importance, you and I see each other all the time.
You have never mentioned it to me. I do not ascribe a great
deal of weight. We actually didn't get a letter, but--
Senator Kennedy. You did get a letter, are you saying?
Chairman Specter. Well, now wait a minute. You don't know
what I got. I am about to--
Senator Kennedy. Of course, I do, Senator, since I sent it.
Chairman Specter. Well, the sender--
Senator Kennedy. I have got it right here.
Chairman Specter [continuing]. Doesn't necessarily know
what the recipient gets, Senator Kennedy.
Senator Kennedy. I have got it right here.
Chairman Specter. You are not in the position to say what I
received. If you will bear with me for just one minute--
Senator Kennedy. But I am in a position to say what I sent
to you on December 22, so I renew my--
Chairman Specter. You are in a position to tell me what you
sent.
Senator Kennedy. I renew my request, Senator, and if I am
going to be denied, then I would appeal the decision of the
Chair. I think we are entitled to this information. It deals
with the fundamental issues of equality and discrimination.
This nominee has indicated he has no objection to us seeing
these issues. We have gone over the questions and we are
entitled to get that kind of information. And if you are going
to rule it out of order, I want to have a vote on that here on
our Committee.
Chairman Specter. Well, don't be premature, Senator
Kennedy. I am not about to make a ruling on this state of the
record. I hope you won't mind if I consider it, and I hope you
won't mind if I give you the specifics that there was no letter
which I received. I take umbrage at your telling me what I
received. I don't mind your telling me what you mailed. But
there is a big difference between what is mailed and what is
received and you know that.
We are going to move on now. Senator Grassley?
Senator Kennedy. Mr. Chairman, I would appeal the ruling of
the Chair on this. I want--
Chairman Specter. There has been no ruling of the Chair,
Senator Kennedy.
Senator Kennedy. But my request is that we go into
executive session for the sole purpose of voting on a subpoena
for these records that are held over at the Library of
Congress, for that purpose and that purpose only, and if I am
going to be denied that, I would want to give notice to the
Chair that you are going to have it again and again and again
and we are going to have votes of this Committee again and
again and again until we have a resolution. I think that--
Chairman Specter. Well, Senator Kennedy, I am not concerned
about your threats to have votes again, again, and again, and I
am the Chairman of this Committee and I have heard your request
and I will consider it, and I am not going to have you run this
Committee and decide when we are going to go into executive
session.
We are in the middle of a round of hearings. This is the
first time you have personally called it to my attention and
this is the first time that I have focused on it and I will
consider it in due course.
Now, we will move to Senator Grassley for 20 minutes.
Senator Grassley. We have gone over this same ground many
times. I suppose, maybe to some extent, both sides are guilty
of that. We have an old saying in the Midwest about if a horse
is dead, quit beating it, and I think several horses have been
beaten to death, particularly on the other side, and you have
been very consistent in your answers and I thank you. I think
that that speaks to the intellectual honesty of your positions.
It is kind of like we are in the fourth quarter of a
football game and you are the quarterback and your team is way
ahead here in the fourth quarter. Opponents are very desperate,
trying to sack you, and aren't doing a very good job of it.
They haven't hit you all day now for 2 days. You are going to
keep getting these last-minute ``Hail Marys'' thrown at you, so
just bear with us.
I want to compliment you, first of all, before I ask some
questions, and I just did to some extent about the consistency
of your testimony, but I think it has been good. I think under
very difficult circumstances, you have handled yourself very
well, being responsive, forthright, thoughtful. I sense in you
a person that is very sincere, and obviously, I don't know you
except this appearance here and the small period of time we
spent in my office. It seems like you have modesty. That is a
breath of fresh air, demonstrating a command of and very much a
respect for the law and the Constitution, of course.
This is all stuff that we ought to be looking for in the
tradition of Alexander Hamilton saying the role of the Senate
is to make sure that only competent people get on the Court and
that political hacks don't get on the Court. You are surely no
political hack and you are very competent, and that has been
demonstrated with your fair and open-minded approach to your
being a judicial person.
It is too bad that we are getting this misconstruing of
your record or the answers, the claim that you have not written
a single opinion on the merits in favor of a person of color
alleging race discrimination on the job in your 15 years on the
bench. I have looked at a lot of opinions you have given and it
is just not true. Your record shows that you ruled in favor of
minorities making allegations of racial discrimination in
employment, not once but in a number of cases.
The claim that you acted unethically in the Vanguard case
just is not true. You did nothing improper and actually went
beyond the rule to ensure compliance. The claim that you would
support an unchecked Executive is just not true. Your record
shows that you have repeatedly ruled against the government and
that you have told us no one, including the President, is above
the law.
The claim that you have ruled the vast majority of the time
against the claims of individual citizens in favor of the
government and large corporations is just not true. The
reality, as I see it, is that you have found in favor of the
little guy in numerous cases, but because of who was right and
who was wrong, not just because you have got a bias one way or
the other. Your critics are, I think, grasping at any straw to
tarnish your record, and that is unfortunate.
Judge Alito, in your opening statement, you said, and I
hope I quote you accurately, no person in this country, no
matter how high or powerful, is above the law, and no person in
this country is beneath the law. You didn't go into detail
about what you meant. I think it is quite clear, above the law,
but give us that diverse opinion, above the law versus beneath
the law.
Judge Alito. Every person has equal rights under the law in
this country, and that involves people who have no money--that
includes people who have no money. That includes people who do
not hold any higher or prestigious position. It includes people
who are citizens and people who are not citizens. Everybody is
entitled to be treated equally under the law, and I think
that's one of the greatest things about our country and about
our legal system.
Senator Grassley. You have been criticized for being
hostile to voting rights based upon a statement that you wrote
20 years ago when you were applying for a job with the Justice
Department during the Reagan years. In fact, yesterday, some of
my colleagues repeated that assertion, but it is apparent to me
that it is off the mark.
Specifically, in your 1985 statement, you wrote that you
became interested in constitutional law and went to law school
in part because you had some disagreements over Warren Court
decisions, including some regarding reapportionment. Of course,
that is understandable because the Warren Court had handed down
very many decisions on reapportionment and they had been
criticized as unworkable and that, in fact, the Supreme Court
backed away from some. So there was disagreement, there was
debate over those issues at that time, probably a lot less
today but still recently there is going to be a case going to
the Court.
Some have questioned your 1985 statement regarding
electoral reapportionment, that is how districts are drawn.
They have suggested that you are hostile to the principle of
one person/one vote. Clarify for me. Nowhere in your 1985
statement did I find that you wrote that you ever disagreed
with the principle of one person/one vote, did you?
Judge Alito. I never disagreed with that principle,
Senator. What I disagreed with when I was in college was the
application of the principle in some of the--the elaboration of
the principle in some of the late Warren Court decisions, and
this grew out of my father's work with the New Jersey
legislature. He had been the Secretary to the State
Constitutional Convention in 1966, which redrew the provisions
of the State Constitution relating to the composition of the
legislature in an effort to bring it into compliance with the
one person/one vote standard.
These provisions, however, because they tried to respect
county and municipal lines, as I recall, resulted in population
deviations of under 10 percent, but those deviations were much
higher than the ones that the Supreme Court said in the late
decisions that I'm talking about would be tolerated regarding
congressional districts. There was a belief that that principle
would be applied across the board, both to congressional
districts and to legislative districts, and that would have
wiped out the plan that had been adopted. And I was quite
familiar with all of this, and it seemed to me an instance of
taking a good principle, which is one person/one vote, and
taking it to extremes, requiring that districts be exactly
equal in population, which did not seem to me to be a sensible
idea.
Senator Grassley. Isn't it true that the words ``one
person/one vote'' weren't even in your statement?
Judge Alito. Those words are not in my statement.
Senator Grassley. Just to make--go ahead.
Judge Alito. Just to add, Senator, that this issue of how
nearly exact the districts had to be was an issue that was
working its way to the Supreme Court or maybe it had actually
been there--I've forgotten the exact chronology--at the time of
the 1985 statement in Karcher v. Daggett, which involved the
New Jersey Congressional districting plan.
Senator Grassley. Well, just to make sure that there is no
lingering confusion then, let me ask you straight out: Do you
believe in the principle of one person/one vote?
Judge Alito. I do. I think it's a fundamental part of our
constitutional law.
Senator Grassley. I find it curious that the same people
who are questioning your integrity are either asserting or
implying that you took a position against the principle of one
man or one person/one vote when it is demonstrably false that
you ever did.
Further, on another point, some have suggested that you are
hostile to women and minorities. Obviously, I don't think that
is the case. I think you have demonstrated that sincerity in
just very recent statements today.
Now, in the Washington Post article, Alberto Rivas, a
criminal defense lawyer and a Democrat, said you ``took steps
to diversify an office''--this is when you were U.S. Attorney.
You ``took steps to diversify an office that had a reputation
as something of a white boys' club.'' Rivas said that when you
hired him at the U.S. Attorney's Office in New Jersey, he was
the only Latino lawyer in the office, and by the time you left
that office, Rivas said there were four Latino lawyers as well
as African-American lawyers. Your commitment also included
advancing women attorneys and promoting them into senior
positions during your tenure as U.S. Attorney. And I understand
that when you started in that office, only two of the 15
divisional leadership attorneys, chiefs or deputy chiefs, or
attorneys in charge were women, and 2 years later you had more
than doubled that number, and 5 of the 17 divisional leadership
attorneys were women.
Now, on the Federal bench, you have hired many women and
minorities to serve as law clerks, and you had a discussion
with Senator Brownback earlier mentioning some very
complimentary things that Cathy Fleming, your former deputy
chief and acting chief of the Special Prosecutions Unit in the
New Jersey office, and David Walk, a former lawyer in that
office, had to say about you and your treatment of women and
minorities. They both, being lifelong Democrats, vouched in
those statements for your qualities as a judge and your respect
for individual rights.
And, Mr. Chairman, if these letters--and they may have
already been put in the record, but if they aren't in the
record, I would like to have those put in the record.
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Grassley. Several of your dissents have been
referred to today, or in the last 2 days, and so I wanted to
comment on this suggestion that you are way out of the
mainstream because you have written a lot of dissenting
opinions. I don't find that you have written so many as a
percentage of your total thing, but whatever reason you did it,
you did it with good reason.
But judges disagree all the time, and that is to be
expected, and obviously there is nothing wrong with that. And,
in fact, the Supreme Court has agreed with your dissents on
several occasions, I recall from reading a synopsis of your
opinions, and the reality is, as I see it, you don't disagree
with majority opinions more frequently than most Federal
appeals judges do in similar cases. And of more than 4,800
cases--and that we got from the Washington Post. But of more
than 4,800 cases that you decided during your tenure on the
Third Circuit, you dissented only in 79 cases, which would be
only 1.6 percent of all those cases.
So, you know, I don't think that there is anything very
extraordinary about the number of dissents or the dissents, and
particularly when the Supreme Court has agreed with your
opinion in reversing the Third Circuit.
I would like to go to the issue of some historical basis
for our constitutional law. The role of historical precedent in
constitutional laws I find very interesting. For example, qui
tam lawsuits have been a feature of Anglo-American law since
the Middle Ages and have been a common feature of Federal
statutory law even since the 1st Congress. Yet their
constitutionality has never been clearly adjudicated by the
Supreme Court.
What role does longstanding, historical practice play in
assessing the constitutionality of a Government act or
practice?
Judge Alito. Well, it can be very relevant in many
instances. One place where this has come up is when a statute
was passed by the 1st Congress--and this has happened on a
number of occasions. The 1st Congress, which was responsible
for the Bill of Rights, passed a number of statutes relating to
provisions of the Bill of Rights, and the Supreme Court has
often looked to those and said this is the same Congress that
proposed the Bill of Rights, and they did this in enacting a
statute, so that gives us a good indication of what they had in
mind. And when there has been a legal practice that has existed
for--that predated the Constitution, then that certainly is
relevant in considering its constitutionality.
Senator Grassley. I would like to have you think about
legislative history and how you might use it or how often you
might use it, or even how often--maybe if you got a rough
quantifiable answer, how often you might use it. The Supreme
Court, I think, has quite often stated legislative history of a
particular bill would be critical in their interpretation of
it. What is your position with respect to legislative history?
How important is it to you? And how have you utilized history
in interpreting statutes?
Judge Alito. I have often looked to legislative history in
the cases that I've written concerning statutory
interpretation. And I think if anybody looks at those opinions,
they will see that.
When I interpret a statute, I do begin with the text of the
statute. I think that certainly is the clearest indication of
what Congress as a whole had in mind in passing the statute.
And sometimes the language of the statute is dispositive and it
is really--the decision can be made based on the language of
the statute itself.
But when there is an ambiguity in the statute, I think it
is entirely legitimate to look to legislative history, and as I
said, I have often done that. I think it needs to be done with
caution. Just because one Member of Congress said something on
the floor, obviously that doesn't necessarily reflect the view
of the majority who voted for the legislation. So it has to be
done carefully and I think with a realistic evaluation of the
legislative process, but I'm not one of the judges who thinks
that you should never look to legislative history. I think it
has its place.
Senator Grassley. Are you familiar with the legal arguments
that some opponents of the False Claims Act have made to the
effect that its qui tam provisions are unconstitutional under
Articles II and III? And if you are, do you have any opinion on
those arguments that are used without prejudicing any review of
it you might give?
Judge Alito. Well, the issue hasn't come up before me. I
have a little bit of familiarity with the arguments. And I
don't think I--I think that all I can say on the question is
that the qui tam statute is of historical origin, as you
pointed out, and we have seen what it has produced in terms of
tangible results in the cases that have been brought under the
statute in recent years. And should an issue relating to its
constitutionality come before me, either on the Third Circuit
or the Supreme Court, then I would have to follow that whole
judicial process that I've described and evaluate the arguments
and certainly study the question much more thoroughly than I
have done up to this point.
Senator Grassley. You may have just answered this question,
but I would like to get it explicitly on the record. Have you
ever written or spoken publicly about the issue of the
constitutionality of qui tam or any other provision of the
False Claims Act, and if so, the circumstances and the context?
Judge Alito. I'm quite sure I've never written or spoken
about its constitutionality.
Senator Grassley. Do you feel that you have any bias
against the False Claims Act or Whistle-Blower Protection Act
that would impact the ability of you to fairly decide cases
involving those issues?
Judge Alito. I certainly don't, Senator.
Senator Grassley. I would like to ask you about the opinion
you authored in Mystic. As author of the legislation that we
call the False Claims Act, it has returned billions of dollars
to the Federal Government and has become a very effective tool
in combating fraud against the American taxpayers. So I follow
court cases on this as much as I can.
The False Claims Act contains a provision that
jurisdictionally bars lawsuits based on public disclosure,
including such things as administrative reports and
investigations. The purpose of this provision is to prevent an
individual who has read about a description of a fraud in a
newspaper report, public document, or Government report from
simply taking that material and using it as a basis for a case.
In Mystic, the qui tam relater had made a FOIA request and
utilized some of the documents he received in response to FOIA
in filing that qui tam case. In your opinion, you determined
that the qui tam relater had based his False Claims Act lawsuit
on public disclosure made in an administrative report or
investigation. To come to that conclusion, you had to equate
that the qui tam relater, who was acting on behalf of the
Government, as the public. But I think it is clear that
Congress did not equate such qui tam relaters with the public
when it wrote the public disclosure bar provision. That is
because if Congress had done so, then everything qui tam
relaters know is known to the public, which doesn't make any
sense.
So because my time has run out, I don't want to go on with
a question, but do you see what I am getting at? Could you
react to that?
Judge Alito. I do, and I understand that's a very strong
argument. I remember that I found that a very difficult issue
to deal with, and I spent a lot of time on it, and my view of
the matter elicited a strong and a very persuasive, I think,
dissent by one of my colleagues. So it is a tough issue, and if
that were to come up again, I would have to really reconsider
it.
Senator Grassley. Just in your last sentence, you gave
pretty much the same answer that Judge Roberts did. He had
dissented in a case, too, and it kind of worries me when we get
two of you on the Court that may be unfamiliar with
congressional intent on false claims.
Thank you very much.
Chairman Specter. Thank you, Senator Grassley.
That will be all. We will recess until 2 o'clock.
Senator Kennedy. Mr. Chairman?
Chairman Specter. Yes, Senator Kennedy?
Senator Kennedy. Just as a quick matter of personal
privilege, I would like to include in the record the response
from your staff to this letter that I wrote to you on the 22nd
and also my staff response to your staff's response to the
letter, include them in the record.
Chairman Specter. Like all requests, unanimous consent for
the record, they are granted.
Senator Durbin. Mr. Chairman? Mr. Chairman?
Chairman Specter. Senator Durbin?
Senator Durbin. Mr. Chairman, I--
Chairman Specter. I just want it known that we are now into
the lunch hour, but go ahead, Senator Durbin.
Senator Durbin. Mr. Chairman, I sent you a note and you
were kind enough to come and speak to me about it. I would just
ask for 2 minutes time to respond to comments made by members
of the Committee mentioning my name after I asked questions
this morning. You have asked if I would wait until Senator
Coburn returned to the Committee, and in deference to the
respect to my colleague, I will do that.
Senator Leahy. Could I also, Mr. Chairman, on this--
Chairman Specter. Well, I appreciate it very much, waiting
for Senator Coburn. I think it is a good practice, when
comments are made about other members, to do it while they are
here or to ask their joinder. And that is why if you have
something to say to Senator Coburn, I want him here; otherwise,
he will have something to say and you are not here.
Senator Leahy. In fact--
Senator Durbin. He did already, Mr. Chairman.
Chairman Specter. Now Senator Leahy is recognized into the
lunch hour.
Senator Leahy. Into the lunch hour. Mr. Chairman, if I
might, I came very close to objecting when Senator Coburn was
speaking and referring to Senator Durbin. Senator Coburn is a
new--he is a valued member of the Committee, of course but new,
and I wanted to say that I have been here for 30 years. I have
always made it a point, if I am going to raise something, to
get word to the other party. I think it is a good way of doing
it, and you have been totally fair in that.
I would urge Senators, if they are going to start quoting
each other, that maybe we have ``quote time'' or something like
that. Senator Durbin is absolutely right in wanting to be able
to respond to what was said.
Chairman Specter. Well, I think that we might agree on best
practice, but when you deal with Senators, my view is to give
Senators great latitude as to what they want to undertake to
do. And if Senator Coburn wants to make a comment without
Senator Durbin here, I think that is going to be his call,
although my preference would be to the contrary. But when
Senator Durbin wants time to respond, I immediately sent word
to him he would have the time that he requested. And then I
sent for Senator Coburn. And Senator Coburn is in a meeting
that he couldn't leave, but we will get the two of you together
fairly promptly.
Senator Durbin. Thank you.
Chairman Specter. Lunchtime.
[Whereupon, at 1:05 p.m., the Committee was adjourned, to
reconvene at 2 p.m., this same day.]
[AFTERNOON SESSION]
Chairman Specter. The Committee will resume, and it is now
Senator Biden's turn for his second round for 20 minutes.
Senator Biden?
Senator Biden. Thank you very much, Mr. Chairman.
Judge, good to see you. As I said to you--we happened to
run into each other in the hallway coming in--what I would like
to do, if I may, is go back and revisit two areas that you were
questioned on yesterday, and a little bit maybe today. I do not
recall actually. I think it was yesterday. One is the Casey
case and I want to make sure I understand because I am still a
little bit puzzled by your reasoning, but let me start off and
make it clear.
From my perspective, the abortion is a different--I am
trying to figure out how you arrived at interpreting a Supreme
Court Justice's standard that was being applied, and how it
came out differently than others. Yesterday you said when I
think it was Senator Kohl asked you, that you agreed with
Justice O'Connor, ``that you look at the group that's affected,
not the group that's unaffected.'' But when you wrote your
dissent, you said, and I quote, ``It seems safe to assume that
some percentage, despite an initial inclination not to tell
their husbands, would notify their husbands without suffering
substantial ill effects, acknowledging some would suffer
substantial ill effects.''
Can you rationalize yesterday's statement and your dissent
for me? Explain it to me.
Judge Alito. Well, I think what you look at is the group
that is required to notify. You don't look at the group that's
not required to notify, so unmarried women are not examined
here because the notification requirement obviously does not
apply to them.
Then my understanding of Justice O'Connor's standard, which
was the ``more than some woman'' standard, let me put it that
way, although she didn't put it quite that strongly. She said
that it is insufficient that some women are inhibited from
having an abortion as a result of the requirement. So you look
at the people who are affected by--who are within the scope of
the provision, and then you would see how many of the people
within the scope of the provision would be inhibited from
having an abortion as a result of what was involved. You don't
look at people who aren't regulated at all, and you don't just
look at the people who would be inhibited because both of those
would not be the right thing to look at.
So in the case of--let's take the case of the informed
consent requirement. You'd look at everybody who was required
to receive the information that was within the informed consent
provision, and then you would ask how many of the people, how
many of the women who were regulated by this, would be
inhibited from having an abortion as a result of the
requirement. That was my understanding and that is my
understanding of what she was talking about.
Senator Biden. You referenced in your dissent in Casey the
Thornburgh case. What was the issue in Thornburgh?
Judge Alito. Thornburgh concerned--
Senator Biden. Excuse me. That prompted her to come up with
the statement that you referenced, which was that it does not
have to affect everyone?
Judge Alito. Well, she was setting our her understanding of
what the standard was, of the Undue Burden Standard. Now, in
Thornburgh there were several provisions of a previous version
of the Pennsylvania statute at issue. There was an informed
consent provision, as I recall. There was a provision relating
to health insurance. There was a provision relating to
notification of a minor's parents. There were a number of
provisions involved. And my recollection is that when she made
the statement, she was talking about the Undue Burden Standard
itself. It was an explanation of what she meant by the Undue
Burden Standard.
Senator Biden. As I went back and read it, my understanding
was--and I will not, in the interest of time, read her entire
two paragraphs here--but the part of Casey which she found to
be a particular problem as being declared unconstitutional by
her colleagues was where a doctor, an obstetrician would have
to read to a woman certain verbiage that would explain the pros
and cons about an abortion, or at least downsides of an
abortion. And she said the State has an interest in promoting
life, and so even though some women might be offended by that,
it was still OK, it was still constitutional.
