[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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                       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

                              ----------                              

                           JANUARY 9-11, 2006
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware.......................................................    15
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....    44
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......    47
Cornyn, Hon. John, a U.S. Senator from the State of Texas........    39
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........    24
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    41
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    31
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    26
Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina.......................................................    33
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    13
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     8
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................    10
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin...    21
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     5
    prepared statement...........................................  1229
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    36
    prepared statement...........................................  1443
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    28
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     2

                               PRESENTERS

Lautenberg, Hon. Frank R., a U.S. Senator from the State of New 
  Jersey presenting Samuel A. Alito, Jr., Nominee to be an 
  Associate Justice of the Supreme Court of the United States....    50
Whitman, Christine Todd, former Governor of New Jersey, and 
  former Administrator, U.S. Environmental Protection Agency, 
  presenting Samuel A. Alito, Jr., Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    51

                        STATEMENT OF THE NOMINEE

Alito, Samuel A., Jr., of New Jersey, Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    54
    Questionnaire................................................    58
                              ----------                              

                            JANUARY 12, 2006
                               WITNESSES

Aldisert, Ruggero J., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania......................   659
Axelrod, Edna Ball, Attorney at Law, Law Offices of Edna Ball 
  Axelrod, South Orange, New Jersey..............................   681
Barry, Maryanne Trump, Judge, U.S. Court of Appeals for the Third 
  Circuit, Philadelphia, Pennsylvania............................   658
Becker, Edward R., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania......................   654
Garth, Leonard I., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Chicago, Illinois...............................   661
Gerhardt, Michael J., Samuel Ashe Distinguished Professor of 
  Constitutional Law, University of North Carolina School of Law, 
  Chapel Hill, North Carolina....................................   683
Gibbons, John J., Judge (retired), U.S. Court of Appeals, and 
  Director, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, 
  Newark, New Jersey.............................................   664
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New 
  York University, New York, New York............................   687
Kirsanow, Peter N., U.S. Commission on Civil Rights, and Partner, 
  Benesch Friedlander Coplan & Aronoff, LLP, Cleveland, Ohio.....   685
Lewis, Timothy K., Judge (retired), U.S. Court of Appeals for the 
  Third Circuit, and Counsel, Schnader Harrison Segal & Lewis, 
  LLP, Washington, D.C...........................................   667
Liu, Goodwin, Assistant Professor of Law, Boalt Hall School of 
  Law, University of California, Berkeley, Berkeley, California..   690
Phillips, Carter G., Managing Partner, Sidley Austin, LLP, 
  Washington, D.C................................................   689
Scirica, Anthony J., Chief Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania......................   656
Tober, Stephen L., Esq., Chairman, American Bar Association 
  Standing Committee on the Federal Judiciary, Portsmouth New 
  Hampshire; accompanied by Marna Tucker, Esq., D.C. Circuit 
  Representative, American Bar Association Standing Committee on 
  the Federal Judiciary, Washington, D.C.; and John Payton, Esq., 
  Federal Circuit Representative, American Bar Association 
  Standing Committee on the Federal Judiciary, Washington, D.C...   641
                              ----------                              