That language is the language that the discussion about
even though some women would be affected, you transposed, in
good conscience, to a case where notification to a husband was
required. And one of the things that I had some difficulty with
is whether or not there really were comparable issues here. In
one case it was about whether or not a woman would fear for her
life, for example, an exception was given, if she informed her
husband. Another case, it was not about that that O'Connor was
referring to, she was referring to about whether or not it put
an undue burden on a woman to be told, ``By the way, this can
happen when you have an abortion, and this is the state the
fetus is, et cetera.'' And that is the part that kind of
disturbs me, or that perplexes me anyway, about the real world
here.
Senator Specter references the Violence Against Women Act.
We did a lot of work on that. There is overwhelming evidence
that there are women who would be fearful of going home and
telling their husbands they are going to have an abortion, not
fearful physically, fearful that the husband had all the
economic power and said, ``I am divorcing you and I am taking
the kids and having a custody battle, and you don't have the
money to hire a lawyer.''
Are they comparable ill effects? That is, that kind of ill
effect on a woman that if she tells her husband, he is going to
sue for divorce and seek custody of the children, knowing that
he has all the economic horsepower and she has no ability to go
out and hire a significant lawyer? Is that comparable to the
doctor saying, ``By the way, if you have an abortion, here is
what happens?''
Judge Alito. No. The informed consent provision presented
an easier--easier isn't even the right word--a less difficult
question than the spousal notification provision. I don't think
there's any question about that. They both involved the same
standard, which was the Undue Burden Standard. And therefore, I
thought--and I still think that's what's said in reference to
one provision is relevant in determining what the standard was.
The big issue, when this case was before us, was whether
the standard was undue burden or not. It's funny how cases look
different after they've progressed through the Supreme Court
than they do when they're first presented to the court of
appeals. That was the most hotly contested argument before us.
Had there been any change in the Supreme Court's case law--and
the plaintiffs argued strenuously that there had not--but our
panel, after some effort, determined under the Marks standard
for determining what the holding of a case is when there's no
majority opinion, that the standard was the Undue Burden
Standard. And there just wasn't a lot to go on. I think I said
that yesterday. I looked for whatever guidance I could find.
Senator Biden. Again, I am not questioning the sincerity of
your search. Again, it gets down to the thing that keeps coming
up with me, is not that you do not care about the little guy
and all of that, that your reading of statutory language,
Supreme Court precedent, the Constitution, seems to me to not
reflect some of the genuine real-life differences that exist.
The idea that you acknowledged that some women would suffer ill
effects, substantial ill effects from informing their husbands,
but because it was only a small percentage that met the Undue
Burden test, that did not meet the Undue Burden test, it seems
to me--
Anyway, the majority disagreed with you, and I happen to
disagree with you because I guess maybe it is because we have
been so exposed to how so many women are within their
relationships can suffer significant consequences for
challenging a position that their husband does not want to
accept, whether it has to do with abortion or what school their
child goes to, and it is pretty consequential. But that is my
problem with how you arrived at your reasoning--or your
reasoning how you arrived at your conclusion.
Let me move on to another area in the interest of time
here. Yesterday there was discussion about the Family and
Medical Leave Act, and you correctly stated there were two
distinct parts of the Act, and the Hibbs case dealt with one,
and Chittister dealt with another. Can you explain that again
for me?
Judge Alito. Yes. Hibbs concerned a provision that required
employers to give employees leave to be out of work to take
care of a family member. And there was a record that employers,
State employers had given more leave for this purpose to women
than they had to men, and that was based on the stereotype that
when somebody in the family gets sick and somebody has to leave
work to take care of the family member, it's the woman and not
the man, and it reinforced the stereotype, of course, because
having such a policy would encourage, would put pressure on
women to leave for this purpose, as opposed to the man. If
there was a woman and a man in the family, and somebody had to
leave work to take care of a sick family member, and you have a
plan like this, this is going to pressure the woman to do that.
So the Hibbs court found that that was a sufficient record of
gender discrimination to justify the passage of legislation
under Section 5 of the 14th Amendment.
Chittister concerned a provision that related to leave for
personal illness, and there's no reason to think that men or
women get sick more often one than the other, or what was to
the point, that State employers had given men more sick time
than women, or women more sick time than men. And so with that
record, it was the conclusion of my court, and I believe seven
other circuits, that this was a different issue. These cases
were decided before and after Hibbs and that could not be
justified if you accept the Congruence and Proportionality
Standard.
Senator Biden. On the Congruence and Proportionality
Standard, we in the Congress thought we were speaking to that
because were you aware or your colleagues--speak for yourself,
actually, you cannot speak for them--that one in four people
taking sick leave under the Act are women for pregnancy-related
disabilities? That we, when we wrote the law, we said
explicitly that working women, we wanted the bill to protect
working women from the dangers that pregnancy-based
distinctions could be extended to limit their employment
opportunities. I mean the practical world is that a fair number
of women who are pregnant are told in the last--and I yield to
my doctor at the end of the dais on the other side--but it is
not unusual for a woman to be told that she needs to, the last
month of pregnancy or 2 months of pregnancy, have bed rest. And
if that counts against her 12 weeks, employers--we did
establish there is a record where employers say, ``Hey, look,
man, we are going to give men and women the same leave,
notwithstanding the fact that women in fact in many
circumstances--and one in four of them are pregnancy-related--
need more time because of the pregnancy.'' I mean was that
discussed by you guys or women?
Judge Alito. I'm quite certain it never was. I would have
made a reference to it in the opinion if that had been
mentioned. I am not aware of that coming up in the other
circuit opinions on the issue. We are, to a degree--we can't
know everything about the real world, and we're dependent on
the arguments that are presented to us to a degree. I don't
believe that argument was ever presented.
Senator Biden. Congress expressly stated that the purpose
of the Act was, quote, ``to minimize the potential for
employment discrimination by ensuring generally that leave is
available for eligible medical reasons, including maternity-
related disability.'' That is why the decision confuses me. I
think all you probably have to do is turn to your wife and say,
``Hey, the real world, when you are pregnant does that sometime
inhibit the amount of time you are required to be away from
your job?'' Fortunately, most women, like my wife and my
daughter-in-law, work up to the time, but a lot cannot.
Let me suggest also, as I said to you in the hallway, I
want to kind of set the record straight on Princeton. One of
the reasons why I am perplexed and many of us are perplexed by
your answers regarding the CAP, the organization, is that it
does not fit with your background. As we both said in the
hallway, I read your opening statement again, where you said
that ``a generation earlier I think that somebody from my
background probably would not have felt fully comfortable at a
college like Princeton.'' And I pointed out to you I am about
10 years older than you, that is how I felt. That was what I
was referencing yesterday about my, you know, Irish-Catholic
kid from Claymont.
And the thing that surprises, or at least puzzles, me is
that it was kind of, I thought, it was a pretty widely known
debate that in the Ivies, the one sort of last holdout,
fighting to not admit as many women and fighting not to admit
as many minorities, was Princeton. There was a whole battle
over it, as you heard referenced in terms of the Wall Street
Journal and mailings to alumni.
And I noticed someone in the press. I want to be able to
wear the hat given to me by pointing out that the reason I can
wear this hat proudly today after being on campus as much as I
have at Princeton is today, 28.7 percent of Princeton's
undergraduate population is minority, and today, the class of
2005, 47 percent--47 percent--are women. So that is what that
battle was all about, a lot of us thought. I would be proud if
my daughter were at Princeton Graduate School instead of Penn
now, although I am very proud she is at Penn, but that is what
this debate was about, Judge, and that is why it still confuses
me.
I am going to ask you a straightforward question and I hope
it doesn't offend you. Did, when you listed CAP, was part of
your rationale for listing it in an application you thought
that would appeal to the outfit you were applying to, the
people looking at your resume?
Judge Alito. Well, Senator, as I said, I don't have a
recollection of having anything to do with CAP, so all I can
say is that I put it down on the '85 form and therefore I must
have been a member at around that time, and that's--I can't--
Senator Biden. I am not even suggesting about whether you
were or were not remembering. Was part of the reason--I am
looking for a reason. I am looking to be able to say--because
you don't impress me as someone, especially from your
background, that would want to keep Princeton as--I won't go
back and read the quotes--keep Princeton as, you know, imagine
my father's 50th reunion, having 40 percent women, isn't that
awful. You don't impress me as belonging to that club.
Judge Alito. Well, I wasn't.
Senator Biden. So the only explanation I can think of--and
you are not. You are a very informed guy. I mean, you are
sitting up there in North Jersey as a U.S. Attorney. As I said,
it is in the Wall Street Journal. It is a debate going on. You
are getting letters. The only thing I could figure is you
figured that a relatively conservative Reagan administration
Justice Department would say, hey, maybe that is the kind of
guy I want. I can't understand why else you would put it down.
But if that is not the reason, if you just listed the outfits
you belong to, that still perplexes me, but anyway--
Judge Alito. Well, Senator, I wasn't a member of that club
as you refer to it. By the time I entered Princeton, there were
many minorities in my class. The practice of not including
minorities had ended, and my class was not coeducational when
we were admitted, and as I said yesterday, I had never
previously attended a non-coeducational school--
Senator Biden. You had about 300 women, if I am guessing
right, when you got admitted, roughly. When were you admitted?
Judge Alito. I was admitted in 1968. It was not
coeducational. It went coeducational while I was there--
Senator Biden. In 1971, 1970-71, there were 300 women. Now,
there are 2,100 in that same class.
Anyway, I thank you very much, Judge. I yield the floor.
Chairman Specter. Thank you very much, Senator Biden.
We now have both Senator Durbin and Senator Coburn present.
Senator Durbin, you have asked for 2 minutes as a matter of
personal privilege.
Senator Durbin. Thank you very much, Mr. Chairman, and I
will make it brief.
Chairman Specter. You have 2 minutes.
Senator Durbin. In a courtroom and in a Committee room, it
is not unusual to try to rehabilitate a witness. When hard
questions are asked, people come back with information. Mr.
Gillespie and his team are down there providing information, as
are others. It is perfectly acceptable. We would do the same
thing if the shoe were on the other foot.
Two personal references to me were made after I left the
room, and I apologize for leaving the Committee room. One
related to the fact that I had earlier been in the pro-life
position in my political life, and it is true. I made reference
to this in my opening statement. I have stood for election more
than 12 times in the House and the Senate, general and primary,
stating my position as pro-choice, so the voters of Illinois
know that.
I had asked Judge Alito whether his position had changed
from 1985. That was the nature of my questions to you this
morning. I don't consider that to be a shortcoming if you would
concede it changed, although at this point, you have not made
that concession. Abraham Lincoln was once accused of changing
his position on an issue and he said, I would rather be right
some of the time than wrong all of the time, and so I don't
think changing your mind is necessarily condemnation.
The second point I would like to make specifically is my
reference to settled law. Roe v. Wade is settled law, and I am
sorry that Senator Hatch is not here at the moment, but I would
like to read into the record exactly what was said on September
13, 2005, before this Committee when Senator Specter said,
Judge Roberts--
Chairman Specter. Does this involve Senator Hatch, Senator
Durbin?
Senator Durbin. It does. Senator Hatch raised the question
that I had said--
[Laughter.]
Senator Durbin [continuing]. That this position--
Chairman Specter. Shouldn't we have Senator Hatch here?
Senator Durbin. If you want to wait, I will wait.
Chairman Specter. Yes, I would like to wait until Senator
Hatch arrives. That way, we may be able to conclude this not in
2 minutes, but in less than 2 hours.
I have made inquiries on the Rusher issue over the lunch
hour, and I have some things to say about it, but I am not
going to say them until Senator Kennedy arrives--
[Laughter.]
Chairman Specter. --so I have asked staff to inform Senator
Kennedy that I await his arrival.
In the meantime, if it pleases this august body, we will
proceed with the hearing. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. I do want to tie some
loose ends up and one of them makes reference to something
Senator Kennedy read. Would it be OK if I proceed with that? I
think it would be fine. This has to do with this last matter
that Senator Biden was also discussing and that is the
Princeton alumni group.
Just to make sure that the key facts are understood here,
you believe you joined, Judge Alito, around 1985 because of a
concerned threat to ROTC at Princeton University, is that
correct?
Judge Alito. Well, Senator, I don't recall joining, but I
do remember that that was the issue relating to the
administration that was bothering me for a period of time,
including that period.
Senator Kyl. And just for the record, Mr. Chairman, I would
ask unanimous consent to insert a quotation from the Princeton
packet. I will just quote it here. Prospect editor Denise
DeSouza added that CAP is concerned about the formation of a
third-world center, a campaign to eliminate the Army ROTC
program, and what it perceives as the decline of Princeton
athletics.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. Second, on this matter, and I refer to this as
the very scurrilous material read by Senator Kennedy, I suspect
we would all agree was scurrilous material, had you ever heard
of any of that material that he read a while ago before today?
Judge Alito. No, Senator.
Senator Kyl. I believe you said you vehemently disagreed
with it, is that correct?
Judge Alito. I do. I deplore those things.
Senator Kyl. And would disavow it?
Judge Alito. I disavow it. I would never associate myself
with those things.
Senator Kyl. Did you know that such things had been
published by the PAC when you were a member of it, or when you
joined it?
Judge Alito. Absolutely not. I would never be a member of
an organization that took those positions.
Senator Kyl. OK. And also, Mr. Chairman, unanimous consent
for the record to contain the disclaimer which the editors of
the Prospect include in the magazine. It reads, ``The
appearance of an article in Prospect does not necessarily
represent an endorsement of the author's beliefs by the
Concerned Alumni of Princeton.''
Chairman Specter. Without objection, it, too, will be made
a part of the record.
Senator Kyl. OK. Now let us return to your 15 years as a
judge and how matters might come before you in the U.S. Supreme
Court. I just wanted to also refer to something that I put in
the record yesterday. It is a very difficult thing to look at
4,000 cases and conclude that, when you have ruled on both
sides of issues depending upon different fact situations, as we
have talked about before, that you necessarily favor one side
or the other. One of the areas of concern was in the area of
discrimination. I just want to read one sentence of what I
inserted in the record yesterday regarding employment
discrimination and see if you have any other comment on it.
A 2003 study of employment discrimination claims in Federal
court found that Federal appeals court judges sided with
employment discrimination plaintiffs in only 13 percent of the
cases. Judge Alito's record of four out of 18, or 22 percent,
is actually more favorable to plaintiffs. Do you know that to
be incorrect or do you have any other comment on it?
Judge Alito. I don't know--I'm not familiar with the
statistics. The way the appeals system is set up, the types
of--I think that's what results in the statistics that you
mentioned, the low rate of success for plaintiffs, because
these cases are generally cases in which summary judgment has
been granted for the defendant. If the district court denies
summary judgment for the defendant, then the case will go to
trial and very often is settled, or there's a trial and then
there's no appeal after the trial. So the cases that we get,
most of the cases that we get are cases that have been looked
at by a conscientious district judge and found not to be cases
that should go to trial and I think that's what produces those
statistics.
Senator Kyl. And that's an interesting lesson, I think, for
all of us, to be able to explain why certain cases come to
courts and why they would be more on one side than the other.
It is an important lesson, I think, both for lawyers and non-
lawyers to appreciate that kind of dynamic, because otherwise,
if you just look at raw statistics and don't know the
background, you could come to different conclusions. So I
appreciate that.
In another area, it is apparent to me that you are simply
not going to be able to satisfy some of my colleagues because
you will not absolutely commit to rule the way that they want
to on a couple of key issues, for example, on the issue of
abortion. You have repeatedly confirmed the significance in the
role of precedent, in this case, Roe v. Wade. You also noted
situations in which, as a Third Circuit Court judge, you
adhered to the Roe v. Wade precedent.
But you have declined to announce your constitutional view
of Roe today, despite repeated attempts by some of my
colleagues to get you to do it in these hearings. Implied in
your answer is the point that to do that here would commit you
to a particular result, something you cannot ethically do. Are
there cases regarding abortion that you believe may come before
the U.S. Supreme Court?
Judge Alito. There certainly are cases that may come before
the Supreme Court. There is a case involving abortion before
the Court this term, and they come up with some regularity.
Many of them involve the application of Roe. Most of them
involve the application of Roe or the application of other
precedents that build on Roe. But it is entirely possible that
a case involving Roe itself could come up at some point in the
future.
Senator Kyl. Now, I said in my opening statement that I
would defend your right to decline to say in advance how you
would rule on matters that could come before you, but kind of
along the same lines that you did a moment ago, perhaps you
could tell us the reason for the rule, in other words, to
elaborate on the damage that would be done if judges indicate
in advance how they might rule on cases. What is the reason for
that rule?
Judge Alito. In my mind, the most important reason is that
to do that would undermine the entire judicial decisionmaking
process. We have a process for deciding legal issues and it is
critically important that we stick to that process, and that
means that when an issue comes before us, the briefs are not a
formality. The arguments of the attorneys are not a formality.
We should read those very carefully and we should study the
issue and we should study all the authorities that are cited to
us and carefully consider all of the arguments that are
presented to us, both in the briefs and in the attorneys' oral
presentation, and then go into the conference and discuss the
case among the members of the court, and we shouldn't decide
legal questions without questions that are going to--not just
abstract questions as if we were in a constitutional law
seminar, but cases that are going to have an impact on the real
world. We shouldn't decide those questions even in our own
minds without going through that whole process.
If we announce--if a judge or a judicial nominee announced
before even reading the briefs or getting the case or hearing
the argument what he or she thought about the ultimate legal
issue, all of that would be rendered meaningless and people
would lose all their respect for the judicial system, and with
justification, because that is not the way in which members of
the judiciary are supposed to go about the work of deciding
cases.
Senator Kyl. I have talked about this image we have of Lady
Justice, the blind figure with the scales of justice in her
hand, and try to describe why she has the blindfold across her
eyes. I just marvel at our judicial system, and having
represented clients in court for 20 years myself, how we in
America are willing to literally put our lives sometimes,
certainly our freedom and our fortune, in the hands of a
person, one judge frequently, sometimes a jury, sometimes not,
sometimes more than one judge, but frequently a judge. How
would people possibly have the trust to put everything they
own, or their own freedom, in the hands of a person if we as a
country hadn't established over 200 years of adhering to this
rule of law, this notion that justice is blind, that the facts
of your case and the law will decide whether you win or lose
and nothing else?
It is a remarkable phenomenon, if you stop to think about
it, and not all countries do that, and even countries that have
judicial systems, I don't think one can have near the
confidence in that we do here in the United States. So it is a
critical, critical principle that plays itself out in
courtrooms around this country every day and it is something
that I think we have to fight to preserve as much as we
possibly can, and I appreciate your explanation of that.
Just a couple of final things and I am going to be able to
yield back some of my time. I just can't resist pointing out
one little irony here and it has to do with the precedent that
I spoke of before, Roe v. Wade, that is so important to several
members of this Committee. It was written by a Justice who
himself was, at least in some cases, willing to throw off
precedent. Do you remember who wrote the opinion in Roe v.
Wade?
Judge Alito. It was Justice Blackman.
Senator Kyl. Justice Blackman, and in, one might say, an
infamous 1994 dissent from a denial of cert in the case of
Collins v. Collins, Justice Blackman wrote that he would refuse
to follow all Supreme Court precedent on the death penalty,
which has been ruled constitutional by the Court, of course, by
saying that he would, and I quote, ``no longer tinker with the
machinery of death,'' end of quote. I suspect that is not the
way to deal with precedent. If you have a comment on it, fine,
but again, I just think it ironic that the decision perhaps
most in focus here was authored by a judge who himself was
quite willing to throw off precedent, I would argue in a rather
cavalier way, in a situation in which he didn't like it.
Let me just close by putting something in the record and
making a comment. Mr. Chairman, I ask unanimous consent to
insert the following statement in the record, but I would like
to read it because it is a statement of the Majority Leader of
the Senate, Bill Frist.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. And let me briefly read it. ``As a Princeton
alumnus, I had concerns about CAP, but I have no concerns about
Judge Alito's credibility, integrity, and his commitment to
protecting the equal rights of all Americans. Judge Alito has
condemned discrimination, and his record of more than 15 years
demonstrates his commitment to equal rights for women and
minorities.
``Old documents of a now-defunct organization will not tell
us more than Alito's statements and record already have.
Further, the views that the Democrats attribute to Alito
through CAP were the views expressed by an individual member in
a magazine, who was not speaking for the organization and
certainly not for Judge Alito. This is another transparent
attempt by Democrats to wage an unfair smear campaign against
an exceptionally qualified nominee.''
Mr. Chairman, I read that not to attribute the views to any
member of this committee, but I think it is important that the
reputation of this fine jurist be based upon his actions as a
jurist for over 15 years, as I said in my opening statement--
longer than any other justice of the U.S. Supreme Court, except
for one, 70 years ago, on a circuit court of appeals--with a
record of over 4,000 decisions and an ample opportunity to know
what kind of a person he is, what kind of a judge he has been,
and, I would argue, what kind of a judge that he would make.
I do not believe that his answers to questions have been
inconsistent or unforthcoming. I believe that, as a matter of
fact, Judge, you have been very forthcoming in your answers to
questions, including getting right up to the edge on a lot of
matters that arguably could come before the Court. But you did
not try to dodge or duck those questions at all. In fact, let
me just read for the record two or three statements relating to
your performance here at this hearing, if I could, please.
Well, Senator Biden isn't here, so I won't read what he has
said. But it is on the chart. And I appreciate what he said, by
the way.
Jill Zuckman, who writes for the Chicago Tribune: ``Judge
Alito has gone farther and I think that has given a lot more
substance to these hearings, said Specter--meaning our
distinguished chairman, Arlen Specter.''
And then, Dana Milbank, writing in the Washington Post:
``Unlike John G. Roberts, Jr., who made frequent attempts to
soften his views and dodge many of the questions, Alito took
almost every question.''
I am not going to subscribe to the first part of that last
quotation with respect to Judge Roberts, but I think it is true
that you have taken the questions, you have answered them to
the best of your ability, and you have only stopped short when
not to do so would be to commit to a decision in a case that
you are not ethically permitted to do and that would do
injustice to the rule of law and the parties that might come
before the Court.
So I want to commend you for being so forthcoming, for
answering our questions, and for testifying in a very
thoughtful, and as has been apparent to everybody, without any
notes or materials or referring to any other people here, with
great knowledge about both the matters on which you have worked
and the law generally.
Thank you, Judge.
Judge Alito. Thank you, Senator.
Chairman Specter. Thank you very much, Senator Kyl.
Senator Kohl.
Senator Kohl. Thank you very much, Mr. Chairman.
Judge Alito, after the first day of questions, it seems
very clear that you believe there are certain bedrock
principles in American constitutional law, principles like the
right of one man, one vote in redistricting, the right of
children not to have to go to schools unless they are
integrated schools, the right for people to have privacy in
making decisions about contraception, and other rights.
Even though these are cases where the principles are raised
and their application is debated on the margins or even more
fundamentally, I believe you have said and you are willing to
say that you will not question the underlying principle
involved on these issues. And I commend you for that. We are
assured, and I believe, that you clearly do stand by those
principles.
And yet, when you are asked about Roe v. Wade and the
following case of Casey, cases that say the Government should
not place an undue burden on a woman's right to choose, when we
ask about principles of that sort, you are unwilling to make
the same statement of support.
Now, I understand that there will be cases where plaintiffs
argue on the margins about Roe and Casey, where there are
efforts to narrow or broaden these principles, just as there
are cases that narrow or broaden the principles of one man, one
vote or the issue enunciated in Brown v. Board of Education or
Griswold. But you are willing to stand by those other legal
principles and yet you are not taking the same position with
regard to the principles embodied in Roe and Casey.
Could you explain that, please?
Judge Alito. Senator, I think it's important to draw a
distinction between issues that could realistically come up
before the courts and issues that are very much, that are still
very much in play--which is to say, the subject of litigation
in the courts. And I felt comfortable about commenting on one
person, one vote and, of course, Brown v. Board of Education
because those are not issues that are any longer the subject of
litigation in our country, not the fundamental principles that
are embodied in those decisions. And the Griswold case,
likewise, concerns an issue that is not realistically likely to
come before the courts.
Roe, on the other hand, involves an issue that is involved
in a considerable amount of litigation before the courts, and
so that's where I feel that I must draw the line, because on
issues that could realistically come up, it would be improper
for me to express a view and I would not reach a conclusion
regarding any issue like that before going through the whole
judicial process that I described.
Senator Kohl. I think there is strength to what you say,
but I also believe it is not inaccurate to say that these other
issues on the margins, just as Roe on the margins, are still
coming up and may yet come up before the Court. And I still
feel that while you are prepared to take a position on these
other issues which is almost bottom-line, clearly bottom-line,
you are not prepared to take that same position--which you
could, if you wished; you could take that position if you
wished. And I think what that does suggest is that what you are
saying is that it is possible, if a case comes before you, that
you would take a look at the principles underlying Roe and
Casey and see them in a way that would overturn Roe and Casey.
Now, you may say, well, obviously the answer is yes. But I
just want to get that clarified for the record.
Judge Alito. Well, what I would do if a case like that were
to come before me, and if I'm confirmed, is to follow the two-
step process that I've talked about, which is first to consider
the issue of stare decisis. And there's been a considerable
body of case law now on this issue going back to Roe and, in
particular over the last 20 years, and in the Casey opinion,
that was where the joint opinion began and the joint opinion
ended. And then only if I got beyond that issue would I
consider the underlying issue. And that's what I would do if
the issue were to come up. And I don't believe that it would be
appropriate and it wouldn't even be realistic for me to go
further than that.
Senator Kohl. That is correct. And in your mind, you are
not prepared to say that the principle embodied in Roe v. Wade
and the principle embodied in Casey is clearly established law
that is not subject, to your mind, to review. You are not
prepared--I mean, that is not your position, which I think you
have said. But I think, at least for me, a clarification of
that would be of some importance.
Judge Alito. Well, in light of the current state of
litigation relating to the issue of abortion--and as I said,
there's an abortion case before the Supreme Court this term and
there are undoubtedly abortion cases before the lower Federal
courts; I know there are--I don't believe that it's appropriate
for me to go further than that in relation to that issue.
Senator Kohl. All right.
Judge Alito, the President nominated you for the Supreme
Court because of your record as a person and as a judge. Groups
and individuals, particularly on the right, quickly endorsed
you soon after your nomination because they feel comfortable
with your record as you have established it over several
decades now, where you have come from, and where you are on the
issues that are important to them. We also assume that you
yourself are very proud of your record, as you should be. As a
man of principle and conviction, which we believe you are, you
worked on issues throughout your career as a Justice Department
attorney that you believed in, that you cared about, that
mattered to you. And I am certain you would say that if you
didn't believe in these things, you would not have gone to work
for that particular Justice Department under that particular
administration.
And yet yesterday during the hearing, you seemed to walk
away from a lot of your record. For example, when asked about
an interview where you supported Judge Bork, calling him ``one
of the most outstanding nominees of this century,'' you
answered that you were just supporting the administration's
position, that that wasn't your position. And even then, you
distanced yourself from a number of his views, after having
said that he was one of the most outstanding nominees of this
century. You are a man of conviction; I am sure you are. And
you are not just a mouthpiece for people. You never have been
and you never will be--which is to your credit.
When asked about the strong position you took opposing a
woman's right to choose in your job application, you said that
only reflected how you felt then and did not suggest anything
of what you believe now. What you felt then you felt as a full-
grown man, and you are saying that is not necessarily how you
feel now.
When asked about your membership in a radical organization
at Princeton, a group that you cited with pride on your job
application, you said that you could not remember anything
about the group at all.
When asked about the citation on your job application where
you refer to the importance of traditional values, and what you
meant by traditional values, then you answered, somewhat
incomprehensibly, when you said that you were protecting
children from ``psychological threats that come from elements
in the atmosphere is a traditional value.''
I also asked you about your statement on your job
application that you disagreed with the Warren Court's rulings
on reapportionment, rulings that stand for the basic principle
of one person, one vote. Indeed, you said your disagreement was
so strong that it contributed to your decision to pursue a
legal career. Yesterday you stated that you in fact did not
disagree with the principle of one person, one vote--not then,
not now.
So, Judge, this is the only time that the people of this
country are going to have an opportunity to get a sense of who
you are, what you believe in, what you stand for, who you are
as a person. I think you would say that the American people
have the absolute right to know that, without condition,
without any political considerations, that the most important
part of this hearing is that the American people get a chance,
through our questions and your answers, to know who you really
are. I would like to hope that you would say the job isn't
worth it if we can't do that and do that well. And I believe
you believe that.
So I would like to ask you how you bring into a sense of
harmony some of these things that you have done and said
throughout your career which have brought you to this situation
in which you are now, a person being nominated to serve on the
Supreme Court, and some of the positions which you have taken
in the last few days which, in effect, distance you from some
of the very things that you have done and stood for over a
career that bring you to where you are today.
Judge Alito. Senator, you mentioned a number of things and
I've tried to jot them down so that I could cover at least the
major things that you mentioned.
You mentioned--and I guess I'll take these in reverse order
of chronology--you mentioned the statement in the 1985
statement relating to reapportionment. And I've tried to
explain what I had in mind. The statement in the '85 statement
talked about what I thought about reapportionment when I was in
college. And the reason why I mentioned that--why would I
mention what I thought about constitutional law in college
before I'd even been to law school?
What I was attempting to do was to explain the development
of my thinking about the role of the judiciary and about
constitutional law and, in particular my development of my
strong belief in judicial self-restraint. And the first place
in which I saw a theoretical explanation of that doctrine,
which I found persuasive at the time, was Alexander's Bickel's
book, ``The Supreme Court and the Idea of Progress,'' which
came out during the time when I was in college. I think it was
the first book about constitutional theory, so to speak, that I
had read. And he addressed the issue of one person, one vote,
and that linked up in my mind with the experiences of my father
in working on the reapportionment of the New Jersey
legislature.
And at the time when I was in college, there was an issue
that was very much a live issue at the time as to what one
person, one vote meant. Did it mean that you took this
principle of one person, one vote and applied it with blinding
literalness so that every district was exactly equal in
population, or very close to that, with a population deviation
of under 1 percent, or could other factors that people thought
were legitimate factors to be considered in drawing districts,
such as respecting county lines and municipal lines; was it
permissible to take those into account? That's what I know I
was thinking about reapportionment back in my college days.
I referred in the statement to traditional values, and I
said yesterday at this point in 2006, I can't say for sure
exactly what was on my mind in 1985, when I made reference to
traditional values. But I tried to describe some of the things
that I probably thought were traditional--thought of as
traditional values, and I listed a number of them. One--and a
lot of them had to do with the ability of people to live and
raise a family in the sort of neighborhood where I grew up. And
I gave a little description of that earlier.
So it would include things like being able to live in peace
and safety. I think that's a traditional value, and that was
very much at stake when I was in college in the late '60s and
early '70s and in 1985, because these were eras of high crime.
And a lot of the work that I had done up to 1985 as an
assistant U.S. attorney and working on criminal cases in the
Solicitor General's Office seemed to me to be involved with
this issue of protecting people from the threat of crime.
I think I mentioned the ability to raise children the way
you want, to instill your values, not to have them subject to
certain external threats. And these were--you know, I've tried
to think of why would these have been at issue in the mid-80s.
And they were at issue because of things like some of the
things I was referring to earlier today about children being
able to, and students being able to express their religious
views at school in a nondiscriminatory way, so that religious
speech was not discriminated against. And that was very much at
issue in the '80s. Congress passed the Equal Access Act at
about that time to embody that principle.
So those were some of the things that came to my mind as
traditional values.
The 1985 statement in reference to abortion, I have not
distanced myself from it. I have said that that was a correct
expression of what I thought in 1985 when I wrote it. It was
written in 1985, and that was 20 years ago. And there's been a
lot of case law in the intervening years. There was Thornburgh
and there was Webster and Casey, all of which involved direct
challenges to Roe, and there were other cases applying Roe.
So that's what I had in mind with respect to the matters
that you've covered.
Senator Kohl. Last question. When we met privately, I asked
you what sort of Supreme Court Justice you would make and your
answer was fair when you said if you want to know what sort of
justice I would make, look at the sort of judge that I have
been.
Last week, the Washington Post did exactly that in an
analysis of your record as a Third Circuit judge for the past
15 years. They analyzed 221 cases that you sat on and in which
the court's decision was divided. I recognize that in every
case there is a difference and that it must be decided on its
facts. Nonetheless, this data reveals patterns and tendencies
in your decisions, among other things, as you may have
recollected from the Post article.
It was found that in civil rights cases you sided against
three out of every four people who claimed to have been victims
of discrimination. This was a significantly greater rate than
other judges in a national sample of cases. Of 33 criminal
cases the newspaper analyzed, you sided with the criminal
defendant only three times. This was a very much lower rate
than the national sample. In immigration cases, the Post also
found that you sided with immigrants who were trying to win
asylum or block deportation only in one out of eight cases
analyzed. This was much less than most judges in the national
sample.
Now, the Washington Post was not the only one to perform an
analysis of your record. Noted constitutional law professor
Cass Sunstein, for example, found that, ``When there is a
conflict between institutions and individual rights, Judge
Alito's dissenting opinions argue against individual rights 84
percent of the time.''
So what can we glean from these analyses of Judge Alito and
what might they indicate with respect to your posture on cases
should you become a Justice of the Supreme Court?
Judge Alito. On the discrimination cases, Senator, I think
that the statistic that Senator Kyl just cited speaks directly
to that, a comparison of the number of times in which people
claiming discrimination prevailed in the cases won my vote
compared to the average for circuit judges in general. And I
think that those statistics--that my statistics and the
statistics for circuit judges in general have to be viewed
against the background of--have to be viewed with a recognition
of the way in which these discrimination cases come up through
the court system. Most of them are cases in which the person
claiming the violation lost in the district court, and that
means that a district court judge--and they are not always
right, but most of the time they are right. And they are
conscientious people, and they apply the same law that we do.
They found that these were not meritorious cases. And so if you
start out with a group of cases that have already been found to
be not meritorious, it stands to reason that probably not a
very high percentage of them will ultimately be found to be
meritorious.
On the immigration cases, I take very seriously--and I
don't know what the statistics are in this area, but I can tell
you this, that I take very seriously the scope of review that I
am supposed to perform as an appellate judge. And that is
usually dictated by Congress, and in the area of immigration,
Congress has spoken clearly. And as to factual decisions that
are made by an immigration judge, what Congress has told us is
you are not to disturb those unless no reasonable fact finder
could have reached the conclusion that the immigration judge
did. And I very often see a record where I think it's doubtful.
I say to myself, ``I might have decided this differently if I
were the immigration judge.'' But I wasn't there. I didn't see
the witnesses testify personally. And Congress has told me what
my role is there. My role is not to substitute my judgment for
that of the immigration judge. My job is to say, Could a
reasonable person have reached the conclusion that the
immigration judge did? And if I find that a reasonable person
could have reached that conclusion, then it's my job to deny
the petition for review. And that's what I do in those
instances.
Senator Kohl. I appreciate that. I would just comment again
that your siding with immigrants who were trying to win asylum
or block deportation, you sided only in one out of eight cases
that they analyzed, and this was much less than most judges in
a national sample who are about evenly divided in their
decisions on these issues. This was what their analysis
indicated.
So, you know, for whatever it is worth, you were one out of
eight; in the national sample of judges, it was about 50
percent. I only bring that up for your comment.
I thank you very much, Judge Alito, and, Mr. Chairman, I
thank you.
Chairman Specter. Thank you, Senator Kohl.
We have made some inquiries about the issue which Senator
Kennedy has raised about the Concerned Alumni of Princeton. As
to the letter, I am advised by my chief of staff, Michael
O'Neill, that he first saw a computer letter and that he
believes later a letter was delivered to the Judiciary
Committee headquarters, apparently near Christmas, perhaps on
Christmas Eve, and our custom is to log letters in, and the
letter was never logged in. But I repeat and confirm that I
have never seen this letter until I saw a computer printout of
it about an hour ago.
Mr. O'Neill did talk to me about it over the break between
Christmas and New Year's. I traveled to Iraq. That is the first
time on the Judiciary Committee schedule I could find a few
days to get away, and Mr. O'Neill reminds me that we talked
about it on the phone, and I thought the matter was
unmeritorious, not worthy of the time of the Committee, based
on all that I knew about it. A very brief conversation.
We get so many requests and there are so many items that
are largely staff-driven--not that staff-driven matters aren't
important, but if something is of significance, you customarily
expect a member to tell you about it.
Senator Kennedy and I frequent the gym at the same time and
talk all the time, and he never mentioned it to me, nor did he
take it to the Ranking Member.
I make it a point that Senator Leahy's calls are the first
ones I return, and I have a fair number, but I return all calls
from Members very, very promptly. And had this matter been
presented to me, I would have given it more attention than I
did on that telephone call that I have referred to.
So much for matters which are not quite as relevant as what
I am about to come to. The New York Times published a story
about this on November 26th, and my chief of staff, William
Reynolds, talked to David Kirkpatrick, who said he had gone
through all of the records. And as the story in the public
domain stated, these are the records that the Library of
Congress, the Rusher records, those records and others at the
med. library at Princeton give no indication that Judge Alito
was among the group's major donors. He was not an active leader
of the group, and two of his classmates who were involved and
Mr. Rusher said they did not remember his playing a role.
Well, the obvious thing to do is to call Mr. Rusher, which
Mr. O'Neill did over the lunch hour, and Mr. Rusher said he
would be glad to have us look at his record, and that he had
received a request from Congressional Research Service, but it
was from an unnamed requester, and he declined. But he said had
he received a request from Senator Kennedy or some member of
this Committee, he would have made the records available. So in
Senator Kennedy's absence, I asked a staffer to tell him that
we had moved ahead, but I didn't want to waste any time, and
Mr. O'Neill has contacted Senator Kennedy's staffers, and they
are en route or at the Library of Congress to look at these
records so that we can confirm what the New York Times' David
Kirkpatrick has had to say.
I am just a little puzzled at the issue being raised in
this manner. We talk all the time, and I am just a little
surprised that Senator Kennedy hadn't talked to Senator Leahy
or hadn't talked to me before he made a request for access to
the Rusher records, talks about a subpoena, talks about a
ruling of the Chair, talks about overruling the Chair. Just a
little puzzled. But the substantive matters are being attended
to. And I share Senator Kennedy's concern that we have all the
facts. All the facts. All the facts. And this is a lifetime
appointment. It is a matter of tremendous importance, and I
wouldn't want to find on some occasion that something comes to
light which would bear on this nomination that we could have
found out had we been more vigilant.
Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman. I welcome the
fact that we are going to have the access to those records. The
fact remains I didn't anticipate--I thought that since this was
a major issue on the 1985 application of the nominee for a new
job, this membership with the Federalist Society and the CAP
organization, I thought as a matter of routine that we would
have access to those records. And it was a letter to you, as we
would do, and would followup with the staff, which is the usual
procedure here. I regret I have not been down in the gym since
before Christmas so I have missed you down there.
But the important fact is we are going to get that
information. I think that is what is extremely important. And,
quite frankly, if we had been able to get what I think were
more responsive answers by the nominee during the course of the
exchange today, I don't think it would have even been
necessary. But I don't think you would be able to look through
the transcript on the exchanges that we had with the nominee
and not feel that we have an important responsibility to
followup.
So I am grateful that we will have that chance to followup,
and I look forward to the further considerations and evaluation
of the material and further considerations of the hearing.
Chairman Specter. Enough said.
Senator Leahy, you have a unanimous consent request?
Senator Leahy. Yes, Mr. Chairman. As I had understood, we
will be going back to another round, so if I have
misunderstood, you will correct me. But as I understood Judge
Alito, he saw no connection between his unified Executive
theory and the use of Presidential signing statements. In fact,
the Wall Street Journal reported the President has cited the
unitary Executive 103 times in Presidential signing statements.
So I would like to put that article and some articles from the
Post that are relevant in the record. In fact, in the defense
bill, the McCain torture amendment, he specifically employed a
signing statement mentioning the unitary Executive, and I would
like to make that part of the record.
Chairman Specter. Without objection, those documents will
be made a part of the record.
Senator DeWine, 20 minutes.
Senator DeWine. Thank you, Mr. Chairman.
Judge, yesterday you and I discussed the concerns that I
have about the Supreme Court's willingness to strike down law
passed by this Congress and by State legislators. This lack of
what I consider to be appropriate deference by the Court
endangers our ability to protect the rights of our citizens.
One of the groups that I am most concerned about in that
context is people with disabilities. Congress has passed a
number of laws to assure that people with disabilities have
equal access and equal opportunities. I think it is critically
important that we make sure that those with disabilities have
these opportunities to participate fully in our society in
every way possible.
As you know, Judge, the Americans with Disabilities Act was
a landmark piece of legislation passed by this Congress in our
ongoing efforts to assure that people with disabilities are
treated fairly. The 1999 case of Olmstead v. L.C. was an
important Supreme Court case interpreting this law. As you
know, Olmstead held that Title II of the ADA requires States to
serve individuals with disabilities in community settings
whenever possible, instead of segregating them while providing
them with care.
Olmstead was decided after the case of Helen L. v. DiDario,
a case which, of course, you are familiar with, a Third Circuit
case, that reached essentially the same conclusion. Although
you were not on the Helen L. panel, you along with four other
judges voted to rehear the case en banc.
So let me ask you, Judge, if you could, to discuss with us
your reasoning behind voting to rehear the Helen L. case. I
would like to ask you, did that vote to rehear the case mean
that you thought that the Helen L. case was decided incorrectly
or that you opposed the later holding in Olmstead? Let me also
ask you, now that Olmstead has been decided, do your reasons
for voting to rehear the Helen L. case still apply? And do you
have any concerns with the Supreme Court's holding in Olmstead
that would cause you to question the validity of that
particular decision?
Judge Alito. I certainly don't have any concerns about the
decision in Olmstead. I would have to look at my own file in
the Helen L. case--and I doubt that there is any file in the
case at this point--to try and see if there's anything in there
to indicate specifically why I voted for rehearing in the case.
And perhaps if--but I can say this: that I read the decision
again, and one important part of the opinion in the case
attempts to distinguish an earlier Third Circuit case that
seemed to be somewhat closely related--closely related to the
issue that was at hand. And I noted there were five votes for
rehearing in the case, and that's quite unusual. It's unusual
for there to be that many votes for rehearing.
Most of the time--I would say most of the time when we vote
for rehearing, the reason is because we think that there may be
an inconsistency in our court case law, and that doesn't
necessarily mean that we think that the decision we're voting
to rehear was incorrect. Quite often, we think the decision
that we are voting to reconsider is correct, but that it is
inconsistent with a prior case that needs to be overruled, and
we are very scrupulous about following our own precedents, not
ignoring them. So if we have a precedent out there and it seems
to us to be wrong and the issue comes up in a later case, then
our mechanism is to vote to rehear.
That happens very often, and my guess, based on what I can
tell just from reading the opinion and looking at the votes for
rehearing and the judges who voted for rehearing, is that could
have been what was going on.
Senator DeWine. I appreciate your answer, Judge.
As the Chair of this Committee's Subcommittee on Antitrust,
I have seen that it is often very hard to draw the line between
anticompetitive conduct and, frankly, just good old-fashioned
competition. Let me give you an example that Senator Kohl and I
have done a great deal of work on, and, frankly, Senator Kohl
has really taken a lead on. Many hospitals buy their supplies
through group purchasing organizations, known as GPOs. These
organizations purchase products for a large number of hospitals
at one time, which decreases prices, but also gives them
extraordinary power over which products get used and which ones
don't get used. Often, GPOs reach deals with major suppliers to
buy items in bundles; in other words, buy a number of different
products from those suppliers in order to get discounts on all
the products. It saves money, but it also means that smaller
companies, which many only offer one of these products, have
really a hard time competing with the large discounts being
offered. The result is that smaller companies have difficulty
getting into the market even if their one specific product may
be better or it may even be cheaper.