                            JANUARY 13, 2006
                               WITNESSES

Chemerinsky, Erwin, Alston & Bird Professor of Law and Political 
  Science, Duke University Law School, Durham, North Carolina....   708
Demleitner, Nora V., Vice Dean for Academic Affairs and Professor 
  of Law, Hofstra University School of Law, Hempstead, New York..   706
Flym, John G.S., retired Professor of Law, Northeastern 
  University School of Law, Boston, Massachusetts................   738
Fried, Charles, former Solicitor General of the United States, 
  and Beneficial Professor of Law, Harvard Law School, Cambridge, 
  Massachusetts..................................................   713
Frost, Amanda, Assistant Professor of Law, Washington College of 
  Law, American University, Washington, D.C......................   736
Gonzalez, Hon. Charles A., a Representative in Congress from the 
  State of Texas.................................................   750
Gray, Fred D., Senior Partner, Gray, Langford, Sapp, McGowan, 
  Gray & Nathanson, Tuskegee, Alabama............................   728
Kronman, Anthony, Sterling Professor of Law and former Dean, Yale 
  Law School, New Haven, Connecticut.............................   710
Michelman, Kate, former President, National Abortion and 
  Reproductive Rights Action League Pro-Choice America, 
  Washington, D.C................................................   731
Nolan, Beth, Partner, Crowell & Moring, LLP, Washington, D.C.....   711
Pringle, Katherine L., Partner, Friedman Kaplan Seiler & Adelman 
  LLP, New York, New York........................................   748
Shaw, Theodore M., Director-Counsel and President, NAACP Legal 
  Defense and Educational Fund, Inc..............................   758
Sullivan, Ronald S., Jr., Associate Clinical Professor of Law, 
  and Senior Fellow, Jamestown Project, Yale Law School, New 
  Haven, Connecticut.............................................   733
Tribe, Laurence H., Carl M. Loeb University Professor and 
  Professor of Constitutional Law, Harvard Law School, Cambridge, 
  Massachusetts..................................................   714
Turner, Reginald M., Jr., President, National Bar Association, 
  Washington, D.C................................................   756
Wasserman Schultz, Hon. Debbie, a Representative in Congress from 
  the State of Florida...........................................   752
White, Jack, Associate, Kirkland and Ellis, LLP, San Francisco, 
  California.....................................................   754

                         QUESTIONS AND ANSWERS

Responses of Samuel A. Alito, Jr. to questions submitted by 
  Senators Biden, Durbin, Kennedy, Leahy, Levin, Schumer, and 
  Feingold.......................................................   773
Responses of Erwin Chemerinsky to questions submitted by Senators 
  Coburn and Kennedy.............................................   813
Response of Laurence Tribe to a question submitted by Senator 
  Coburn.........................................................   816