Judge, you had a case that dealt with bundling like this.
It was the 3M v. LePage case. In that case, 3M, which sells
Scotch tape, was selling it as part of a bundle with other
products. The result was that LePage, which was offering a
cheaper competing tape, was having a hard time getting stores
to sell its tape because if the stores then did, they would
have to give up the chance to save money on all the other 3M
products that they carried. The majority ruled against 3M, but
you dissented. I wonder if you could please explain your
reasoning behind that dissent and explain what type of bundle
discounts you think would violate the antitrust laws.
Judge Alito. Well, let me preface what I'm going to say by
saying that I'm not an antitrust expert and so I plod my way
through these antitrust issues when they come up. But this was
a tough one and it was a monopolization case and it required an
examination of all the factors that were relevant to a
determination of whether 3M was engaging in monopolization.
3M was selling the product, as I recall, it was selling
these products--it was not selling them below its cost. It was
selling them above its cost, but 3M was--because of its scale
or because it was more efficient, was able to produce its
product more cheaply. I remember looking at the authorities
that had discussed this and the writing of leading antitrust
experts on bundling issues and that factor, taken together with
the other factors in the case, persuaded Judge Greenberg and I,
and we were the majority on the case at the panel level, that
there wasn't sufficient evidence of monopolization here. And
then when the case went en banc, the court as a whole came out
the other way.
But my understanding of the state of the scholarship on
this issue right now and on the way economists view the issue
is that I believe that, or many of them who believe that this
is--a situation like this is not--does not involve
monopolization. This is not a way in which a company like that
can engage in a predatory practice over a period of time. But
there is uncertainty, really, about how the monopolization
standard applies to issues of bundling. So I think it's quite
up in the air, and should it come up again, I think it merits
reexamination.
Senator DeWine. Thank you, Judge. Judge, you have heard a
lot of discussion and many of us have said that we don't like
it when judges legislate from the bench. For judges to properly
perform their function, obviously, it is crucial that they
attempt to put their own policy preferences aside in the cases
before them. But it seems to me that this is a lot easier said
than done.
Our Constitution is not a dictionary. It contains a number
of very broad, undefined phrases. Let me give you some
examples. The Fourth Amendment prohibits unreasonable searches
and seizures. The 14th Amendment says that the State shall not
deprive any person of liberty without due process of law. The
Eighth Amendment prohibits cruel and unusual punishments. I am
sure you could supply a lot more examples than I am.
When confronted with such broad phrases, like
``unreasonable'' or ``liberty,'' ``cruel and unusual,'' how do
you know whether you are making policy or merely interpreting
the Constitution itself? What tools will you use as a Supreme
Court Justice to ensure that your personal views do not play a
role in your decisionmaking?
Judge Alito. In all the areas that you mentioned, there is
now a considerable body of case law, and that is a real
limitation on the exercise of judicial power. That is one of
the important reasons for the doctrine of stare decisis. In the
78th Federalist Paper, when Alexander Hamilton was responding
to the people who were worried about this power of judicial
review, who thought that it would give the judiciary too much
power, he specifically cited the fact that members of the
judiciary would be bound up by precedent and this would
restrain them. This would keep them from injecting their own
views into the decisionmaking process.
Under the Fourth Amendment, there is an enormous body of
case law now and there are many types of searches that are--
it's established in case law that a warrant is required. There
are types of searches where it's established now that the
activity can be conducted with reasonable suspicion, a Terry
stop, for example, other types of searches require probable
cause. And there are many specialized types of searches,
administrative searches, roadblocks constructed for certain
purposes, border searches, and so forth.
Under the Due Process Clause of the Fifth Amendment and the
14th Amendment, there is a great body of case law on procedural
due process and most of the due process issues involve
procedural due process, what sort of process is required. There
is a standard for cases involving the substantive component of
that.
Under the Eighth Amendment, since the Supreme Court in
Gregg v. Georgia ruled that the death penalty is permissible
under certain circumstances, there is a very large body and a
complex body of case law within which a judge would work in
deciding cases in that field.
Senator DeWine. Judge, let me turn to an area that I talked
with Judge Roberts about, and that is free speech in the public
square. To me, there is perhaps no right in our Constitution
that is really as important as freedom of speech. The heart of
the First Amendment is the idea that people have a right to
speak their mind but also be heard on matters of public
concern. Traditionally, our citizens have expressed their
opinion on public issues by turning to the public square. They
do it in parks, streets, sidewalks, anywhere that people
gather. It is as old as the country--older than our country.
Lately, however, I believe that we are seeing a disturbing
trend. In many cases, governments have sought to restrict
speech in the public arena, sometimes with success, sometimes
without. Let me give you some examples. In one recent case, a
Wisconsin woman was kicked off a city bus when she tried to
distribute a book containing Bible stories to individuals
sitting next to her. In many towns and cities across the
country, individuals are prohibited from placing political
signs on their own property. They are told what size they can
put out. They are told the times they can put it out, the dates
they can put it out, et cetera. In many public places,
individuals have been forced to hold up signs of protest and
been confined to ``free speech zones,'' far away from the event
that they wish to protest. These individuals are doing nothing
more, many times, than just standing their with their sign.
These sorts of restrictions concern me because they limit
the ability of individuals not only to speak, but also to be
heard in public places, people who want to talk about politics,
religion, or any other matter of public concern. I think we
need to be careful as a society before we limit what people can
say and where they can say it.
Let me ask you, how do you approach challenges to
government restrictions on the ability of individuals to speak
and be heard in public places, and what, Judge, factors do you
consider when deciding which restrictions on speech in the
public square are proper under the First Amendment and which
ones are not?
Judge Alito. I think that freedom of speech and freedom of
the press and all the freedoms set out in the First Amendment
are matters of the utmost importance. Freedom of speech is not
only important for its own said, but it is vital to the
preservation of our form of government, and I think that if
anybody reviews that opinions that I've written in the area of
freedom of expression and other First Amendment--
Senator DeWine. I have looked at some of them, at least--
Judge Alito. --they will see that I strongly support those
rights.
The issue of speech in particular places is a daunting
issue. The Supreme Court has addressed it by developing the
forum doctrine, and they have identified what they call a
public forum, which would be something like a public street,
where people's ability to speak is at the maximum. At the other
extreme, there is a private forum. My chambers would be a
private forum. A Senator's office would be a private forum.
Someone would not have a right to come in from the street and
speak in a place like that. And then there are what they call
limited public forums or dedicated public forums or fora,
places where people can speak freely, but only at particular
times on particular subjects, a place that is dedicated to free
speech but only on a particular subject, for example. That is
the way they analyze it.
Now, some people would say that there are developments in
society that have resulted in the shrinking of public fora that
make it more difficult for people to express themselves. I know
that I'm not up to date on New Jersey case law under the New
Jersey Constitution, but it's my belief that our State has read
this--has a different forum doctrine in things like shopping
centers. Malls that are privately owned are considered to be
public fora under a New Jersey State law. I think some other
States view it that way and that's a competing way of looking
at this problem.
An important principle where I have dealt with this in my
cases, as I can recall, is the issue of freedom of speech in a
limited public forum, and even in a limited public forum, what
government cannot do is engage in viewpoint discrimination. If
the government opens up a particular forum for discussion of a
particular subject, it can't say, but we're not going to
allow--we're only going to allow people who express this
viewpoint and not another viewpoint. Viewpoint discrimination
really goes to the heart of what the First Amendment is
intended to prohibit, so that even in a limited public forum
where people are restricted with respect to what--the subject
that they can talk about, government can't impose a viewpoint
discrimination.
Senator DeWine. It just seems to me, Judge, that we could
talk about this issue all day, and we're not going to,
obviously, but that there is a shrinking public forum and the
opportunities many times are going away. I guess you could make
the other argument that because of modern technology, there are
other opportunities with the Internet, et cetera, that they are
opening up for people to communicate and to make their point
well known. But a lot of the places that people historically
have talked and made their point well known are shrinking. You
talked about the malls, which certainly in most States are
totally off limits to any kind of display of that kind of
debate.
Let me turn to commercial speech, if I could. Under current
law, commercial speech is protected by the First Amendment, but
it has never had the same level of protection as other forms of
speech, such as political speech. The difference in treatment
has puzzled a number of commentators and judges. In reviewing
your cases, I noted that you are certainly familiar with the
issue of commercial speech. In the Pitt News case, for
instance, you struck down a Pennsylvania statute that barred
paid alcohol advertisements in newspapers affiliated with
colleges and universities.
Let me ask you, Judge, based on your experience with this
and other cases, what is your view about the distinction
between commercial speech and noncommercial speech and is there
a common sense difference between these two types of speeches
and have you found that case law supports any distinction? How,
if confirmed, will you approach the so-called commercial speech
claims under the First Amendment?
Judge Alito. Well, there's a debate about how much
protection commercial speech should have. There are those who
argue that the distinction between commercial speech and
noncommercial speech should be eliminated. The Supreme Court
views commercial speech differently, and while it is strict
about any limitation regarding accurate information about
prices, it limits--it permits greater restriction of commercial
speech under current case law than it does with respect to
other types of speech. The theory, as I understand it, is that
commercial speech is more durable. At least, that's part of the
theory. In other words, there's such a great incentive for
people who are selling things to engage in advertising and
other forms of commercial speech that it's less likely to be
driven out than speech on other issues where the financing may
not be as extensive.
In the Pitt News case, what I had to apply was the question
of whether there was sufficient tailoring. There was a
compelling interest for what was done there, which was to
restrict advertising about alcohol in a publication that was
affiliated with an educational institution. But based on the
facts there, it just did not seem to be tailored at all. This
was a newspaper that I think 75 percent of the people who
received it, and it's connected with the University of
Pittsburgh, were people over the drinking age, and maybe even
more to the point, this publication was distributed free on
campus in newspaper boxes next to a number of others that
contained commercial publications and they both advertised
establishments and events in the area of the university and the
others were full of information about alcoholic beverages and
those were free, too.
So while the problem of underage drinking and abusive
drinking on college campuses is a very serious issue, and the
Pennsylvania legislature recognized that and we certainly
didn't question that, I mean, it is an issue of critical
importance, it seemed quite unrealistic to think that this
regulation, which only applied to the Pitt News and not to
these other publications, was tailored sufficiently.
Senator DeWine. I thank you, Judge. That is an interesting
set of facts. I thank you, sir.
Chairman Specter. Thank you, Senator DeWine.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
I want to try one more time. First of all, let me just say
this. Senator Durbin said that Justice Roberts retired the
trophy on performance. If that is true, you have retired it on
equanimity. I really think you are to be congratulated.
This is in this morning's Washington Post, ``Alito Says He
Will Keep an Open Mind.'' But what concerns me, and obviously
this is on Roe, is that despite 38 tests, despite 33 years,
despite the support of a majority of America, you also said
yesterday that precedent is not an inexorable command, and
those are the words that Justice Rehnquist used arguing for the
overturning of Roe.
My question is, did you mean it that way?
Judge Alito. The statement that precedent is not an
inexorable command is a statement that has been in the Supreme
Court case law for a long period of time, and sitting here I
can't remember what the origin of it is, but I would bet that
it's been--it certainly has been used in cases in which the
Court has invoked the doctrine of stare decisis and refused to
go ahead and overrule.
Senator Feinstein. I always believe everything I read in
the Washington Post.
[Laughter.]
Judge Alito. Well, that is an important principle, and I--
not the principle of believing everything in the Washington
Post, but the principle that stare decisis is not an inexorable
command, because then we would be stuck with decisions like
Plessy, and they couldn't be overruled except through a
constitutional amendment.
But when an issue is one that could realistically come up,
the people who would be making the arguments on both sides of
the issue have a right to have a judiciary of people with open
minds, and that means people who haven't announced in advance
what they think about the issue, and more importantly, people
who are not going to reach a conclusion in the--not going to
reach a conclusion until they have gone through the judicial
process. And it's not a facade, it's a--it's not a meaningless
exercise. It's a very important one.
Senator Feinstein. Let me try this. I would like to read a
line of questions that Senator Specter asked now Chief Justice
Roberts, and then I would like to ask this question: how do you
disagree with this? Here is the question.
Specter: Judge Roberts, in your confirmation hearing for
the Circuit Court, your testimony read to this effect, and it
has been widely quoted. ``Roe is the settled law of the land.''
Do you mean settled for you, settled only for your capacity as
a circuit judge or settled beyond that?
Roberts: Well, beyond that. It's settled as a precedent of
the Court, entitled the respect under principles of stare
decisis, and those principles applied in the Casey case explain
when cases should be revisited and when they should not, and it
is settled as a precedent of the Court, yes.
Specter: You went on to say then, ``It's a little more than
settled. It was reaffirmed in the face of a challenge, that it
should be overruled in the Casey decision, so it has added
precedentual value.''
Roberts: I think the initial question for the judge
confronting an issue in this area, you don't go straight to Roe
decision. You being with Casey, which modified the Roe
framework and reaffirmed its central holding.
Specter says: And you went on to say accordingly, ``It's
the settled law of the land,'' using the term settled again.
And then your final statement as to this quotation, ``There is
nothing in my personal views that would prevent me from fully
and faithfully applying the precedent as well as Casey.''
Where do you differ, since Justice Roberts made that
statement in a confirmation hearing. He not only got confirmed,
he is the Chief Justice. It seems to me appropriate for you to
comment on it and say where you might differ with it.
Judge Alito. Well, the statement covers a lot of ground,
and let me try to remember the major points. I certainly agree
with the point--
Senator Feinstein. I can give it to you if you would like?
Would that be helpful?
Judge Alito. Certainly, I would be happy to look at it.
Senator Feinstein. Would someone take it down to him? Show
him the place.
[Pause.]
Judge Alito. Well, Senator, I certainly agree with the
point that the Chief Justice made about separating any personal
views he has from anything that he would do as a member of the
Supreme Court. I emphatically agree with that. That's the
essence of what a judge has to do. I certainly agree that Roe
and Casey and all of the other decisions in this line are
precedents of the Supreme Court, and they are entitled to
respect under the doctrine of stare decisis to the extent that
some of the earlier decisions have been modified, and
obviously, the most recent ones are the relevant provisions of
the Supreme Court.
I have agreed, I think, numerous times during these
hearings that when a decision is reaffirmed, that strengthens
its value as stare decisis. I agree that when the Supreme Court
entertains a challenge to a prior decision and says, ``We're
not getting to re-examination of the merits of the issue, we
think stare decisis counsel against our going to that point,''
then that is a precedent on precedent. That seems to me to be
entirely logical, and we have a long line of precedents now
relating to this issue.
I have said I think--I have said that stare decisis is a
very important legal doctrine, and that there is a general
presumption that decisions of the Court will not be overruled.
There needs to be a special justification for doing it, but it
is not an inexorable command.
Senator Feinstein. But you do not agree that it is well
settled in the Court?
Judge Alito. I think that depends on what one means by the
terms ``well settled.''
Senator Feinstein. I actually agree with you, because
others have said that, and then gone out and voted to overthrow
it, so it is like saying, ``I have no quarrel with that.''
Judge Alito. Let me just say this. As a judge on the court
of appeals or if I'm confirmed as a Justice on the Supreme
Court, it would be wrong for me to say to anybody who might be
bringing any case before my court, ``If you bring your case
before my court, I'm not even going to listen to you. I've made
up my mind on this issue. I'm not going to read your brief. I'm
not going to listen to your argument. I'm not going to discuss
the issue with my colleagues. Go away, I've made up my mind.''
That's the antithesis of what the courts are supposed to
do, and if that's what settled means, then I think that's not
what judges are supposed to do. We are--
Senator Feinstein. Let me interrupt you for a moment if I
may. You were willing to give your view on one man/one vote,
and yet there are four cases pending in the court right now on
one man/one vote, and that is where I have a hard time. The
cases are Lulac v. Perry, Travis County v. Perry, Jackson v.
Perry, and GI Form of Texas v. Perry. That is where I have a
hard time. If you are willing to say that you believe one man/
one vote is well settled, and you agree with it, I have a hard
time understanding how you separate out Roe. I understand why.
If you say one thing, you upset my friends and colleagues on
that side, if you say the other you upset those of us on this
side. But the people are entitled to know.
Judge Alito. I don't think it's appropriate for me to speak
about issues that could realistically come up, and my view
about Brown v. Board of Education, for example, which was one
of the cases that was cited in connection with this issue about
where someone in my position should draw the line, seems to me
to embody a principle that is now not subject to challenge, not
realistically subject to being challenged, not within the
legitimate scope of constitutional debate any longer that there
should be segregated racial--facilities that are segregated on
the basis of race, and that's where I've tried to draw the
line. If an issue involves something that is in litigation,
then I think it's not appropriate for me to go further than to
say that I would be--I would be very respectful of the doctrine
of stare decisis, and I would not reach a decision on the
underlying issue, if one were to get to it, without going
through the whole decisionmaking process.
Senator Feinstein. OK. I will let you off the hook on that
one.
One of the reasons that some of us are so concerned about
the Commerce Clause is because we see major law being
overturned if the Rehnquist Court continues its march. Let me
give you some examples concerning the environment, and these
are cases that will be before you, so I do not expect you to
comment on the case, but to understand them.
The Clean Water Act was passed in 1972, and it included a
provision permitting citizens or citizen groups to bring
lawsuits for violation of the Act. In Public Interest Research
Group of New Jersey v. Magnesium Electron, a citizen's
environmental group sued a chemical manufacturer under the
Clean Water Act for polluting a river used by members of the
group. The trial court found that the defendant committed 150
Clean Water Act violations. On appeal, you are the decisive
vote in a 2-1 decision, overturning the trial court's decision,
even though it was undisputed that the defendant committed the
150 violations of the Clean Water Act.
Your decision, as I understand it, was based upon your
conclusion that the environmental group did not have standing
to sue under the Clean Water Act, because even though members
of the environmental group had stopped using the river due to
the pollution, they did not prove any injury to the
environment. The decision, if broadly applied, would have
gutted the citizen lawsuit provision of the Clean Water Act.
Now, 3 years later in Friends of the Earth v. Laidlaw, the
Supreme Court, in a 7-2 decision, rejected this reasoning, and
held that a citizen only needed to show that he or she was
harmed by the Clean Water Act violation, and did not need to
prove a broader injury to the environment.
So you see where the concern comes with respect to
overthrowing something on a technicality that can have enormous
implications. Do you agree with the Supreme Court's decision in
Friends of the Earth v. Laidlaw?
Judge Alito. Well, it's a precedent of the Court, and I
have respect for it, and as you mentioned--and it's governed by
stare decisis, and as you mentioned, it was decided after the
decision of my court in the Magnesium Electron case. And I
haven't gone back and thought about the question of whether
Laidlaw creates doubt about the soundness of the decision in
Magnesium Electron. If it does, then it does, and if the issue
were to come up again before the Third Circuit, for example,
and I sat on the issue, then I would follow Supreme Court
precedent if I concluded that it was in conflict with the
decision of the prior court of appeals decision.
We have--our jurisdiction, under the Constitution, is
limited to cases and controversies, and the Supreme Court has
said that means you have to have a plaintiff who has suffered
injury in fact. And although there was a disagreement on the
panel about the procedure we should use going forward,
everybody on the panel agreed--Judge Roth and I who were in the
majority, and Judge Lewis who dissented on a procedural point
that I'll get to--that the plaintiffs in that case had not even
alleged personal injury. They alleged that they enjoyed the
Delaware River in a variety of ways. As I recall, they walked
along the canal path, they ate fish from the river, they drank
water from the river, but there was no evidence that the
discharges into a creek some distance upstream from the river
had had any effect whatsoever on the river, and therefore,
there was nothing to support a claim that they were personally
injured by the discharges of this plant.
Now, there would presumably be other people who could take
legal action against the plant for its violations of the law,
and nobody would condone that, but our obligation under Article
III is to confine ourselves to cases within our constitutional
jurisdiction.
Senator Feinstein. Of course you are going to have two
cases challenging the application of the Clean Water Act to
nonnavigable waters under the Commerce Clause, and as you
probably know, we have lost 90 percent of the wetlands in the
United States. This is a very big deal. I mean there are many
of us that would hate to see wetlands be made virtually
impossible because it is very difficult to prove when something
becomes navigable, as opposed to nonnavigable, which is kind of
the question that is before the Court. I only say that because
if this march to restrict Congress continues, you could strike
down the Endangered Species Act, you could strike down the
Clean Water Act, you could strike down the Clean Air Act, and I
think that would be catastrophic for the United States.
If I can, let me just switch to another topic. A year ago
all of us became very concerned and involved and some horrified
with the Terri Schiavo case, and as I recall the case, the
local courts held that her life support could be turned off.
The State Supreme Court held the same thing. And then there was
an effort--and I think a Federal district court held it--to
bring it up to the Supreme Court. What do you believe the role
of the Federal courts should be in the arena of end-of-life
decisions?
Judge Alito. Well, there's a constitutional issue,
certainly, at the bottom of that and there are issues of
jurisdiction. There are statutory issues and Congress specifies
the jurisdiction of the lower courts and so Congress can give
us a role in decisions of this nature or Congress can keep the
Federal courts out of it and leave it to the State courts
where, for the most part, issues in this area have been
adjudicated. But if there is a Federal constitutional right
involved, then someone may have jurisdiction--then, of course,
the Federal courts have traditionally been a forum for the
adjudication of Federal constitutional rights.
The underlying statutory--I'm sorry, the constitutional
issue is the one that the Supreme Court addressed in the Cruzan
case and in the case of Washington v. Glucksburg, and this is
obviously one of the most sensitive issues that comes up in our
legal system and involves something that a lot of people have
had to face and a lot more people are going to have to face
decisions involving the end of life, and with the advances in
medical technology, this is going to be a very tough issue for
an awful lot of people.
In Cruzan, the Court proceeded on--they said, we assume
that there is a constitutional right to refuse medical
treatment that a person doesn't want, and there certainly has
long been a common law right to refuse medical treatment that a
person doesn't want. If somebody gives you medical treatment
and you say, ``I don't want it,'' and they perform an operation
on you or do something like that, that's a battery under the
common law and you can be sued, and the Supreme Court assumed
that that was a fundamental right under due process but said
that there wasn't a violation of the right under the
circumstances in Cruzan, where the State of Missouri had
imposed certain restrictions--regulations that had to be
complied with before a person who was comatose could be taken
off life support.
And then in Washington v. Glucksburg, they addressed the
issue of whether there was a constitutional right to assisted
suicide and they concluded that there was not, that there
were--and they applied the standard to be applied under the Due
Process Clause or its substantive component, whether a right is
firmly rooted in the traditions of our country and implicit in
the concept of ordered liberty, but there were some concurring
opinions that recognized that these were issues that were on
the cutting edge of medical technology, let me put it that way,
or they were issues on which more empirical evidence might
become relevant in the future.
Senator Feinstein. Thank you very much. I notice I just
have 40 seconds left. Will we have another round, Mr. Chairman?
Chairman Specter. Well, that is something that--let us talk
about. I would very much like to finish today. As I said
earlier, that may be an ambitious schedule, but let us talk
about it.
Senator Feinstein. Thank you.
Chairman Specter. Senator Sessions?
Senator Sessions. Thank you, Chairman Specter.
Judge Alito, I want to thank you for your patience and good
spirits and your thoroughness in answering questions. You have
been very forthcoming. I think very few people could disagree
that on case after case that you have been asked about, you
have gone as far as you legitimately should go to express your
understanding of the law and what is important there.
I know your entire record has been examined extensively.
You think about it, the FBI does a background check. They found
out every place you lived and talked to your neighbors and
checked your criminal history. The Department of Justice has a
big inquiry that they do before they submit your nomination to
the President, or the President submits your nomination to the
Senate. The American Bar Association has interviewed 300 of
your colleagues before they made their recommendation that you
are well qualified in a unanimous vote. The Senate has its
questionnaire. Outside groups look at it and create studies and
data. They read everything you have written to find things that
they might be unhappy with. So I think, all in all, you are
coming through this with very little mud upon you, for which I
congratulate you. I think it is something that you can be proud
of. Most of us on this side of the aisle would not like to have
our record scrutinized in the way yours has been.
I know some of us have made mistakes in our statements
already in the hearing, we have to admit. I will admit that I
was one of them. I first said that you were ranked No. 4 in
being the most independent judge out of 900 judges in the
country. As I see the numbers more clearly, you were No. 4 out
of 98 appellate judges examined in that system, but that still
shows that you are an independent, nonideological judge,
willing to--one of the factors they used was whether or not you
always agreed with nominees of your party, and so I think that
speaks well for your record and that is why you have gained
such a broad respect from your colleagues.
I just wanted to briefly mention some of these studies that
go into your background. People have looked at it, incredibly,
to the most minute detail. You were asked earlier about saying
that you only rule one out of eight times for immigrants
seeking asylum, but looking at the asylum cases nationwide,
most of those are the government's position is affirmed. It has
already been decided by a lower court or administrative body.
You are simply reviewing their decision.
But in immigrant asylum cases nationwide, the court of
appeals generally ruled for the asylum-seeker 11 percent of the
time. During your record on the bench, you ruled for asylum-
seekers 18 percent of the time. In your published opinions, the
average court of appeals judge in America ruled for immigrants
8 percent of the time. In your published opinions, you ruled
for them 19 percent of the time.
I think this not only shows that the charges against you
there are not well placed, it shows just how carefully your
record is being examined by people as you move through the
system.
Another example, civil rights. I think your critics have
cherry-picked from some of your 4,800 cases that you have ruled
on. In your opinions on civil rights, your panel was unanimous
90 percent of the time, and when you sat on a panel where both
the other judges were Democratic appointees, your decision was
unanimous 100 percent of the time. So I think that speaks well
for your overall record on civil rights. It certainly would
indicate that you are not hostile to a legitimate civil rights
complaint.
You were asked about one environmental case by Senator
Feinstein, and you ruled on that case based on standing. That
is an important issue in the legal system, don't you agree?
Judge Alito. It is--
Senator Sessions. It is a well recognized principle.
Judge Alito. It is a constitutional principle.
Senator Sessions. It does not have to do with whether you
were for or against the environmental issue in question, but
simply whether the person bringing the suit was a legitimate
person to bring that suit.
Judge Alito. That's right, and it doesn't have anything to
do with Congress's power to regulate the environment under the
Commerce Clause. That's a separate question. Congress--it's
totally separate. One has to do with the scope of congressional
power. The other has to do with who can bring the suit.
Senator Sessions. And with regard to environmental cases,
you have rendered, according to one of these studies, you have
authored six environmental opinions. You sided with the
environmental regulatory body in five of those six opinions.
Indeed, Professor Cass Sunstein, who has served as an advisor
to the Democratic members of this Committee on changing the
ground rules of confirmation, which was really a precursor to
the commencement of a filibuster, Professor Cass Sunstein said
this about you. Quote, ``This is a judge who, if the text is
pro-environment, he is very likely to follow it. This is not
someone who, like some judges, has a kind of pro-business
orientation in his approach to the law.'' I think that is also
a statement that you can take pride in.
I would offer for the record, Mr. Chairman, another article
by Stuart Taylor of the National Journal, Monday, December 12,
in which he, in a very effective way, dismisses much of the
complaints that have been made against Judge Alito--
Chairman Specter. Without objection, that will be made part
of the record.
Senator Sessions. He says the systematic--this is his
quote. ``The systematic slanting, conscious or unconscious, of
this and many other news reports have helped fuel a
disingenuous campaign by liberal groups and Senators to
caricature Alito as a conservative ideologue. In fact, this is
a judge who, while surely too conservative for the taste of
liberal ideologues, is widely admired by liberals, moderates,
and conservatives who know him well as a fair-minded, committed
to apolitical judging and wedded to no ideological agenda other
than restraint in the exercise of judicial power,'' close
quote. I would offer that for the record.
Also, with regard to your challenges on Vanguard, on
matters that have impacted your integrity, I would like to
quote from the American Bar Association's interview
questionnaires that they did on you among those who know you
well. This is what they put in their conclusion. ``Conclusion:
We accept his explanation and do not believe these matters
reflect adversely on him,'' talking about those conflict
allegations. They go on to say, ``To the contrary, consistent
and virtually unanimous comments from those interviewed include
he has utmost integrity, he is a straight-shooter, very honest
and calls them as he sees them.'' These are quotes from
different lawyers and judges. ``His reputation is impeccable.
You could find no one with better integrity. His integrity and
character are of the highest caliber. He is completely
forthright and honest. His integrity is absolutely
unquestionable. He is a man of great integrity.'' And then they
conclude, ``On the basis of our interviews with Judge Alito and
with well over 300 judges and lawyers and members of the legal
community nationwide, all of whom know Judge Alito
professionally, the Standing Committee concluded that Judge
Alito is an individual of excellent integrity.'' So
congratulations on that finding.
Judge Alito, many important decisions of the Supreme Court
in recent years touch on the deepest values of the American
people. They deal with things like Kelo and the property that
they own, matters of faith and morality, decency and
pornography. Do you have a sense of where the American people
are with regard to these issues? Can you indicate to us that
you have any appreciation for the legitimacy of some of those
concerns?
Judge Alito. Well, I do, Senator, and I--
Senator Sessions. Regardless of the technical laws it
involves, but just that fundamental policy.
Judge Alito. I think I have an appreciation of people's
concerns. Certainly with respect to Kelo, which is a recent
decision and I can't comment on how I would rule on any matter
concerning that, and it involves the power to take property for
public use through eminent domain, I certainly understand that
what occurred in that case, which, as I understand it, was the
taking of the homes of people of modest means for the purpose
of building a large commercial facility that would be--that was
thought by the city to be beneficial to the economic welfare of
the city, but this is an enormous blow to the people whose
homes are being taken. People live in homes and they have a
sentimental attachment to them. They have memories that are
attached to the homes. They can remember what happened in
particular rooms. The neighborhood means something to them, the
neighbors mean something to them. The things in the home mean
something to them. And taking their home away and giving them
money in return, even if they get fair market value for the
home, is still an enormous loss for people. So I certainly can
appreciate what they feel in that respect.
Senator Sessions. Well, let's talk about that a little bit.
Because this is a matter of real power and it is a matter that
the Congress gets drawn into sometimes whether we want to be
drawn into it or not. We have discussed Roe v. Wade, people
remain concerned about that. The polling numbers continue to
drift against that decision. We talk about the district court
opinion I believe Senator Brownback raised, a Federal court, on
marriage, on redefining the traditional statutory definition on
marriage contained in States and in State constitutions around
the country. In Kelo, it is pretty clear to me that the Court
just changed the meaning of the words. The Constitution said
you could take property for public use; the Court felt that was
too restrictive, basically, and a majority just changed it to
say you could take property for a public purpose, which could
include some private redevelopment on the area, in their minds.
See, that is not founded in the Constitution. That is an
overreach, in my opinion. On the Pledge of Allegiance case, the
Newdow case, the Ninth Circuit, which includes approximately 20
percent of the people in the United States, ruled that the
Pledge of Allegiance was unconstitutional. The Supreme Court
sort of side-stepped the fundamental issue and said that there
was not standing on behalf of Mr. Newdow, and sent that back to
a lower court. He now got him some plaintiffs that apparently
have standing. He has taken it to the district court in
California, and he has won that case. They have concluded that
the Ninth Circuit law remains in effect so that 20 percent of
the population of the United States, really, are not able, if
you follow that opinion, to render the Pledge of Allegiance.
Yet we have chaplains and In God We Trust in the Senate chamber
and those kind of issues.
So I don't believe that that is founded in the
Constitution. I think the American people do not. And they are
asking some real questions of us. So I guess I won't try to get
you drawn into those.
But I want to do this. The doctrine of judicial review,
Marbury v. Madison. You already indicated Hamilton didn't favor
that. But the Court found it. But it is not expressly stated in
the Constitution, is it?
Judge Alito. No, it's not.
Senator Sessions. And it definitely shifts the balance of
power between the branches because the Court now has the power
to, by a stroke of its pen, five of its nine members, to strike
down any law they say violates the Constitution. That is true,
is it not?
Judge Alito. Well, they decide constitutional questions,
and the doctrine has been established since Marbury v. Madison,
that's right.
Senator Sessions. Well, but there are explicit powers given
to the Congress. And Senator Coburn raised some of those.
Article III, Section 2 has these words: ``In all the other
Cases before mentioned,''--this is the Constitution's grant of
power to the courts--``the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make.''
Now, those words are in the Constitution, are they not?
Judge Alito. Yes, they are.
Senator Sessions. And as you said, if the words are
expected to have some meaning, you would give them some
meaning, at least, would you not?
Judge Alito. I think that's undisputed, that they have a
meaning.
Senator Sessions. So Congress has some power here. We have
not exercised that power, certainly in recent years. In Ex
Parte McCardle, the Supreme Court in 1869 agreed that, though
the judicial power is conferred by the Constitution, it is
conferred under such exceptions as Congress shall make. Then
there is the Impeachment power--the Senator mentioned that. And
then the establishment of lower courts. Article III, Section 1
says, ``The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as
Congress may from time to time establish.'' That indicates that
Congress can establish or disestablish courts, does it not?
Judge Alito. I think it's undisputed that the so-called
inferior courts--and I don't particularly like the term as a
judge of the court of appeals--but the so-called inferior
courts are totally the creation of Congress.
Senator Sessions. Now I would just ask you to comment on
this thought. Chief Justice Roberts, in his hearings--and I
asked him some questions similar to this--indicated that he was
concerned about activism by the Court, overreaching by the
Court, and he felt that this overreaching had the--created a
danger that it could undermine respect for law in our country.
Do you share that view?
Judge Alito. I agree that overreaching by the courts can
undermine respect for law. Our authority is based on the belief
that what we are doing is different from what Congress is
doing. Because otherwise, why would people tolerate our
functioning? Nobody elects us. And we have a system of
Government that is fundamentally democratic. It's based on the
sovereignty of the people. So how do you explain an unelected
branch of Government making decisions?
So all of our authority is based on the idea, which was
expressed in Marbury v. Madison, that the Constitution is law.
It's not conceptually different from statutory law. And our job
is to interpret the Constitution--it has a meaning--and apply
it to the situations that come up.
Senator Sessions. Well, right now there is a strong feeling
that I share that the Court on some very important issues that
people care deeply about is exceeding its authority. They are
calling on me and members of--and those of us in Congress to do
something about it. I get a lot of letters saying withdraw
jurisdiction, why aren't you supporting legislation to do that?
And Congress, I think, has shown restraint.
But I hope that when you become a member of this august
body, the Supreme Court--and I believe you will--that you will
take those concerns with you and share with the members of the
Court that their views on policy issues are of no greater value
than mine, frankly--at least in my opinion they are not--and
that the Congress has been showing some restraint here. But we
really want the Court to be more modest and to draw back from
some of its intervention in policy issues that are causing much
angst around the country.
If you want to comment on that. Otherwise, Mr. Chairman, I
would yield my time.
Judge Alito. Well, Senator, I think your policy views are
much more legitimate than the policy views of the judiciary
because Members of Congress are elected for the purpose of
formulating and implementing public policy. And members of the
judiciary are appointed for the purpose of interpreting and
applying the law.
Senator Sessions. Thank you very much.
Chairman Specter. Thank you, Senator Sessions.
We will now stand in recess until 4:20.
[Recess 4:04 p.m. to 4:20 p.m.]
Chairman Specter. The hearing will resume.
We will turn to Senator Feingold for 20 minutes.
Senator Feingold. Thank you, Mr. Chairman.
Good afternoon, Judge. I hope, if nothing else, you
associate me with breaks in the proceedings, because it seems
to happen every time my questions are up.
Judge, yesterday I asked you about your preparation for
these hearings over the past few months with a variety of
practice sessions. You confirmed that you had had these
sessions and that a great variety of subjects came up in them,
and that is fine. I know this is not an easy process, and I
would certainly expect you to prepare in this way.
What I want to ask now, though, is simply if you can
provide a list of all the people who participated in any of
those practice sessions, and I would request that the folks
here sitting behind you in back of the Department of Justice
help you put that list together this evening and get it to us
tomorrow morning so that we have time to ask about it during
tomorrow's session, if necessary. Can you do that for me,
Judge?
Judge Alito. I certainly have no objection to that.
Senator Feingold. Thank you very much. Now I want to get
into a subject that really requires some attention here and
hasn't had much attention given the important role that it
plays in the job of a Supreme Court Justice, and that is the
issue of capital punishment or the death penalty.
Judge Alito, the idea that defendants are entitled to
effective legal representation is a fundamental part of our
criminal justice system. In fact, of course, it is enshrined in
the Sixth Amendment's guarantee that the accused have ``the
assistance of counsel for his defense.'' Nowhere is this
guarantee obviously more important than in cases where the
defendant's life is on the line. In a death penalty case you
decided in 2004 called Rompilla v. Horn, you rejected the
defendant's argument that his attorneys had failed to do an
adequate investigation to prepare for his sentencing hearing.
As a result, key mitigating evidence about his horrible
childhood was never presented to the sentencing jury, which
ultimately sentenced him to death.
As you know, the Supreme Court reversed your decision,
ruling that the defense attorney's failure to even review
evidence they knew the prosecution was going to introduce at
sentencing violated the Sixth Amendment. This case was one of
several Supreme Court cases in recent years to express
particular concern--particular concern about the adequacy of
indigent representation and the fairness of the capital
sentencing process.
In fact, in several recent decisions, including Rompilla,
the Court has overturned death sentences because defense
attorneys did not do adequate investigations to turn up
potential mitigating evidence and because jury instructions did
not clearly allow jurors to consider any and all possible
mitigating evidence. And Justice O'Connor, whom you have been
nominated to replace, has, of course, often been the author or
the deciding vote in these cases.
Judge, what are your views on these issues? Is the Court's
recent emphasis on the importance of fully developing and
considering mitigating evidence in capital sentencing
proceedings headed in the right direction?
Judge Alito. It is vitally important that all criminal
defendants receive effective representation, and I could not
agree with you more strongly that this is of the utmost
importance in death penalty cases where so much is at stake.
In the Rompilla case that you mentioned, we had to apply
the standard of review that is set out in the habeas corpus
statute as revised by Congress. And where there has been a
determination on the merits by the State courts on an issue
like whether a defendant received effective representation
within the meaning of the Sixth Amendment and where the State
courts have applied the correct legal standard, we are not
allowed to disturb their decision unless what they did was
unreasonable.
Senator Feingold. Well, let me ask you then, because you
are obviously pointing out the fact that you approached the
Rompilla case as an appellate court judge bound by prior
Supreme Court precedent, and yet you found that no
constitutional violation had occurred. And I believe when we
discussed this case in my office, you indicated you still think
your decision was correct.
So the question now is: Would your approach have been any
different as a Supreme Court Justice? What about your decision
on the outcome of the case?
Judge Alito. Well, my decision, I spoke directly to the
issue in the Rompilla case as I saw it when it came before me.
And my evaluation of the performance of the attorneys in that
case was fully set out in the opinion that I wrote. They were--
one of them was a very experienced criminal defense attorney.
He was the head of the public defender's office, and there was
no dispute whatsoever that this was an attorney of competence
and experience and great dedication to the defendant in this
case, and that attorney was assisted by another attorney in the
office, and together they were extremely dedicated to this
case.
Now, a number of judges took a look at this. All of the
Pennsylvania judiciary, with the possible exception of one
justice--I can't remember clearly whether there was one justice
who disagreed--thought that there had been effective
representation provided in this case.
Senator Feingold. This really isn't about the difference
between being on the court of appeals and the Supreme Court.
You apparently, based on what you know, would have ruled the
same way had you been on the Supreme Court.
Judge Alito. Well, my evaluation of the facts of the case
would be the same. Now, if a case came--
Senator Feingold. In other words, that there was not a
violation of the Sixth Amendment.
Judge Alito. Well, I should add, however, that if a case
came up in the future, the Supreme Court's decision in that
case is a precedent that I would have to deal with. And they--
Senator Feingold. Fair enough.
Judge Alito [continuing]. Expressed a view as to how the
standard applies to the facts of the case. It was a 5-4
decision. But it would be a precedent that I would follow.
Senator Feingold. Well, now let's go back to my original
question, which is, Do you think the Supreme Court has been
heading in the right direction in these cases?
Judge Alito. Well, I think that the Supreme Court is
correct in viewing this as a very important part of the
criminal justice system, and in particular, a very important
part of the representation of clients in Eighth Amendment
cases.
Senator Feingold. Isn't the Court doing more than that? The
Court is moving in the direction of giving greater recognition
and ruling on the inadequacy of counsel in this case.
Judge Alito. And I think it's entirely appropriate that
there be a searching review in every case as to whether a
defendant in any criminal case, but in particular, of course,
in a capital case, has received the representation that the
defendant is entitled to under the Sixth Amendment.
Senator Feingold. Do you think your replacing Justice
O'Connor will change the direction of the Court in this regard?
Judge Alito. I would approach these cases under the law
that the Supreme Court has established in this area, with the
recognition that I have attempted to explain of how important I
believe this right is in all cases and in death cases in
particular. When the Supreme Court reviews a case that has come
up through the Federal system, in a habeas proceeding, then the
Supreme Court, just like my court, should apply the standards
that are set out in the habeas corpus statute.
Senator Feingold. Let's go to a different one. Wiggins v.
Smith is a Supreme Court case decided in 2003 also addressing
inadequate mitigation investigation. In that case, Justice
O'Connor, writing for the majority, found trial counsel
ineffective for failing to conduct an adequate investigation
into possible mitigating evidence that could be presented at
sentencing. Had the attorney done adequate investigation, he
would have found abundant evidence of childhood physical and
sexual abuse as well as diminished mental capacity. Do you
think that case was right decided?
Judge Alito. Well, I discussed Wiggins in Rompilla, and I
thought that it was distinguishable. Wiggins, as described, as
I recall it, was a case where the attorney had reason--the
attorney simply didn't conduct an investigation without any
sound strategic reason for not investigating a particular
matter.
Senator Feingold. So you have no sense that that was
wrongly decided?
Judge Alito. I have no sense that that was wrong. I thought
it was different from the Rompilla case.
Senator Feingold. According to two independent studies,
your record in death penalty cases has been more anti-capital
defendant even than most Republican-appointed judges. In fact,
in every disputed capital case that you heard, that is, cases
in which a panel of three judges did not all agree, you would
have ruled against the defendant. How do you explain this
seeming tendency to favor the Government in capital cases?
Judge Alito. I have only sat on a handful of capital cases,
and in some of them I voted to uphold the death penalty, and in
a number of them I voted to strike down the death penalty. In
Carpenter v. Vaughn, I voted to strike down the death penalty.
In the most recent death penalty case I sat on, the Bronshtein
case, I voted to strike down the death penalty because of the
procedure that was followed at the penalty phase in that case.
In the Cruz case, I was part of a panel that vacated a decision
of the district court rejecting the claim of a habeas
petitioner. There have been other cases where I voted to uphold
the death penalty.
Senator Feingold. Justice Stevens recently gave a speech at
the American Bar Association in which he raised a number of
serious concerns about the administration of the death penalty.
He pointed to aspects of capital proceedings that he believes
unfairly tilt the balance in favor of the prosecution both at
the trial and sentencing stages. Specifically, he raised
concerns about the jury selection process, arguing that jurors
are questioned so extensively about the death penalty that they
might assume their role is primarily to decide this sentence
for a presumptively guilty defendant.
He also argued that a representation of indigent defendants
remains an issue that has not been adequately addressed, and he
noted that elected State judges may have a ``subtle bias'' in
favor of death because they have to face re-election.
Now, I know all of us on this Committee have the greatest
respect for State court judges, but we all can understand the
pressures of a re-election campaign. So what are your views on
the potential of these three issues--the jury selection, the
inadequate representation, and an elected judiciary--to skew a
capital prosecution against the defendant? And do you share
these concerns that Justice Stevens outlined?