                       SUBMISSIONS FOR THE RECORD

Aldisert, Ruggero J., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania, prepared statement..   819
Alliance for Justice, Nan Aron, President, Washington, D.C., 
  letter and attachment..........................................   823
American Association for Affirmative Action, Shirley J. Wilcher, 
  Interim Executive Director, Washington, letter.................   839
American Association of University Women, Lisa M. Maatz, 
  Director, Public Policy and Government Relations, Washington, 
  D.C., letter...................................................   841
American Bar Association, Stephen L. Tober, Chair, Washington, 
  D.C.:
    letter, January 4, 2006......................................   843
    letter, January 9, 2006......................................   845
American Civil Liberties Union, Washington, D.C.:
    Shin Inouy, Legislative Office, January 9, 2006, press 
      release....................................................   865
    Anthony D. Romero, Executive Director, prepared statement....   867
American Federation of Labor and Congress of Industrial 
  Organizations, John J. Sweeney, President, Washington, D.C., 
  letter.........................................................   875
American Federation of State, County and Municipal Employees, 
  Gerald W. McEntee, International President, Washington, D.C., 
  letter.........................................................   877
Americans United for Separation of Church and State, Rev. Barry 
  W. Lynn, Executive Director, Washington, D.C., letter..........   879
ADA Watch/National Coalition for Disability Rights, Jim Ward, 
  Founder and President, Washington, D.C., letter................   881
Asian American Justice Center, Karen K. Narasaki, President and 
  Executive Director, Washington, D.C., letter...................   883
Attorneys General of various States, joint letter................   885
Axelrod, Edna Ball, Attorney at Law, South Orange, New Jersey, 
  prepared statement.............................................   888
Bar Association of San Francisco, Joan Haratani, President, San 
  Francisco, California, letter..................................   892
Bazelon Center for Mental Health Law, Robert Bernstein, Executive 
  Director, Washington, D.C., letter.............................   897
Becker, Edward R., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania, prepared statement..   899
B'nai B'rith International, Joel S. Kaplan, President and Daniel 
  S. Mariaschin, Executive Vice President, Washington, D.C., 
  letter.........................................................   904
Boston Globe, Boston, Massachusetts, January 10, 2006, article...   905
Brady Center to Prevent Gun Violence, Washington, D.C.:
    Mike Barnes, President, letter...............................   908
    Dennis A. Henigan, Director, Legal Action Project, prepared 
      statement..................................................   910
California Women Lawyers, Pearl Gondrella Mann, President, 
  Sacramento, California, letter.................................   930
Catholics for a Free Choice, Frances Kissling, President, 
  Washington, D.C., letter.......................................   934
Center for Reproductive Rights, New York, New York, prepared 
  statement......................................................   937
Chemerinsky, Erwin, Alston & Bird Professor of Law and Political 
  Science, Duke University Law School, Durham, North Carolina, 
  prepared statement.............................................   946
Chertoff, Michael, Secretary, Department of Homeland Security, 
  Washington, D.C., press release................................   957
Chicago Tribune, Steven Lubet and David McGowan, November 18, 
  2005, article..................................................   958
Colorado Hispanic Bar Association, Victoria Lovato, President, 
  Denver, Colorado, letter.......................................   960
Congressional Hispanic Caucus, Hon. Grace Flores Napolitano, 
  Chair, and Hon. Charles A. Gonzales, Chair, Congressional 
  Hispanic Caucus Civil Rights Task Force, Washington, D.C.:
    January 6, 2006, letter......................................   963
    January 20, 2006, letter.....................................   967
Congress of the United States, women Members of Congress, 
  Washington, D.C., letter.......................................   969
Daily Princetonian, Princeton, New Jersey, article...............   972
Deans or former deans of law schools, joint letter...............   976
Demleitner, Nora V., Vice Dean for Academic Affairs and Professor 
  of Law, Hofstra University School of Law, Hempstead, New York, 
  prepared statement.............................................   979
Dujack, Stephen R., Alexandria, Virginia, prepared statement.....   982
Earthjustice, Vawter Parker, Executive Director, Washington, 
  D.C., letter...................................................   992
Factual responses to falsehoods in the Knight-Ridder article 