Judge Alito. I certainly share a concern that there should
be a fair procedure for the selection of jurors. That certainly
is a concern. The issue of the election of judges at the State
level or the appointment of judges at the State level is a
matter for State legislatures to decide, and within my circuit,
we have three States. In New Jersey and in Delaware, the State
judiciary is appointed; in Pennsylvania, the State judiciary is
elected. And I've had the opportunity to view the work of all
three of the Supreme Courts in those States, and I think they
all are of a very high quality. I think the elected judges in
Pennsylvania do a conscientious effort to carry out their
responsibilities, and I think--I have a high regard for the
judiciary in all of those States.
So based on the experience of--on my experience, I think
you can have highly competent and certainly conscientious State
judges who are appointed and the same sort of judges who are
elected. And, of course, we do have habeas corpus and it is an
important--it's important to make sure that constitutional
rights are respected, and the scope of the review that we
conduct under habeas is up to Congress. Congress reformulated
the standards in the AEDPA, in the Antiterrorism and Effective
Death Penalty Act of 1996, limiting our review, and it's our
obligation to conduct the kind of review that Congress has
indicated we should be conducting.
Senator Feingold. Well, Judge, it sounds like you perhaps
have a lesser level of concern about some of these matters than
Justice Stevens. The only thing I would note is that one of the
most striking things about the history of Justices that have
gone to the Court sometimes who are pro-death penalty, an
amazing number have come to the conclusion that this is the one
area where, once they get there, they realize that these
problems are much more severe than they might have thought
before they became Supreme Court Justices, and I, should you be
confirmed, look forward to how you react to these issues after
you've become a Supreme Court Justice, should you do so.
In the past few years, the Supreme Court has limited the
application of the death penalty based on the Eighth
Amendment's ban on cruel and unusual punishment. In Atkins v.
Virginia, the Court ruled that mentally retarded inmates cannot
be executed, and in Roper v. Simmons, it held that individuals
who were minors when they committed capital crimes cannot be
executed as punishment for their actions.
Do you agree with these decisions?
Judge Alito. Those decisions applied the standard that the
Supreme Court formulated sometime earlier in determining
whether the imposition of the death penalty on particular
categories of defendants would violate the Eighth Amendment,
and they looked to evolving standards of decency. And that is a
line of precedent in the Supreme Court, and those are
precedents of the Supreme Court, and they're entitled to the
respect of stare decisis.
Senator Feingold. Can you just tell me what your general
approach to the Eighth Amendment would be in the context of the
death penalty?
Judge Alito. My approach would be to work within the body
of precedent that we have. As I mentioned earlier, the Supreme
Court has devoted a lot of attention to this issue since 1976
when it held that the death penalty is permissible, provided
that adequate procedures are implemented by the States so that
the decision about who receives the death penalty and who does
not is not arbitrary and capricious, so that there is a
rationality to the selection process. And the rules in this
area are quite complex, but I would work within the body of
precedent that is available.
Senator Feingold. Let me go to a topic that we have talked
about before. We had a good discussion of the recusal issue in
the Vanguard case yesterday, and I hadn't intended to ask more
about it. But your discussions with Senator Kennedy and Senator
Hatch today make further questioning a little bit necessary.
Senator Hatch noted that the Committee's questionnaire
asked about financial conflicts of interest during the period
of your initial service as a judge. Now, the reason for wording
the question like that, of course, is that nominees have no way
of knowing when they are up for confirmation whether they will
have the same investments 5, 10, 25 years later. The Committee
obviously can't ask for a comprehensive list of possible future
financial conflicts. So, for example, if you have stock in
Microsoft and you list that as a financial conflict on your
questionnaire, you still have to recuse yourself from a
Microsoft case 15 years later if you still have the stock.
Isn't that right?
Judge Alito. If you're required to recuse yourself if you
have stock in Microsoft, even one share, you must recuse
yourself.
Senator Feingold. You still have to recuse yourself even if
it is 15 years later, right?
Judge Alito. Certainly that's true.
Senator Feingold. So the question in the Senate
questionnaire about financial investments is not time-limited
based on the question being about initial service on the court,
is it?
Judge Alito. Well, I want to be clear on my answer
respecting this as it bears on the Monga case, the Vanguard
case, because that's what we're discussing.
The wording of the Senate questionnaire was not the reason
for the way I settled the case, and I've tried--
Senator Feingold. I just want to know if you have any
question in your mind why the question is phrased that way on
the questionnaire.
Judge Alito. Reading the question, it does seem to me that
``initial period of service'' is a temporal limitation.
Senator Feingold. I want to be sure we don't leave the
impression from these hearings that people don't have an
obligation to recuse themselves from a financial conflict just
because of the passage of time. You have already indicated if
that financial conflict continues, that is an indefinite and
permanent restriction until that financial holding is gone.
Isn't that--
Judge Alito. Absolutely, and that's under the Code of
Judicial Conduct, Canon 3(C)(3) I think it is. If you have a
financial interest, you must recuse yourself, and that's, of
course, a continuing obligation.
Senator Feingold. It is not temporal?
Judge Alito. The obligation to comply with the code of
conduct for Federal judges applies to every Federal judge for
as long as they serve.
Senator Feingold. And that is why I have to say that I am a
bit frustrated that people are trying to obscure what I think
was pretty clear testimony by you yesterday by bringing up this
period of initial service issue. In response to Senator
Kennedy, you made it clear again that your failure to recuse in
the Vanguard case had nothing to do with the suggestion that
your promise was time-limited. But I want to get this on the
record again, and hopefully this will lay any confusion to
rest. This idea that your promise to the Committee was somehow
limited to your initial service on the court, that was not the
reason you failed to recuse yourself from the case in 2002, was
it?
Judge Alito. It was not the reason in 2002. I do think
reading the question, it has a temporal limitation. If that
wasn't the intent, I think people could read it--certainly when
you say ``initial period of service,'' people will read that to
mean--
Senator Feingold. This has nothing to do with why you
didn't recuse yourself.
Judge Alito. It did not have to do with what I did in the
Monga case.
Senator Feingold. And it is not as if you noticed that
Vanguard was a party, remembered your promise to the Committee,
and then made a specific decision not to recuse because the
promise had expired?
Judge Alito. No, it was not that at all.
Senator Feingold. And you finally added Vanguard to your
standing recusal list in December 2003 and it is on your list
today. Isn't that right?
Judge Alito. It is on my list today.
Senator Feingold. Do you plan to recuse yourself from
Vanguard cases that come before the Supreme Court if you are
confirmed for as long as you keep your Vanguard mutual funds?
Judge Alito. Well, if I am confirmed, I will very strictly
comply with the ethical obligations that apply to Supreme Court
Justices. Supreme Court recusals are a bit different from
recusals in the court of appeals, and so the obligation to sit
when you are not recused is one that has to be considered very
seriously by somebody on the Supreme Court or, I would think,
on a State supreme court, for example.
Senator Feingold. Is there any question, if you still have
holdings in Vanguard and a case comes before the Supreme Court
that you should recuse yourself?
Judge Alito. Well, under the Code of Judicial Conduct, I
don't believe that I am required to recuse myself in Vanguard
cases. And I would strictly comply with the ethical obligations
that apply to a Supreme Court Justice.
Senator Feingold. You are not going to make a promise here
that you are not going to rule on Vanguard cases while you have
holdings in Vanguard when you are on the Supreme Court?
Judge Alito. Well, what I want to say about recusals on the
Supreme Court is that the decisionmaking process on the Supreme
Court, or any court with a fixed membership, a fixed number of
jurists who sit on each case, recusal in that situation
creates--affects the decisionmaking process because instead of
having 9 Justices, you have 8, you have the potential for a
tie.
On the court of appeals, that is a much less significant
consideration because we always sit in panels of three, we have
many judges on our court and many cases, so if I don't sit on a
case involving Vanguard, it just means somebody else will sit
on the case involving Vanguard, it will still be decided by a
three-judge panel.
Senator Feingold. I would add on that point that that may
be true, but it is also true that the Supreme Court is the last
stop, and if somebody does not recuse himself, there is really
no remedy, and that is why it is so important that somebody
would recuse himself.
Judge Alito. It is very important for somebody on the
Supreme Court to fulfill strictly the obligation not to sit
when the person should not sit, but it's also important for--
given the matters that I just discussed--for a Justice to sit
if the Justice is not required to recuse.
Senator Feingold. Judge, my time is up.
Mr. Chairman, we do not yet have the communication from
Judge Alito to the clerk on December 10th, 2003 that caused
Vanguard to be added to his standing recusal list, and whether
that was an e-mail or a form that Judge Alito filled out or
something else, we have requested it, so I am just asking for
the assistance of the Chairman in getting that document so we
can complete the record.
Chairman Specter. Senator Feingold, we will take a look at
it and see what the facts are.
Senator Feingold. Thank you.
Chairman Specter. Thank you, Senator Feingold.
Senator Graham?
Senator Graham. Thank you, Mr. Chairman.
Judge Alito, maybe we could continue with the Vanguard
issues just for a moment, and I know you have been asked every
conceivable combination of questions, but Senator Feingold is
very sincere about ethics in Government. He practices what he
preaches, and he has been one of the leaders trying to make
this place operate better. My impression of you is that you are
a good model for judges in terms of ethical conduct based on
what everybody says who knows you. I do not claim to be a close
associate of yours, but the ABA has looked at this and said
that it did not reflect poorly on you. Three hundred lawyers
and judges who know you have said that you are just really sort
of what we want in a judge, and maybe that is not enough, but
that is a pretty good start. I do not think you could get 300
people to say that about me or some of us, but.
The question I have, the criminal prosecutor or lawyer in
me has this question to ask: why would you make a conscious
decision not to recuse yourself? Why would Judge Alito sit down
in the corner of a room and say, ``I think I've got a conflict,
but I'm just going to let it go and hear the case anyway?'' I
am baffled as to why you would make a conscious decision in
this situation not to recuse yourself. Do you have an
explanation?
Judge Alito. There's no reason why I would make such a
conscious decision. I had nothing whatsoever to gain by
participating in this case, and nobody has suggested that I
did. This case involved some thousands of dollars. Vanguard
manages billions of dollars of funds. The idea that the outcome
of this case could have some effect on the mutual funds that I
hold is beyond preposterous, and I don't understand anybody to
have suggested anything like that.
Senator Graham. I have been asking myself that question
quietly, what is in it for this guy? Why would he bring all of
this grief upon himself consciously? Is it to intentionally
break a promise to the Senate so you would go through hell for
3 days? I do not think so. So I am going to accept your word,
like the ABA, and I am going to move on, and I do not know if
anybody else will.
Now, your days at Princeton, the more I know about
Princeton, it is an interesting place.
[Laughter.]
Senator Graham. What is an eating society?
Judge Alito. It's a--the eating clubs are privately owned
facilities where upperclassmen join for the purpose of taking
their meals. The first 2 years, when I was there--the situation
is now a bit more diversified as far as eating is concerned--
but when I was there, and traditionally, the freshmen and
sophomores ate in university dining halls, and then as juniors
and seniors they had to find other places to eat, and these
were private facilities.
Senator Graham. What is a selective eating society?
Judge Alito. It's one where you apply to be a member like a
fraternity, and you go through a process that is somewhat
similar to that, and they select you if they like you.
Senator Graham. Were you a member of a selective eating
society?
Judge Alito. No, I was not.
Senator Graham. Did people not like you, or--
[Laughter.]
Senator Graham [continuing]. You just did not apply?
Judge Alito. I didn't apply.
Senator Graham. Let me tell you who did apply. Donald
Rumsfeld was a member of a selective eating society at
Princeton, and that is an interesting comment I thought.
Woodrow Wilson, Jim Leach, good friend of mine over in the
House. Mitch Daniels, the Governor of Indiana, was a member of
a nonselective eating society. Senator Claiborne Pell was a
member of nonselective eating societies. And other Princeton
alumni who are Members of Congress could not verify their
participation or lack thereof in eating clubs, including
Senator Sarbanes, Bond, Frist and Representative Marshall, and
I promise you, I will get to the bottom of that before this is
all done.
[Laughter.]
Senator Graham. This organization that was mentioned very
prominently earlier in the day, did you ever write an article
for this organization?
Judge Alito. No, I did not.
Senator Graham. Some quotes were shown from people who did
write for this organization that you disavowed. Do you remember
that exchange?
Judge Alito. I disavow them. I deplore them. I--they
represent things that I have always stood against, and I can't
express too strongly.
Senator Graham. If you do not mind, the suspicious nature
that I have is that you may be saying that because you want to
get on the Supreme Court, that you are disavowing this now
because it does not look good. Really, what I would look at to
believe you or not--I am going to be very honest with you--is
how have you lived your life? Are you really a closet bigot?
Judge Alito. I'm not any kind of a bigot. I'm not--
Senator Graham. No, sir, you are not. And you know why I
believe that? Not because you just said it, but that is a good
enough reason because you seem to be a decent, honorable man. I
have reams of quotes from people who have worked with you,
African-American judges--I have lost my quotes, I do not know
where they are--but glowing quotes about who you are, the way
you have lived your life, law clerks, men and women, black and
white, your colleagues who say that ``Sam Alito, whether I
agree with him or not, is a really good man.''
And do you know why I believe you when you say that you
disavow those quotes? Because of the way you have lived your
life and the way you and your wife are raising your children.
Let me tell you this, guilt by association is going to drive
good men and women away from wanting to sit where you are
sitting. And we are going to go through this ourselves as
Congressmen and Senators. People are going to take the fact
that we got a campaign donation from somebody who is found out
to be a little different than we thought they were, and our
political opponents are going to say, ``Aha, I got you.'' And
we are going to say, ``Wait a minute. I didn't know that. I
didn't take the money for that reason.'' You know what? I am
going to believe these Senators and Congressmen for the most
part because that is the way we do our business. We meet people
here every day. We have photos taken with people, and sometimes
you wish you did not have your photo taken. But that does not
mean that you are a bad person because of that association.
Judge Alito, I am sorry that you have had to go through
this. I am sorry that your family has had to sit here and
listen to this.
Let's talk about another time not so long ago, and another
judge, and some of her writings, and see if the Senate is
changing for the better or for the worse. Justice Ginsburg, who
I need to go have a cup of coffee with because I constantly
bring her up, and I do not dislike the lady, I admire her. But
let's put it bluntly, under today's environment from a
conservative's point of view, she would have a very hard time,
because Justice Ginsburg was the General Counsel for the ACLU
from 1973 to 1980, and if you want me to tar somebody by their
association, I can put up some pretty wild cases from my point
of view where she was involved. But you know what? I respect
her because her job as an attorney for the ACLU is to represent
the most unpopular causes. As far as I can tell, during her
time with the ACLU, she was honest, she was ethical, and she
fought for the most unpopular causes, and for that, I respect
her.
But you put some things down on an application about your
view of the law in Roe v. Wade, and it is taking an
unbelievable effort on your part, I think, to convince people
that when I was a lawyer I did this, when I applied for a job I
was doing this, and as a judge I will do this.
Here is what Justice Ginsburg said in an article she wrote
titled ``Some Thoughts on Autonomy and Equality in Relationship
to Roe v. Wade.'' ``The conflict, however, is not simply one
between a fetus's interest and a woman's interest, narrowly
conceived. Nor is the overriding issue State versus private
control of a woman's body for a span of 9 months. Also in the
balance is a woman's autonomous charge of her full life's
course, her ability to stand in relation to man, society and
the State as an independent self-sustaining equal citizen.''
She wrote further, ``As long as the Government paid for
childbirth, the argument proceeded, public funding could not be
denied for abortion, often a safer and always a far less
expensive course short and long term. By paying for childbirth
but not abortion, the Government increased spending and
intruded upon or steered a choice. Roe had ranked as a woman's
fundamental right. The public funding of abortion decisions
appear''--denying a requirement of public funding appear
``incongruous following so soon after the intrepid 1973 ruling.
The Court did not adequately explain why the fundamental choice
principle and trimester approach embraced in Roe did not bar
the sovereign, at least at the previability stage of pregnancy,
from taking sides and being required to provide funding for the
abortions of poor women.''
If that writing does not suggest an allegiance to Roe, if
that writing does not suggest from her point of view as the
author of that article, not only is Roe an important
constitutional right, the Government ought to pay for abortions
in certain circumstances. If she were here today, and a
Democrat President had nominated her, and we take on the role
that our colleagues are playing against you, not only would she
not have gotten 96 votes, I think she would have been for a
very rough experience. And what has changed?
Justice Ginsburg openly expressed a legal theory about Roe
v. Wade. My question to you, if I am arguing a case that would
alter Roe v. Wade, would I have the ability, because of her
prior writings, to ask her to recuse herself based on those
writings alone?
Judge Alito. I don't think you would, Senator. I think it's
established that prior writings of a member of the judiciary do
not require the recusal of that member of the judiciary.
Senator Graham. I think you are absolutely right, Judge.
Let me tell you what she said at the hearing when it was her
time to sit where you are sitting. ``You asked me about my
thinking on equal protection versus individual autonomy. My
answer is that both are implicated. The decision whether or not
to bear a child is central to a woman's life, to her well-being
and dignity. It is a decision that she must make for herself.
When Government controls that decision for her, she is being
treated as less than a fully adult human responsible for her
own choices.''
A sentiment that I think our pro-choice colleagues share, a
sentiment that I disagree with because I think the decision
does affect humanity, and that is the unborn child. I do not
question her religion. I do not question her patriotism. She
gave an answer that was very honest and was very direct, and
pro-life Republicans and pro-life Democrats never thought about
disqualifying her. She did not go through what you went
through. Pro-life Republicans and pro-life Democrats set her
comment aside and judged her based on her whole record and
believed she was worthy to sit on the Supreme Court, and she
got 96 votes.
And what you have said in your writings about the other
side of the issue pales in comparison to what she said before
she came to this body.
I don't know how many votes you are going to get. You are
going to get confirmed, and it is not going to be 96. Judge
Roberts got 78, and I am afraid to say that you are probably
going to get less.
To my colleagues, I know abortion is important. It is
important to me, it is important to you. I know it is an
important central concept in our jurisprudence. But we can't
build a judiciary around that one issue. We can't make judges
pledge allegiance to one case. We can't expect them to do
things that would destroy their independence. You can vote yes,
you vote no. You can use any reason you would like. I just beg
my colleagues, let us not go down a road that the country can't
sustain and the judiciary will not be able to tolerate.
People set aside her writing, set aside her candid
statement and gave her the benefit of the doubt that she would
apply the law when her time came. She replaced Justice White.
We knew that that vote was going to change. I don't think any
Republican had any doubt that if there was a Roe v. Wade issue,
she would vote differently than Justice White, but you never
know.
The one thing I can tell the public about you and John
Roberts is that you are first-round NFL draft picks, but I
don't know what you are going to do ten or 20 years from now
because I think you are men of great integrity, and I may be
very well disappointed in some of your legal reasoning, but I
will never be disappointed in you if you do your job as you see
it fit.
The last thing I am going to read--do you know Cathy
Fleming?
Judge Alito. I do. She was an attorney, a supervisor in the
U.S. Attorney's Office in New Jersey.
Senator Graham. Did you ask her to write a letter on your
behalf?
Judge Alito. I did not, no.
Senator Graham. ``Judge Alito did not ask me to write this
letter. I volunteered.''
[Laughter.]
Senator Graham. I am glad you said that, by the way.
[Laughter.]
Senator Graham. ``I am a lifelong Democrat. I am the
president-elect of the National Women's Bar Association. I
chair the corporate integrity and the white collar crime group
at a national law firm. I do not speak on behalf of either my
law firm or the Women's Bar Association. I speak for myself
only. But by providing my credentials as an outspoken women's
rights advocate and liberal-minded criminal defense attorney, I
hope you will appreciate the significance of my unqualified and
enthusiastic recommendation of Sam Alito for the Supreme Court.
Sam possesses the best qualities for judges. He is thoughtful.
He is brilliant. He is measured. He is serious. And he is
conscious of the awesome responsibility imposed by his
position. I cannot think of a better quality for a Supreme
Court Justice. It is my fervent hope that politics will not
prevent this extraordinary capable candidate from serving as an
Associate Justice on the U.S. Supreme Court.''
I share her hope. Thank you. I yield back my time.
Chairman Specter. Thank you, Senator Graham.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman. Thank you, Judge
Alito.
First, I want to go over some of the things you said
yesterday. Judge Alito, you testified yesterday that you would
keep an open mind, isn't that right?
Judge Alito. I did and I do.
Senator Schumer. Now, are you aware of any nominee in the
history of the Republic who has come before the Senate and
testified he would keep a closed mind?
Judge Alito. I am not aware of that, but I can only speak
for myself. I will keep an open mind on all issues.
Senator Schumer. You also testified yesterday that no one,
not even the President, is above the law, right?
Judge Alito. That's certainly true.
Senator Schumer. Yes. And are you aware of any nominee in
the history of this Republic of whatever political philosophy,
judicial philosophy, or denomination who has come before the
Senate--party denomination--and testified that, actually, there
are a few people who are above the law?
Judge Alito. I am not aware of a nominee like that,
Senator.
Senator Schumer. And you also testified that the Court
should have respect for the Congress, isn't that right?
Judge Alito. Yes.
Senator Schumer. Do you know of any nominees who came
before the Senate and said, ``The heck with you guys. I don't
have any respect for the Congress.''
Judge Alito. Senator, I can only speak for myself, and
those are true expressions of what I think.
Senator Schumer. I know that, but all I want to say is--and
I don't doubt your sincerity in saying them, but this morning's
newspapers were filled with headlines to the effect you would
keep an open mind. I don't find that really to be news, nor do
I find it very helpful in figuring out what kind of Justice you
would be.
My friends on the other side of the aisle have repeatedly
said you have answered over 200 questions. Now it is probably
300. But a response is not an answer, and you have responded to
more than 300 questions, but in all due respect, you haven't
answered enough of them. So again, I think we ought to make
clear that at least to many of us here, we haven't gotten the
answers to questions, yes or no, on some important issues.
With that, I would like to return to Roe, something that we
discussed yesterday at some length. You did say yesterday that
you would keep an open mind. You said, first, you would look at
stare decisis and then you would keep an open mind after going
through stare decisis. But when I asked you questions about
your prior statements to see if you would keep an open mind so
I could make a determination, so the American people could make
a determination, you really didn't answer the question.
Now, we have heard pledges about having an open mind
before. I want to read you one. It is another hearing, someone
who sat in your chair. ``I have no agenda, Senator. I have
tried here as well as in my other endeavors as a judge to
remain impartial, to remain open-minded, and I am open-minded
on this particular issue.'' I will bet you can guess who that
nominee was, Clarence Thomas on the issue of the Constitution
and the right to choose, the very issue I have asked you about,
when he sat in that chair 15 years ago.
So someone pledging an open mind doesn't tell us very much,
because I think there were a lot of people on this Committee
who were surprised--I wasn't there--were surprised by how
Justice Thomas ruled based on his testimony. He didn't tell
them enough.
Now, yesterday, as you know, I asked you whether you
believe today that the Constitution protects the right to an
abortion, given that in 1985 you flatly said that it doesn't,
and you didn't answer that question. Then I asked you whether
the Constitution protects the right to free speech, and you
said yes. Then I asked, how could you answer one and not the
other, and your answer as to why you could discuss one and not
the other was essentially that the words ``free speech'' appear
in the Constitution, but that, and this is your words, ``the
issue of abortion has to do with the interpretation of certain
provisions in the Constitution, the 14th Amendment.''
Now, Judge Alito, the words ``one person/one vote'' are not
in the Constitution. You know that. And yet you said yesterday,
and I think you repeated today to Senator Kohl and maybe
Senator Feinstein, as well, but what you said yesterday was,
quote, ``I think that one person/one vote is very well settled
now in the constitutional law of our country.'' So you were
able to answer on the basis of something as to whether it is
settled, not being in the--the words are not in the
Constitution.
But you were queried by a few of my colleagues and you had
a different explanation. Now, you said you can answer on the
other issues because it is settled law. It is not going to come
before the Court. So let us go over settled law a little bit.
In case after case, you have been telling us--you have been
comfortable telling us that certain cases are settled, and yet
you won't use that word with respect to Roe. You have done it
in a host of other cases and issues. I will read a few. ``So I
think that one person/one vote is very well settled now in the
constitutional law of our history,'' in response to Senator
Kohl. ``The status of independent agencies, I think, is settled
in the case law.'' That was in response to Senator Leahy. ``But
I do think that most of those Commerce Clause cases in the
years proceeding Lopez, the ones that come to mind, I think,
are well-settled precedents,'' in reference to Senator
Feinstein. ``I think the scope of immunity that the attorney
has is now settled by Mitchell v. Forsythe and that's the
law.''
So can you answer the question? Is Roe settled or not? It
is less of a concern which way you answer. I would just like
you to answer the question. You can say, Roe is not settled.
Roe can absolutely be reexamined. I think a lot of people think
that is the answer you want to give, but it is controversial
and you may not want to give it because it is controversial,
even though some of these other issues will come before the
Court. Commerce Clause cases will come before the Court.
Certain types of one man/one vote cases will come before the
Court. Certain types of administrative agencies will come
before the Court.
So why is it only when it comes to Roe you can't tell us
whether it is settled, whether it is not settled, or how it is
settled, and you can pick any formulation you want. Other
judges have commented on Roe being settled. Lindsey Graham
pointed out--he is not here, but Ruth Bader Ginsburg talked
about her view and she still got a lot of votes on the other
side of the aisle. The same might happen to you.
So the question, Judge Alito--
[Laughter.]
Senator Schumer. The question, Judge Alito, is why won't
you talk to us about Roe in terms of whether it is settled or
not when you will about so many other issues, even issues that
would come before the Court?
Judge Alito. The line that I have tried to draw, and I've
tried to be as forthcoming as I can with the Committee. I've
tried to provide as many answers as I could, and obviously, I'm
speaking here extemporaneously in response to questions. The
line that I have tried to draw is between issues that I don't
think realistically will come before the Court, and on those, I
feel more freedom to respond. One person/one vote is an example
of that--
Senator Schumer. What about Commerce--sorry to interrupt,
but we have limited time. What about Commerce Clause? Raich
came to the court a couple of years ago. Raich has roots all
the way back in Wickard v. Filburn. You talked about Commerce
Clause cases being settled.
Judge Alito. Well, it depends on which Commerce Clause
cases you're talking about. Certainly, the initial Commerce
Clause cases that moved away from the pre-New Deal
understanding of the Commerce Clause have been on the books for
a long time. Maybe I have been more forthcoming than I should
have been in some areas, and if that's the case in providing
these extemporaneous answers, I can be faulted for that. But
the line that I have to draw, and I think every nominee,
including Justice Ginsburg, has drawn, is to say that when it
comes to something that realistically could come before the
Court, they can't answer about how they would decide that
question. That would be a disservice to the judicial process.
Senator Schumer. I understand your view. I just think there
are some inconsistencies there. I would argue you ought to err
on the side of being more forthcoming. This is the last chance
we and the American people will have to make a decision before
a lifetime appointment.
But I want to move on to another issue also related to Roe.
Now, you did say that in 1985, you believed that the
Constitution did not protect the right to an abortion, and at
that time, you were a mature legal mind. You were 35. You were
already a Federal prosecutor. You were serving in the Solicitor
General's Office. You had a pretty good understanding of the
Constitution. You had argued cases related to Roe before the
Supreme Court, I think, 12 times by 1985. So you were a well-
seasoned, mature, established legal mind at that time, is that
fair to say?
Judge Alito. Well, Senator, most of what you said is
certainly correct, but I had not argued any case involving Roe
before the Supreme Court.
Senator Schumer. I see. You had argued 12 cases before the
Supreme Court?
Judge Alito. Yes, that's correct.
Senator Schumer. Sorry. Now, let me ask you this. When you
wrote that statement, you did not, as we discussed yesterday,
when you wrote that the Constitution does not protect the right
to an abortion, you had no exceptions. So that would mean, at
least in 1985, your view then, there would be no constitutional
protection for a woman to terminate her pregnancy even if the
termination was needed to preserve her future ability to have
children, right?
Judge Alito. Well, Senator, it was a general statement. It
didn't go into--it didn't--
Senator Schumer. But it had no exceptions. You could make
that--
Judge Alito. It was one sentence and it certainly didn't
represent--there was no attempt--
Senator Schumer. You didn't write any exception for that
situation, correct? It just said, the Constitution does not
protect. It was without exception. And yesterday, you didn't
argue with me when I mentioned that, without exception.
Judge Alito. I don't recall you using the word, ``without
exception.''
Senator Schumer. I think I did.
Judge Alito. Senator, it's one--well, I'm not disputing
that--
Senator Schumer. OK. So if you believe--
Judge Alito. Could I just answer that question?
Senator Schumer. Yes, please.
Judge Alito. It's one sentence and it certainly is not an
attempt to set out a comprehensive view of the subject.
Senator Schumer. No, I understand that, but it was a very
strong statement. It didn't talk about any exceptions at all,
and the way I read that statement, even if a woman was raped by
her father, she would have no constitutional protection to have
an abortion and terminate that pregnancy. If you believe the
Constitution protects no right to an abortion, that would
follow, wouldn't it?
Judge Alito. I think the statement speaks for itself, and
it's one sentence and it's not an effort to set out a
comprehensive--
Senator Schumer. Well, knowing these examples, do you still
refuse to distance yourself in any way from a broad,
unqualified statement without exception that the Constitution
does not protect the right to an abortion, no ands, ifs, or
buts is my words, but--
Judge Alito. What I actually said was that I was proud of
my participation in the Thornburgh case in which the government
made the argument that it made in the Thornburgh case--
Senator Schumer. Right, but you said in the previous
sentence of that statement that you personally held those
views.
Judge Alito. That's correct, but what I was talking about
there was the Thornburgh case and nothing more than the
Thornburgh case.
Senator Schumer. I understand, but you haven't rethought
the position at all, even knowing these extreme cases and the
hardship that it might cause--
Judge Alito. What you've pointed out is exactly why, if the
issue were to come up and one were to get beyond stare decisis,
the whole judicial decisionmaking process would have to be gone
through. You'd have to know--
Senator Schumer. You didn't think that through in 1985?
Judge Alito. I was not involved in--
Senator Schumer. When you wrote the statement. When you
wrote that statement.
Judge Alito. And when I wrote this statement, what I was
saying was that I was proud of what I had done in relation to
the Thornburgh case, which was to write the memo that the
Committee is aware of, which did not argue that Roe should be
overruled. It did not argue that the Government should argue
that Roe should be overruled, but that the decision should be
challenged on other grounds that were quite similar--
Senator Schumer. I understand what you wrote, but you
also--we can bring the statement up here, but I don't want to
go over the thing of yesterday. I would just ask you to think
of all the consequences of a broad statement, even from 1985,
that the Constitution does not protect the right to an
abortion. There is not an exception of health to the mother,
not an exception of rape or incest, not an exception of any of
these others. I didn't see any of those in your job
application.
But I want to conclude on one--
Judge Alito. Senator, it was one--
Senator Schumer. Go ahead, please.
Judge Alito. It was one sentence, and I think what you're
saying highlights the importance of not addressing this until
the judicial process takes place where all of this complexity
would be taken into account.
Senator Schumer. In all due respect, sir, I think it
highlights the importance of and obligation to discuss it,
particularly in light of a strong statement before, but we will
have to differ on that.
I want to go back to the CAP issue in conclusion, because
some of the statements just don't add up and I just want to try
to figure this out a little better. You graduated from
Princeton in 1972. I am just going to state, to save us a
little time, a series of facts here. You filled out the
application to apply for the job in the Reagan administration
in 1985, where you mention membership in that group. Now, is it
fair to say you joined sometime around 1972?
Judge Alito. I think that's very unlikely.
Senator Schumer. Unlikely?
Judge Alito. Very unlikely.
Senator Schumer. When do you--you have no idea when you
joined?
Judge Alito. I don't, but if I had done anything
substantial in relation to this, including renewing membership
or being a member over a lengthy period of time, I feel
confident that I would remember that.
Senator Schumer. OK. So you don't remember renewing
membership, writing out a check at a certain time, getting a
magazine, this Prospect magazine, once a month, once a quarter,
once a year? You have no recollection of any of that?
Judge Alito. I don't.
Senator Schumer. OK. Well, here is what the--and let me
just ask you one other question. I take it in 1985 you were a
member of a whole lot of different groups. I mean, you were a
member of the Bar Association. You might have been your
neighborhood guy, I respect that, maybe a neighborhood
association in New Jersey where you lived, maybe other
Princeton alumni organizations. In your 1990 application, there
are a bunch of other organizations you list as being members
of. So you were a member of a whole lot of groups.
Judge Alito. I was a member of some other groups, not a
whole lot--
Senator Schumer. Yes, OK, a bunch. More than two?
Judge Alito. Some other groups, yes.
Senator Schumer. OK. Here is what I don't understand. I
think here is what a lot of people don't understand. You are a
member of other groups. You hardly have any recollection of
this organization. And yet, somehow in 1985, you put it on your
application. Why did you? Why did you list that particular
organization on your application when you have such vague
recollection of it? Why didn't you put the National Bar
Association--I mean, the American Bar Association or one of the
other groups that you were a member of? It wasn't a long list
where you were trying to list--you somehow plucked this group,
which you now say you have almost no recollection about, and
put it on the application, and this group, as we have heard, is
controversial. Just try to give us some understanding of your
state of mind in 1985, why that group, with its tawdry history
even public then, although you said, in all fairness, you
didn't know about it, but why that group? Why was it plucked
out and put on the application?
Judge Alito. Well, I deplore all of those statements that
were shown on the chart.
Senator Schumer. Understood.
Judge Alito. I would never associate myself with those
statements--
Senator Schumer. What made you pick that group? I
understand. I am not trying to--
Judge Alito. I think you have to look at the question that
I was responding to and the form that I was filling out. I was
applying for a position in the Reagan administration, and my
answers were truthful statements, but what I was trying to
outline were the things that were relevant to obtaining a
political position. I mentioned some very minor political
contributions. I didn't mention contributions to charitable
organizations, and that's not because the contributions to
charitable organizations were unimportant. It's just that--
Senator Schumer. Can you reach back, because it is an
important issue now--it has become one--and try to figure out
your state of mind then and what made you pick this
organization. What did you--I mean, I see why you picked the
Federalist Society. That is obvious. Why did you pick this one?
Judge Alito. Well, Senator, since I don't remember this
organization, I can't answer your question specifically, but I
think that the answer to the question lies in the nature of the
form that I was filling out and the things that I put. I think
the illustration of the political contributions goes right to
the point. Why did I mention small political contributions and
not charitable contributions?
Senator Schumer. Can I ask you--
Judge Alito. It wasn't that the charitable contributions
were less important. It was that they were not as relevant to
obtaining a political position.
Senator Schumer. Why didn't you put it on your application
in 1990? It wasn't there.
Judge Alito. I didn't remember it.
Senator Schumer. But you remembered it from 1972, or
whenever you joined, to 1985, formed in 1972. Why I think you
probably joined earlier is because of what you said about ROTC,
which is a much bigger issue in its early history than its
later history. And you remember that. You remember it up until
1985, and then by 1990, you had forgotten it.
Let me just say, I am glad--this is by way of explanation.
That is why Senator Kennedy made his request. I am glad,
Senator Specter, that you have acceded to it. I think there are
unanswered questions here that we really have an obligation to
answer, and maybe the documents we get will give us some of
those answers. Thank you, Mr. Chairman.
Judge Alito. Senator, I have--
Senator Schumer. Please.
Judge Alito. I have told the Committee everything that I
can about this organization, and the most important thing I
want to tell the Committee is that I have no association with
those comments that were made, even if they were made in
letters to the editor or in articles that simply represented
the views of the authors of those articles. They are not my
views now. They never were my views. They represent things that
I deplore. I have always deplored any form of racial
discrimination or bigotry. I was never opposed to the admission
of women to Princeton. After I had been there for a few months,
I realized the difference between the non-coeducational
atmosphere that was there and the coeducational atmosphere that
I had had throughout my prior schooling. When it came time for
me to join an eating facility, I chose one that was one of the
most coeducational facilities on the campus.
Senator Schumer. I just can't figure out why you put this
group on here.
Chairman Specter. Senator Schumer, your time is up, Senator
Schumer.
Senator Cornyn?
Senator Cornyn. Judge Alito, let me tell you how desperate
your opponents are to defeat your nomination. Late last
Wednesday--or, excuse me, last Thursday, a name of a witness
was listed relative to this whole issue of Concerned Alumni of
Princeton that included the name of a man named Stephen Dujak.
Is that name familiar to you?
Judge Alito. Not other than from seeing the witness list.
Senator Cornyn. Well, by the end of the day on Friday, his
name was gone from the witness list of those witnesses intended
to be called by the other party. As it turned out, it was
revealed that in April of 2003, that he had authored an op-ed
piece for the Los Angeles Times entitled, ``Animals Suffer a
Perpetual Holocaust,'' and in that article, he wrote this. He
said, ``Like the victims of the Holocaust, animals are rounded
up, trucked hundreds of miles to the kill floor, and
slaughtered. Comparisons to the Holocaust are not only
appropriate but inescapable, because whether we wish to admit
it or not, cows, chickens, pigs, and turkeys are capable of
feeling loneliness, fear, pain, joy, and affection as we are.
To those who defend the modern-day Holocaust on animals by
saying that animals are slaughtered for food to give us
sustenance, I ask if the victims of the Holocaust had been
eaten, would that have justified the abuse and murder? Did the
fact that lamp shades, soaps, and other useful products were
made from their bodies excuse the Holocaust? No. Pain is
pain.''
Judge Alito, I read that to point out to you the
desperation of your opponents. This was to be a principal
witness who was going to come in and say why your membership in
Concerned Alumni of Princeton was a terrible thing. But the
fact is that I think they have stumbled by their overreaching
by demonstrating the desperation that they feel and how few
ways they have to criticize your testimony, your career, your
integrity, and who you are as a person based upon the facts and
I think it speaks volumes.
It is clear to me, at least, that part of the reasonings or
the rationale given for a ``no'' vote against you by some on
this Committee and perhaps on the floor of the Senate will be
that you have not been responsive to questions. We have a chart
here that I think is instructive. This is as of 3 p.m. on day
two. We couldn't get any more current than that. But as this
indicates, so far in this hearing, 441 questions have been
asked and 431 have been answered, or 98 percent. Justice
Ginsburg, and we have heard a lot about her and what she would
answer and would not answer and what her philosophy was, her
beliefs, before she was confirmed by the Senate with only three
votes against, she had 384 questions asked and she answered 307
of those for an 80 percent answer rate.
You know, listening to the back and forth about whether you
have been responsive to questions reminds me of a saying that I
heard recently: ``I can answer the question, but I can't
understand it for you.''
In other words, I think you have done, to the best of your
ability and to the limits of your ethical responsibility, tried
to be responsive to the questions here. Obviously, no one can
make that decision but the Senators who will ultimately vote on
that. But certainly the public and the world, people all across
this great country who may be listening to this hearing and
will be judging for themselves both the fairness of the
proceeding and your responsiveness to the questions, I believe
that they will conclude that not only have you been responsive
but that you have been very forthcoming in answering the
questions that have been asked of you, but that, like Justice
Ginsburg and others before her, you believe that it is
important to maintain the independence of the judiciary, that
you are not willing to make the judiciary subservient to the
Senate or the Congress in order to get a vote for confirmation.
And I applaud you for that.
You know, yesterday I made a mistake. I know Senator
Sessions confessed a mistake and, as it turned out, I went over
and talked to Senator Biden because I had quoted him and it
turned out I didn't quite quote him accurately. But I told him
we have corrected the record to make sure it reflected his
words, because it is important to me to make sure that we are
accurate and we are clear.
But yesterday I made a mistake and referred to you as Judge
Scalito. And I was embarrassed by that, and I asked your--
begged your pardon for that. For those that may not be in on
the joke, the idea is, the argument by some is somehow you are
a clone of Judge Scalia. Well, I have found for myself
everything we have heard, everything I have come to learn about
you is that you are a clone of no one, that you are an
individual who is particularly gifted and talented and
experienced and someone who has been, notwithstanding the abuse
that you suffer during the confirmation process, willing to
offer yourself for public service in a very important role, and
that is as a member of the United States Supreme Court.
But yesterday my colleague from New York put up some
quotes. Now, it was late in the day and I think most of the
press had gone--and maybe that is a good thing. People had
gotten tired, but you had to still sit here and listen to the
questions and respond to those. But he put up a quote, which
was relatively innocuous on its face, and it asked about things
like do you believe that continuity in the law is important.
And you said yes and it seems unarguable to me. But then he
said, well, that was a quote from Clarence Thomas. And I
suppose that was going to attribute to you all of the baggage
that those on the left feel that Justice Thomas carries and all
of the views that he has espoused and all of his performance on
the bench.
Later, he asked whether you agreed with another quote, and
here again it was a sort of black-letter law, good-government
quote. And you agreed that, yes, you agreed with that quote.
And he said, Ah-ha, Judge Bork said that. Meaning somehow that
you were carrying whatever baggage people on the left feel that
Judge Bork carries and you somehow embrace or subscribe to
everything he believes.
I want to give you an opportunity, Judge Alito, to tell us
whether you feel like you are a clone of Judge Scalia, Judge
Thomas, Judge Bork, or whether you believe that you are your
own man, you come to your own conclusions based on careful
study and your experience in the law. Would you comment on that
for me, please?
Judge Alito. Yes, Senator. I am who I am and I'm my own
person. And I'm not like any other Justice on the Supreme Court
now or anybody else who served on the Supreme Court in the
past. I don't think any jurist is a duplicate of any other
jurist. I think that the Committee and anybody who's interested
in the sort of judge I am can get a very clear picture of that
by looking at my record on the court of appeals. And I've been
on the court of appeals for 15 years and have sat on over 4,000
cases. And most of the cases that come to the court of appeals
never go any further. We're the last stop in 99 percent of the
cases, probably higher than that. And we know that when we're
deciding those cases.
And I think if anybody reads the opinions that I've written
and the opinions that I've joined, they can see exactly the
sort of jurist that I am. They will find some opinions I'm sure
that they will disagree with. But if they look at the whole set
of opinions that I've written or joined, they can get a very
clear picture of me. I'm not like anybody else. I don't claim
to have the abilities of some of the distinguished members of
the Supreme Court now or in the past. I have my--whatever
abilities that I have. But they are my own.
Senator Cornyn. Let me tell you what Cass Sunstein has said
about you. You may be familiar with the op-ed piece that was
written in the Akron Beacon Journal on November 3, 2005. This
is--of course, you know Professor Sunstein from the University
of Chicago, a brilliant and liberal legal scholar. But he
concludes in this op-ed--and this is how he describes you based
upon his review of your life's work as a judge.
He said, ``Alito sits on a liberal court''--and this is an
analysis of your dissents. ``Alito sits on a liberal court, so
his dissents can be from relatively liberal rulings. None of
Alito's opinions is reckless or irresponsible or especially
far-reaching. His disagreement is unfailingly respectful. His
dissents are lawyerly rather than bombastic. He does not berate
his colleagues. Alito does not place political ideology at the
forefront. He doesn't claim an ambitious or controversial
theory of interpretation. He avoids abstraction. He's not
endorsed the view associated with Justices Antonin Scalia and
Clarence Thomas that the Constitution should be interpreted to
fit with the original understanding of those who ratified it.
Several of his opinions insist on careful attention to
governing legal text, but that approach is perfectly
legitimate, to say the least.''
Judge Alito, I think it is important for people listening
to understand that you are indeed your own man and that you do
the very best job that you can with the skills and the talents
that God has given you, and that you are willing to serve, and
we ought to applaud you for that. And it is really, to me,
demeaning to suggest some sort of guilt by association or that
you must be a clone of some other judge or someone who outside
groups hold up to disrespect and ridicule.
So I hope that, as I say, those listening, both in the
Senate and outside, will make up their mind about you based
upon the evidence that we have heard and that is available and
not based on those sort of specious comparisons.