  attacking Judge Alito, list....................................   994
Fellow judges criticize application of precedent, list...........   998
Feminist Majority, Eleanor Smeal, President, Arlington, Virginia, 
  letter.........................................................  1000
Ferrara, Ralph C., former General Counsel of the Securities and 
  Exchange Commission, and Partner, LeBoeuf, Lamb, Greene & 
  MacRae LLP, Washington, D.C., letter...........................  1002
Fleming, Cathy, Edwards Angell Palmer & Dodge, LLP, New York, New 
  York, letter...................................................  1006
Flym, John G.S., retired Professor of Law, Northeastern 
  University School of Law, Boston, Massachusetts, prepared 
  statement......................................................  1008
Former law clerks of Judge Samuel A. Alito, Jr., joint letter....  1024
Fraternal Order of Police, Grand Lodge, Chuck Canterbury, 
  National President, Washington, D.C., letter...................  1029
Fried, Charles, former Solicitor General of the United States, 
  and Beneficial Professor of Law, Harvard Law School, Cambridge, 
  Massachusetts, prepared statement..............................  1031
Friends of the Earth, Brent Blackwelder, President, Washington, 
  D.C., letter...................................................  1037
Frost, Amanda, Assistant Professor of Law, Washington College of 
  Law, American University, Washington, D.C., prepared statement.  1039
Garth, Leonard I., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Chicago, Illinois, prepared statement...........  1050
Gerhardt, Michael J., Samuel Ashe Distinguished Professor of 
  Constitutional Law, University of North Carolina School of Law, 
  Chapel Hill, North Carolina, prepared statement................  1060
Gibbons, John J., Judge (retired), U.S. Court of Appeals, and 
  Director, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, 
  Newark, New Jersey, prepared statement.........................  1079
Gillers, Stephen, Emily Kempin Professor of Law, New York 
  University School of Law, New York, New York, letter...........  1091
Gonzales, Hon. Charles A., a Representative in Congress from the 
  State of Texas, prepared statement.............................  1096
Gray, Fred D., Senior Partner, Gray, Langford, Sapp, McGowan, 
  Gray & Nathanson, Tuskegee, Alabama, prepared statement........  1105
Hazard, Geoffrey C., Jr., Trustee Professor of Law, University of 
  Pennsylvania, Philadelphia, Pennsylvania, letter...............  1114
Higginbotham, Michael, Wilson Elkins Professor of Law, University 
  of Baltimore School of Law, Baltimore, Maryland, letter........  1118
Human Rights Campaign, Joe Solmonese, President, Washington, D.C. 
  prepared statement and letter..................................  1120
Independent Living Center of Kern County, Norris Ledbetter, 
  System Change Coordinator, and Bonita Coyle, Executive 
  Director, Bakersfield, California, letter......................  1126
Independent Living Resource Center San Francisco, Herb Levine, 
  Executive Director, San Francisco, California, letter..........  1131
Instances of judges testifying during Supreme Court confirmation 
  hearings, list.................................................  1133
Ipas, Charlotte Hord Smith, Policy Director, Chapel Hill, North 
  Carolina, letter...............................................  1134
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New 
  York University, New York, New York, prepared statement........  1136
Jackson Lee, Hon. Sheila, a Representative in Congress from the 
  State of Texas, letter.........................................  1140
Japanese American Citizens League, John Tateishi, National 
  Executive Director, San Francisco, California, letter..........  1149
Jewish Community Action, Vic Rosenthal, Executive Director, St. 
  Paul, Minnesota, prepared statement............................  1151
Jewish Council on Urban Affairs, Chicago, Illinois, prepared 
  statement......................................................  1153
Journal of Child Psychology and Psychiatry, Malden, 
  Massachusetts, article.........................................  1155
Kirsanow, Peter N., U.S. Commission on Civil Rights, and Partner, 
  Benesch Friedlander Coplan & Aronoff, LLP, Cleveland, Ohio, 
  prepared statement.............................................  1164
Kronman, Anthony, Sterling Professor of Law and former Dean, Yale 
  Law School, New Haven, Connecticut, prepared statement.........  1176
Lambda Legal, Kevin M. Cathcart, Executive Director, New York, 
  New York, letter...............................................  1180
Law professors who oppose the confirmation of Judge Alito, joint 
  letter.........................................................  1182
Law professors who support the confirmation of Judge Alito, joint 
  letter.........................................................  1208
Lawyers' Committee for Civil Rights Under Law, Marjorie Press 
  Lindblom, Co-Chair and Robert E. Harrington, Co-Chair, 
  Washington, D.C, prepared statement and letter.................  1210
Leadership Conference on Civil Rights, Dorothy I. Height, 
  Chairperson, and Wade Henderson, Executive Director, 
  Washington, D.C., letter.......................................  1216
League of United Latin American Citizens, Washington, D.C., press 
  release........................................................  1227
Legal Momentum, Lisalyn R. Jacobs, Vice President for Government 
  Relations, Washington, D.C., letter............................  1232
Legal professionals in support of the nomination of Judge Samuel 
  A. Alito, Jr., joint letter....................................  1234
Liu, Goodwin, Assistant Professor of Law, Boalt Hall School of 
  Law, University of California, Berkeley, Berkeley, California, 
  prepared statement.............................................  1245
Mabel Wadsworth Women's Health Center, Ruth Lockhart, Executive 
  Director, Sharon Barker, President, Board of Directors, and 
  Stephanie Cotsirilos, past President, Board of Directors, 
  Bangor, Maine, letter..........................................  1262
Mexican American Legal Defense and Educational Fund, Ann Marie 
  Tallman, President, General Counsel, Los Angeles, California, 
  prepared statement.............................................  1268
Michelman, Kate, former President, National Abortion and 
  Reproductive Rights Action League Pro-Choice America, 
  Washington, D.C., prepared statement...........................  1271
Morgan, Thomas D., Oppenheim Professor of Antitrust and Trade 
  Regulation Law, George Washington School of Law, Washington, 
  D.C., letter...................................................  1276
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Director, Washington Bureau, Washington, 
  D.C., letter...................................................  1279
NAACP Legal Defense and Educational Fund, Inc., Theodore M. Shaw, 
  Director-Counsel and President, Washington, D.C., prepared 
  statement and attachment.......................................  1281
NARAL Pro-Choice America, Nancy Keenan, President, Washington, 
  D.C., prepared statement and letter............................  1289
National Abortion Federation, Vicki A. Saporta, President and 
  Chief Executive Officer, Washington, D.C., prepared statement 
  and letter.....................................................  1298
National Association of Social Workers, Elizabeth J. Clark, 
  Executive Director, Washington, D.C., letter...................  1304
National Association of Women Lawyers, Stephanie A. Scharf, 
  Chair, Committee for the Evaluation of Supreme Court Nominees, 
  Chicago, Illinois, letter and attachment.......................  1305
National Cancer Institute, U.S. National Institutes of Health, 
  Washington, D.C., report and fact sheets.......................  1308
National Council of Jewish Women, Phyllis Snyder, President, New 
  York, New York, prepared statement and letter..................  1323
National Council of Women's Organizations, Susan Scanlan, Chair, 
  and Terry O'Neil, Executive Director, Washington, D.C., letter.  1328
National Council on Independent Living, John Lancaster, Executive 
  Director, and Kelly Buckland, President, Arlington, Virginia, 
  letter.........................................................  1329
National District Attorneys Association, Paul A. Logli, 
  President, and Thomas J. Charron, Executive Director, 
  Alexandria, Virginia, letter and resolution....................  1334
National Employment Lawyers Association, Marissa M. Tirona, 
  Program Director, San Francisco, California, letter............  1336
National Family Planning and Reproductive Health Association, 
  Judith M. DeSarno, President, Chief Executive Officer, 
  Washington, D.C., letter.......................................  1337
National Gay and Lesbian Task Force, Matt Foreman, Executive 
  Director, Washington, D.C., letter.............................  1338
National Journal Group Inc., Washington, D.C.:
    December 12, 2005, article...................................  1340
    January 9, 2006, article.....................................  1344
National Latina Institute for Reproductive Health, Silvia 
  Henriquez, Executive Director, New York, New York, letter......  1347
National Organization for Women, Kim Gandy, President, 
  Washington, D.C., prepared statement and letter................  1349
National Partnership for Women & Families, Debra L. Ness, 
  President, Washington, D.C., letter and prepared statement.....  1352
National Urban League, Marc H. Morial, President and Chief 
  Executive Officer, New York, New York, letter..................  1382
National Women's Law Center, Nancy Duff Campbell, Co-President 
  and Marcia D. Greenberger, Co-President, Washington, D.C., 
  letter.........................................................  1383
Nolan, Beth, Partner, Crowell & Moring, LLP, Washington, D.C., 
  prepared statement.............................................  1386
Pennsylvania State Senators in support of Judge Samuel Alito, 
  Harrisburg, Pennsylvania, joint letter.........................  1395