Now, let me ask--you know, believing as I do that you have
been responsive, and expecting as I do that those who vote
against you will claim that you have been nonresponsive
notwithstanding the chart I showed you and your willingness to
respond to the questions, you know, Senator Schumer--who is an
enormously talented and very bright lawyer in his own right--
was pressing you on whether Roe v. Wade is settled. And, I've
really tried to analyze for myself, when is it that judges and
nominees are willing to go out on a limb, so to speak, and say,
yes, that's settled law or to talk more expansively about an
issue; and when is it that they feel less comfortable, less
free, more constrained by their ethical obligations or their
desire to preserve the independence of the judiciary?
And what I have concluded--and I would like to get your
reaction to this--is the more settled, to use the word Senator
Schumer has, the more accepted in the society, in our culture,
the more free nominees feel to talk about it; but the more a
nominee feels like this is an issue that not only is going to
come back, it is going to come back soon--as a matter of fact,
it may be on the Court's docket now--the less free, the more
bound by your ethical obligations you feel, the more you feel
it is important to preserve your independence as a judge.
And we have mentioned a couple of them--Brown v. Board of
Education, which expresses a commitment to equal justice under
the law that all Americans embrace, virtually speaking. You
have felt free to express a view on that case, have you not,
sir?
Judge Alito. I have. The line I've tried to draw is whether
something realistically could come up in litigation before the
court of appeals or before the Supreme Court. And I--
Senator Cornyn. Does that mean that you don't expect Brown
v. Board of Education to be attacked, or someone to come before
the Court and ask that it be overruled?
Judge Alito. I don't. There's no realistic possibility of
that, so I felt freer to talk about something like that.
Senator Cornyn. But you do believe, and I think with good
cause, that there will be continuous attempts to address the
abortion issue because of its divisive nature and because
Americans are so divided on that issue, or at least some aspect
of the issue. To what extent, for example, can the Congress
pass laws which ban the barbaric practice of partial birth
abortion, to what extent can Congress or the States pass laws
that provide for minors to seek--requiring them to seek
parental--or provide their parents notice, with an appropriate
judicial bypass for those who are abused or neglected or
abandoned by their parents? That is an issue that is at the
forefront of America's consciousness and really, I think, sort
of the subtext under which a lot of the wars over judicial
nominations are fought. Would you agree with that, more or
less?
Judge Alito. It's an issue that is in litigation now, and I
think you can look at the course of litigation over the past 20
years and you can see a number of cases--and of course this has
been highlighted--in which the Supreme Court has been asked to
overrule Roe and it has repeatedly refused to do that. But
there's nothing--there's no comparable pattern, for example,
with respect to Brown v. Board of Education or one person, one
vote.
Senator Cornyn. Well, in the closing two and a half minutes
that I have, I mentioned the Cass Sunstein op-ed, which, from
my reading, even though I am sure you and Professor Sunstein
don't see eye-to-eye on all legal issues, he seems to be highly
complimentary of you, is the way I interpreted those two
paragraphs I read out of the op-ed piece.
Now, a national newspaper, the Washington Post, on January
1st--that is the Washington Post, not National Review--did an
analysis of your voting record on the Third Circuit. They found
that in virtually every type of case, whether labor,
employment--your record was no different than the average
Republican-appointed judge. And to me, that is sort of the--
said another way, that means that you are within the
conservative mainstream in terms of your judicial philosophy.
Now, I know that you and other legal scholars have some
trouble with this approach by political scientists to try to
survey your opinions and categorize them and say, well, this is
who you are, because you don't decide cases that way, do you?
You decide individual cases based upon the legal arguments, the
merits, and the facts. Isn't that correct, sir?
Judge Alito. That's right, and it would be a bad thing if
judges started keeping these scorecards and said, oh, I've
ruled a certain number of times in favor of one side; when the
next case comes up, I'd better rule on the other side. That's
exactly what we don't want judges to do.
Senator Cornyn. You anticipated my next question, and that
would be if somehow it disqualifies you because of how
political scientists have somehow ranked your sympathy with
certain types of cases, how often you have ruled in favor of
one type of litigant and another--as opposed to an individual
case-by-case decisionmaking process contemplated by the
Constitution--I doubt it will be long before prospective
nominees to the Federal judiciary will be keeping that kind of
chart. And when litigants come into court, they are going to be
tempted to look at that and say, well, I've ruled for too many
plaintiffs, I'd better rule for a defendant this time. Or, no,
I've shown too much sympathy for civil rights plaintiffs, I'd
better rule for the government this time. Which would totally
skew your responsibility as a Federal judge, in my view.
Judge Alito, my time has run out. Thank you for your
response to my questions.
Judge Alito. Thank you, Senator.
Chairman Specter. Thank you, Senator Cornyn.
We will take now another break for 15 minutes.
I have had requests from two Senators on the Democratic
side for a third round. We have three more Senators to question
on the 20-minute round--
Senator Leahy. We have several more than the two.
Chairman Specter. Well, Senator Leahy, that is what I would
like to ascertain so that we can figure out the schedule for
the balance of the evening. We have 1 hour more for three
Senators at 20 minutes; I want to figure out what we are going
to do the rest of the evening. I want to figure out when we are
going to bring on the outside witnesses who are available
tomorrow. So if there are other requests, I would like to have
them.
But now we will stand in recess until 5:55.
[Recess 5:40 p.m. to 5:55 p.m.]
Chairman Specter. We will proceed now to the last three
Senators who have not had a second round of 20 minutes--Senator
Durbin, Senator Brownback and Senator Coburn.
As I had mentioned before, I have had requests from two
Senators for a third round. Senator Leahy advises that there
are others and I would like the specifications. Senator Biden
is prepared to proceed--has requested 20 minutes and is
prepared to proceed. Senator Feinstein has requested 10 minutes
and she has a doctor's appointment, so she won't be able to be
here this evening, and we will accommodate her on that.
But I would like to know who else wants time so we can plan
what we are going to do for the balance of the evening and
hereafter. I have had requests on my side of the aisle as to
whether we are having a Friday session and I have had a request
as to whether we are having a Saturday session. And I told both
of those requestors to stand by. And I do piecework, so I am
here for the duration.
Senator Leahy.
Senator Leahy. Mr. Chairman, I have been told that each one
of the people on this side want another round. I know I want to
look at the transcript this evening and I will have a few more
questions. Obviously, you can do what you want. Judge Alito has
shown that he has the stamina of Hercules. I am not sure that
all the rest of us do. Senator Coats is hanging in there, but
he is able to bail out now and then.
I would suggest you finish with the Senators who are here
tonight. That would get us out of here around seven or a little
later; come back in the morning. This is very similar to what
we did with Chief Justice Roberts. Come back in the morning,
and I have a feeling that whatever rounds it takes, we would
probably wrap it up in relatively expeditious order.
But then we wouldn't be looking like we are trying to ram
this through. It is a lifetime appointment, after all. We get
it done. I think most of the outside witnesses have been told
that they were going to testify on Friday, anyway, in all
likelihood. That is my suggestion.
Chairman Specter. Well, that is not true. There are people
who can't be here on Friday among the outside witnesses who
were looking at Thursday.
Senator Leahy. Well, who knows? We will probably be wrapped
up in time so that we can leave here sometime Thursday.
Chairman Specter. Well, Senator Leahy--
Senator Leahy. It is up to you.
Chairman Specter [continuing]. The only way we will know
what is going to happen--I want to know who wants more time so
I can see what is going to go on tomorrow, if we are going to
go beyond Senator Feinstein tomorrow. We had this exact same
situation with Chief Justice Roberts and we worked on into
Wednesday evening and then we got an understanding as to what
we were going to do on Thursday.
Senator Leahy. Well, we are into Wednesday evening now
already, so I mean we have done--
Chairman Specter. Well, why don't we proceed with our few
witnesses so as not to spend any more time, and if I could have
the advice from you--
Senator Leahy. Sure.
Chairman Specter.--Senator Leahy, and from Senator Kennedy.
Senator Durbin has 20 minutes. He probably has more time than
he needs.
Senator Leahy. I have yet to find a situation in this
Committee, Mr. Chairman, when you and I haven't been able to
work things out because you have always been eminently fair.
Chairman Specter. OK. Well, to put all the cards on the
table, the only compelling force, if there such a thing as a
compelling force for Senators, is to figure out how to avoid
working this evening by telling me what you want to do
tomorrow. That is a fairly simple formula.
Senator Leahy. Who was the Leader, Mr. Chairman, who once
said moving the Senate around was like transporting bull frogs
in a wheel barrow?
Chairman Specter. Senator Baker, who is author of the
``herding cats.''
Senator Durbin, you are recognized for 20 minutes.
Senator Durbin. Thank you very much. And, Judge Alito, if I
am not mistaken, this is how we started the day. I think we are
now into about eight-and-a-half hours, which means we are both
on overtime by any measurable workplace standard in America.
Thank you for your endurance, and to your family as well. I
know it is a stressful and tough situation.
Let me say at the outset I asked you a question earlier
today about settled law and John Roberts's statement before the
Committee. I have spoken to one of your corner men over here,
Ed Gillespie, and he and I have a difference of opinion about
what it says in the record. I commend to my colleagues the
record itself, September 13, 2005, page 145, and I stand by my
earlier statement. Enough said about that.
I want to ask you about two substantive issues. We are not
going to go to Princeton or any other place. The unitary
Executive: the reason it is important is that there are some
people even on the Supreme Court who believe the unitary
Executive theory--and I don't know if it is always associated
with the Federalist Society, but sometimes associated with the
Federalist Society and their members--but the unitary Executive
theory gives a President extraordinary power. And under that
theory, some argue that a President, particularly in a wartime
situation, can ignore and violate laws as Commander in Chief--
critically important and timely as we debate eavesdropping and
the like.
You have made it clear that when you spoke to the
Federalist Society in 2000, you were not talking about scope of
the President's power, but you were talking instead as to
whether or not he would have control over the executive branch.
I hope I am characterizing your statement correctly.
Judge Alito. That is exactly correct, and I think in the
speech I said there is a debate about the scope of what is
meant by the Executive power, but there isn't any debate that
the President has the power to take care that the laws are
faithfully executed, and that was the scope of the power that I
was discussing.
Senator Durbin. So my question to you is this: What about
those who do argue the unitary Executive scope theory? Do you
agree with their analysis, do you disagree? Would you be
joining Justice Thomas, in particular, in his dissent in
Hamdi--in arguing that in this situation a President has more
power than the law expressly gives him?
Judge Alito. I don't think that the unitary Executive has
anything to do with that. Let me just say that at the outset. I
think that--and if other people use that term to mean the scope
of Executive power, that certainly isn't the way that I
understand--
Senator Durbin. That is not your point of view?
Judge Alito. That is not my point of view.
Senator Durbin. You don't accept that point of view?
Judge Alito. No. I think--
Senator Durbin. If an argument is made that that is how
they are going to expand the power of the President, as you
testify today, that is not your position or your feeling? Say
it in your own words.
Judge Alito. It is not my--the unitary--when I talk about
the unitary Executive, I am talking about the President's
control over the Executive branch, no matter how big or how
small, no matter how much power it has or how little power it
has.
To me, the issue of the scope of Executive power is an
entirely different question and it goes to what can you read
into simply the term ``Executive.'' That is part of it and, of
course, there are some other powers that are given to the
President in Article II, the commander in chief power, for
example. And there can be a debate, of course, about the scope
of that power, but that doesn't have to do with the unitary
Executive.
Senator Durbin. So when Hamdi draws that line and Justice
O'Connor makes that statement about no blank check for a
President in times of war when it comes to the rights of
American citizens, and there is a dissent from Justice Thomas,
who argues unitary Executive, scope of powers, more power to
the President, you are coming down on the majority side and not
on the Thomas side of that argument. Is that fair to say?
Judge Alito. Well, I am not coming down--I don't recall
that Justice Thomas uses the term ``unitary Executive'' in his
dissent. It doesn't stick out in my mind that he did. If he
did, he is using it there in a sense that is different from the
sense in which I was using the term.
Senator Durbin. Fair enough. Let me move to another area. I
hate to return to that infamous 1985 memo, but there is one
element of it we have really not asked you about, and that is
your reference to the Establishment Clause. So instead of going
into that memo, let me just try to explore with you for a
moment your feelings about religion in our diverse society and
under the Constitution. You have heard some questions from the
other side about it from Senator Brownback, Senator Cornyn and
others, and I would like to try to get into this a little bit.
There seems to be a debate within the Court between two
standards for judging conduct as to whether it is
constitutional in relation to freedom of exercise of religion,
as well as establishment. And the two theories, if I can
describe them quickly, are the Lemon theory which has three
tests that the Burger Court came out with in 1971 and the new
coercion theory.
Are you familiar with both of those theories?
Judge Alito. I am, and there is actually a third theory,
the endorsement test.
Senator Durbin. Where do you come down? Do you subscribe to
any one of those as an accurate analysis of what the Founding
Fathers meant under the Establishment Clause?
Judge Alito. I don't think the Court has settled on any
single theory that it applies in every case. There are cases in
which it finds the Lemon theory, the Lemon test, which now has
two parts, whether the statute has--whether whatever is at
issue has a secular purpose and whether the primary effect is
to advance or inhibit religion. There are instances in which it
applies that. It tends to apply that in cases involving
funding.
There is the endorsement test, and it applies that in
certain cases. Typically, it applies those in cases involving
things like the displaying of symbols that may have religious--
that have religious significance. So it itself has not found a
single test that it applies in all of these cases.
Senator Durbin. Well, where are you? If the Court is
divided, and it appears it is, where do you come down? I mean,
do you--please tell me.
Judge Alito. Well, I don't have a--I do not myself have a
grand, unified theory of the Establishment Clause. As a lower
court judge, of course, my job has been to apply those
precedents, and this is an area in which I think the Court has
been--you can just see by the number of cases that it has
decided it has been attempting to find the best way of
expressing its view of what the Establishment Clause requires.
I certainly agree that it embodies a very important
principle and one that has been instrumental in allowing us to
live together successfully as probably the most religiously
diverse country in the world, and maybe in the history of the
world. And it's a very important principle, but I myself do not
have a grand, unified theory of this.
Senator Durbin. Let me ask you a few starting points. The
question was asked of John Roberts about his personal religious
and moral belief. And I would ask you in the most open-ended
fashion. We all come to our roles in life with life experience
and with values. When you are calculating and making a
decision, if you were on the Supreme Court, tell me what role
your personal religious or moral beliefs will play in that
decision process.
Judge Alito. Well, my personal religious beliefs are
important to me in my private life. They are an important part
of the way I was raised and they have been important to Martha
and me in raising our children. But my obligation as a judge is
to interpret and apply the Constitution and the laws of the
United States, and not my personal religious beliefs or any
personal moral beliefs that I have, and there is nothing about
my religious beliefs that interferes with my doing that. I have
a particular role to play as a judge and that does not involve
imposing any religious views that I have or moral views that I
have on the rest of the country.
Senator Durbin. That is virtually the same answer given by
Justice Roberts and I think from my point of view that is the
right answer. It is the same challenge many of us face on this
side of the table with decisions that we face.
Now, I asked Judge Roberts the following: Does the Free
Exercise Clause, in addition to the Establishment Clause,
protect the right of a person to be respected in America if
they have no religious beliefs, the non-believers?
Judge Alito. Yes, it does. It is freedom to worship and not
worship, as you choose, and compelling somebody to worship
would be a clear violation of the religion clauses of the First
Amendment.
Senator Durbin. Let me go to a specific case, the Black
Horse Pike Regional Board of Education case, in which you were
involved. And it is an interesting case and I hope this fact
pattern that I describe to you is correct.
The school board policy allowed the seniors at this school
to vote on having a graduation prayer, and the decision, it was
suggested, was whether that was coercing students who didn't
agree with that religious prayer or had no religious belief.
What is your feeling, or what was your feeling at that time
when it came to that decision?
Judge Alito. Well, that was the case that followed Lee v.
Weisman and preceded the Santa Fe case, which dealt with a
prayer before a football game. Lee v. Weisman involved a
situation in which the principal--and that was the most
directly relevant and a rather recent precedent at the time of
the Black Horse Pike case.
In Lee v. Weisman, the principal of a middle school, as I
recall, decided that there would be an invocation at the middle
school graduation, and selected a member of the clergy, a local
rabbi, to deliver the prayer and specified the nature of the
prayer that would be appropriate for the circumstances. And the
Supreme Court held that that was a violation of the
Establishment Clause.
The case that we considered in the Black Horse Pike case
involved a situation in which the high school left it up to the
students through an election to decide whether there would be a
prayer at the high school graduation and left it up to them to
select the person who would conduct the prayer, the student who
would lead them in the prayer, if that was--if they decided by
a vote to do that.
And so our job at that point was to decide whether this
fell on one side or the other of a line that I referred to
earlier which Justice O'Connor very helpfully--the distinction
that she drew between government religious speech, which is not
allowed, and private religious speech which is protected. The
government itself cannot speak on religious matters, but the
government also can't discriminate against private religious
speech. And we had here a situation--
Senator Durbin. That goes back to the Oliva case where the
student comes up with the drawing of Jesus, and that is a
voluntary, personal and private expression, as you have
described it.
Judge Alito. That is correct, and the Supreme Court has
recognized this in any number of cases. In the Rosenberger case
and the Good News Club case and the Lamb's Chapel case, they
have drawn this distinction.
So here we had a situation involving an election by the
students to pick somebody to lead them in prayer, and which
side of the line did it fall on? Well, it wasn't individual
student speech, but it was collective student speech by way of
an election. And that was what we had to decide, which side of
this line it fell on. And Judge Mansmann, who wrote the opinion
that I joined in that case, explained why we thought it fell on
the side of the line of individual student speech.
Senator Durbin. Let me ask you about that. Let me explore
for a second. You are dealing with a school board policy. A
school board is a government agency. They have set up the
policy, so it is not coming entirely from a voluntary personal
situation, like the Oliva case. And you know that the majority
is going to rule in the decision on whether there will be a
prayer and what the substance of the prayer will be.
How, then, could you respect the rights of the minority,
including people with different religious beliefs and non-
believers, if you leave it up to a majority vote?
Judge Alito. Well, that is why--that factor is why it was a
case that didn't--there could be debate about which side of
this line it fell on. Now, I think there also was a disclaimer
that was distributed at the time of the graduation explaining
to anybody who was in attendance that the prayer was not
endorsed--if there was a prayer, it wasn't endorsed by the
school board, and that this was a decision of the students.
There are factors there that fall on one side of the line.
There are factors there that point to the case being put on one
side of that line, factors that point to putting the case on
the other side of the line. And Judge Mansmann's opinion
explained why she thought, and I agree, that it would fall on
the private student speech side of the line. But it was a
question that was debatable.
And then the Sante Fe case came along later. It didn't
involved exactly the same situation, but it involved a related
situation, and that is now the Supreme Court's expression of
its opinion in the form of a precedent on the application to--
the application of this test that I have been talking about, a
situation like this.
Senator Durbin. As you have described it, this is not an
easy call. There are circumstances on both sides, and yet in
your dissent you use the phrase referring to the majority as
``hostility toward religion.'' It seems to me that you could
make a case that I am not hostile toward religion, but trying
to be sensitive to the rights of all to believe or not to
believe in America and come down on the opposite side of the
case.
Were you overstating your position in using that phrase
``hostility toward religion'' in describing the majority?
Judge Alito. That was--it was Judge Mansmann's opinion, in
which I joined, and I don't remember the phrase ``hostility to
religion.'' Obviously, it must be in there. I certainly don't
think that she meant to suggest that those who were objecting
to this were proceeding in bad faith, or even that they were
hostile to religion.
I think what she--I can't speak for her and I don't recall
the specific language, but looking at it now, the way I would
put it was that she probably thought that this was not giving
as much room for private religious speech as should be given.
Senator Durbin. I couldn't tell you what in the heck I ever
wrote in law school about anything, but in the second year in
law school you wrote a paper, I take it, some research, which
you had to tell us about here relative to the issue of
religion, and then in the 1985 memo raised the question about
the Warren Court on the Establishment Clause.
What was it that the Warren Court decided on the
Establishment Clause that troubled you, if you remember?
Judge Alito. Well, I actually think that the student note
from the Yale Law Journal is an illustration of the sort of
thing that has interested me and troubled me about the
jurisprudence in this area for a long time.
In the law school note, I talked about two--what are called
the release time cases. It was the McCollum case and Zorach v.
Clausen, both of which were decided just before Chief Justice
Warren took his seat. And they involved situations that were
quite similar. There was a distinction between the two
programs, but they were quite similar and the Court reached
contrary conclusions.
And unfortunately this has been a repeating--a recurring
pattern in the Establishment Clause jurisprudence, cases that
turn on extremely fine distinctions. The Supreme Court held in
Board of Education v. Allen, if I am remembering the correct
case, at the end of the Warren Court that it was permissible
for a school board to supply secular books to schools that are
related to a religious--that are religiously oriented. And then
later in another case--I think it was Wolman--they said but you
can't--but that doesn't apply to other instructional material,
other secular instructional material.
And this has been the thing about the Establishment Clause
that has bothered me, the absence of just what your initial
question was pointing to, some sort of theory that draws
distinctions that don't turn on these very fine lines.
Senator Durbin. Tell me about the Establishment Clause in a
more contemporary context if you can. You talked about the case
of the Warren Court in providing secular books to religious
schools, which I find no problem with. I think that is
acceptable from my point of view, for whatever that is worth.
But what about the concept and theory of financial support
from a government agency to a school that is a religious school
where the money is used for the purpose of teaching religion or
proselytizing?
Judge Alito. Well, I think the Court's precedents have been
very clear on that that the money--that a government body
cannot supply money to a school for the purpose of conducting
religious education. And I don't recall any--I don't recall a
suggestion in dissenting opinions--maybe there is one that I am
not recalling here that says that that would be permissible.
Senator Durbin. I am running out of time, but it would go
back to my first question. I think under the coercion test,
there is some argument among some on the Court and others that
not applying Lemon but using this new coercion test may give
them more leeway when it comes to this kind of financial
support and vouchers, but I don't want to presume that.
And I thank you for your responses to these questions.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Durbin.
Senator Brownback.
Senator Brownback. Thank you, Mr. Chairman.
We started off this morning and we will end today. I want
to thank you for