People For the American Way, Ralph G. Neas, President, 
  Washington, D.C., letter.......................................  1398
Phillips, Carter G., Managing Partner, Sidley Austin, LLP, 
  Washington, D.C., prepared statement...........................  1400
Physicians for Reproductive Choice and Health, Wendy Chavkin, MD, 
  MPH, Board Chair, New York, New York, prepared statement.......  1405
Planned Parenthood of America and Planned Parenthood Action Fund, 
  Karen Pearl, Interim President, Washington, D.C., letter and 
  prepared statement.............................................  1408
Precedents Justice Thomas has called for unraveling, list........  1417
Princeton Packet, Princeton, New Jersey, February 12, 1985, 
  article........................................................  1420
Pringle, Katherine L., Partner, Friedman Kaplan Seiler & Adelman, 
  LLP, New York, New York, prepared statement....................  1422
Reach Out America, Dorothy Puryear, Executive Committee, and 
  Sybil Bank, Executive Committee, Great Neck, New York, letter..  1425
Religious Action Center of Reform Judaism, Rabbi David 
  Saperstein, Director and Counsel, and Jane Wishner, Chair, 
  Commission on Social Action of Reform Judaism, Washington, 
  D.C., letter...................................................  1426
Religious Coalition for Reproductive Choice, Reverend Carlton W. 
  Veazey, President and CEO, Washington, D.C., letter............  1429
Republican Majority for Choice, Washington, D.C., Janury 11, 
  2006, press release............................................  1431
Rotunda, Ronald D., George Mason University Foundation Professor 
  of Law, George Mason University School of Law, Arlington, 
  Virginia, letter...............................................  1433
Sergeants Benevolent Association, Police Department, City of New 
  York, Ed Mullins, President, New York, New York, letter........  1448
Service Employees International Union, Andrew L. Stern, 
  International President, and Anna Burger, International 
  Secretary-Treasurer, Washington, D.C., letter..................  1450
Shaw, Theodore M., Director-Counsel and President, NAACP Legal 
  Defense & Educational Fund, Inc., Washington, D.C., prepared 
  statement......................................................  1456
Sierra Club, Patrick Gallagher, Director, Environmental Law 
  Program, Washington, D.C., letter..............................  1460
Sullivan, Ronald S., Jr., Associate Clinical Professor of Law, 
  and Senior Fellow, Jamestown Project, Yale University, New 
  Haven, Connecticut, prepared statement.........................  1464
Sydney Morning Herald, Sydney, Australia, January 3, 2006, 
  article........................................................  1491
Tober, Stephen L., Esq., American Bar Association, Washington, 
  D.C., prepared statement.......................................  1493
Tribe, Laurence H., Carl M. Loeb University Professor and 
  Professor of Constitutional Law, Harvard Law School, Cambridge, 
  Massachusetts, prepared statement..............................  1498
Turner, Reginald M., Jr., President, National Bar Association, 
  Washington, D.C., prepared statement...........................  1519
Union of Orthodox Jewish Congregations of America, Institute for 
  Public Affairs, Mark Bane, Chair, and Nathan J. Diament, 
  Director, Washington, D.C., letter.............................  1536
Unitarian Universalist Association of Congregations, Robert C. 
  Keithan, Director, Washington, D.C., letter....................  1540
United Automobile, Aerospace and Agricultural Implement Workers 
  of America, Alan Reuther, Legislative Director, letter.........  1543
Violence Policy Center, M. Kristen Rand, Legislative Director, 
  Washington, D.C., letter.......................................  1545
Walk, R. David, Jr., Dechert LLP, Swarthmore, Pennsylvania, 
  letter.........................................................  1548
Wall Street Journal, New York, New York, January 5, 2006, article  1550
Washington Post, Washington, D.C.:
    January 2, 2006, article.....................................  1556
    January 8, 2006, article.....................................  1558
    January 9, 2006, article.....................................  1564
Washington Times, Washington, D.C., January 13, 2006, article....  1570
Wasserman Schultz, Hon. Debbie, a Representative in Congress from 
  the State of Florida, prepared statement.......................  1572
White, Jack, Associate, Kirkland & Ellis LLP, Washington, D.C., 
  prepared statement.............................................  1581
Women of Reform Judaism, Shelley Lindauer, Executive Director, 
  and Rosanne M. Selfon, President, Lancaster, Pennsylvania, 
  letter.........................................................  1585
Women's Medical Fund, Inc., Anne Nicol Gaylor, Administrator, 
  Madison, Wisconsin, letter.....................................  1586
YWCA USA, Peggy Sanchez Mills, Chief Executive Officer, 
  Washington, D.C., letter.......................................  1587


 NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

                              ----------                              


                        MONDAY, JANUARY 9, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 12 p.m., in room 
216, Hart Senate Office Building, Hon. Arlen Specter, Chairman 
of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, 
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
    Chairman Specter. Good afternoon, ladies and gentlemen. The 
Senate Judiciary Committee will now proceed to the confirmation 
hearing of Judge Samuel Alito, Jr. for the Supreme Court of the 
United States. A few matters of administration or housekeeping, 
and then we will proceed to the opening statements.
    Today we will hear first from Judge Alito--the introduction 
of his family. Judge, the floor is yours to introduce your 
family.
    Judge Altio. Thank you very much, Mr. Chairman. Let me 
introduce my wife, Martha, who is here today; and my sister, 
Rosemary, who is a lawyer in New Jersey and a tough trial 
lawyer. I am glad that she took time from her schedule to come 
to the hearing today. My daughter, Laura, who is a senior at 
James Caldwell High School in West Caldwell, New Jersey; and if 
a father can be permitted to brag for a second, a really great 
swimmer who led her high school team to win the county 
championship last week. My son, Phillip, who is a second-year 
student at the University of Virginia. And when I had my 
confirmation hearing for the Court of Appeals, Phillip was 3 
years old. And when I was called up to the chair, he took it 
upon himself to run up and sit next to me in case any hard 
questions came up.
    [Laughter.]
    Judge Altio. I don't know whether he is going to try the 
same thing tomorrow, but probably I could use the help.
    I am glad that my in-laws are able to be here today: my 
father-in-law, Gene Bomgardner, who is a retired Air Force NCO; 
and my mother-in-law, Barbara Bomgardner, who is a retired Air 
Force librarian. And my cousins Andrew and Aldomar Kiriev from 
Gwynedd Valley, Pennsylvania, are also here.
    My mother, who turned 91 a couple of weeks ago, 
unfortunately is not able to be here today, but I am sure she 
is watching at home.
    Thank you very much, Mr. Chairman.
    Chairman Specter. Well, thank you, Judge Alito. You have a 
beautiful family, and we are delighted to have them with us on 
the confirmation proceedings.
    We will have 10-minute rounds of opening statements, each 
Senator 10 minutes. We will then turn to the presenters, those 
who will be presenting Judge Alito formally to the Committee. 
And then we will administer the oath to Judge Alito, and we 
will hear his testimony.
    We will begin tomorrow morning at 9:30 for the opening 
round of questions. Each Senator will have 30 minutes on the 
opening round, and we have a second round scheduled of 20 
minutes for each Senator. And then we will see how we will 
proceed.
    Our practice is to adhere to the time limits, and we do 
that for a number of reasons. One of them is that Senators come 
and go, and if we maintain the schedule, which is known to 
everybody, they know when to return for their next round of 
questions. We will take 15-minute breaks at a convenient time, 
and, again, we will hold the breaks to 15 minutes.
    I have worked closely with Senator Leahy on scheduling 
matters and all other matters, and this is the model that we 
used for the confirmation of Chief Justice Roberts. It is our 
intention to conclude the hearings this week, and as Senator 
Leahy and I worked out, the arrangement is to have a markup on 
Tuesday, January the 17th, subject to something extraordinary 
happening.
    Now let me yield to the distinguished Ranking Member, 
Senator Leahy.
    Senator Leahy. Well, Mr. Chairman, I don't want to hold up 
your opening statement, or the others. I do appreciate people 
being here. As the hearing for Chief Justice John Roberts 
showed, there will be real questions asked. I would hope 
Senators on both sides of the aisle would do that. I think it 
is important. We are talking about a position representing 295 
million Americans.
    On the schedule, I will work with the senior Senator from 
Pennsylvania, the Chairman. I understand one of our leaders 
once said that getting Senators to all move in order is like 
having bullfrogs in a wheelbarrow. But we will continue to work 
towards that, and I think the most important thing is we have a 
good, solid hearing this week.
    Mr. Chairman, you have been totally fair in your procedures 
for this, as always.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Thank you very much, Senator Leahy. And 
now we begin the opening statements.
    No Senator's vote, except for the declaration of war or the 
authorization for the use of force, is more important than the 
confirmation of a nominee to the Supreme Court for a lifetime 
appointment. Judge Alito comes to this proceeding with 
extensive experience as a Government lawyer, as a prosecutor, 
and as a judge. He has written some 361 opinions. He has voted 
in more than 4,800 cases. And it is possible to select a few of 
his cases to place him at any and every position on the 
judicial spectrum. By selecting the right cases, he could look 
like a flaming liberal or he could look like an arch-
conservative.
    This hearing will give Judge Alito the full opportunity to 
address the concerns of 280 million Americans on probing 
questions which will be put to him by 18 Senators representing 
their diverse constituencies. I have reserved my own vote on 
this nomination until the hearing is concluded. I am committed 
as Chairman to a full, fair, and dignified hearing. Hearings 
for a Supreme Court nominee should not have a political tilt 
for either Republicans or Democrats. They should be in 
substance and in perception for all Americans.
    There is no firmly established rule as to how much a 
nominee must say to be confirmed. While I personally consider 
it inappropriate to ask the nominee how he would vote on a 
specific matter likely to come before the Court, Senators may 
ask whatever they choose, and the nominee is similarly free to 
respond as he chooses. It has been my experience that the 
hearings are really, in effect, a subtle minuet, with the 
nominee answering as many questions as he thinks necessary in 
order to be confirmed.
    Last year, when President Bush had two vacancies to fill, 
there was concern expressed that there might be an ideological 
change in the Court. The preliminary indications from Chief 
Justice Roberts's performance on the Court and his Judiciary 
Committee testimony on modesty, stability, and not jolting the 
system all suggest that he will not move the Court in a 
different direction. If that holds true, Judge Alito, if 
confirmed, may not be the swing vote regardless of what 
position Judge Alito takes on the political spectrum.
    Perhaps the dominant issue in these hearings is the 
widespread concern about Judge Alito's position on a woman's 
right to choose. This has arisen in part because of a 1985 
statement made by Judge Alito that the Constitution does not 
provide for the right to an abortion. It has arisen in part 
because of his advocacy in the Solicitor General's office 
seeking to limit or overrule Roe and from the dissenting 
portion of his opinion in Casey v. Planned Parenthood in the 
Third Circuit.
    This hearing will give Judge Alito the public forum to 
address the issue as he has with Senators in private meetings, 
that his personal views and prior advocacy will not determine 
his judicial decisions, but instead he will weigh factors such 
as stare decisis, that is, what are the precedents; that he 
will weigh women's and men's reliance on Roe and he will 
consider too whether Roe is ``embedded in the culture of our 
Nation.''
    The history of the Court is full of surprises on the issue. 
The major case upholding Roe was Casey v. Planned Parenthood, 
where the landmark opinion was written jointly by three 
Justices, Justice O'Connor, Justice Kennedy and Justice Souter. 
Before coming to the Court, Justice Souter, Justice Kennedy and 
Justice O'Connor, had all expressed views against a woman's 
right to choose. David Souter, as Attorney General of New 
Hampshire, even opposed changing New Hampshire's law 
prohibiting abortion even after the Supreme Court of the United 
States had declared it unconstitutional. At the time of Justice 
Souter's confirmation hearing, there was a stop Souter rally of 
the National Organization for Women a few blocks from where we 
currently are holding this hearing, displaying in red a banner 
``Stop Souter or Women Will Die,'' ``Stop Souter Rally, a Mass 
Lobbying Day,'' somewhat similar to this morning's press where 
banners are paraded in front of the Supreme Court ``Save Roe'' 
and a brochure circulated again by NOW, ``Save Women's Lives, 
Vote No on Alito.''
    The history of this issue has been one full of surprises. 
This hearing comes at a time of great national concern about 
the balance between civil rights and the President's national 
security authority. The President's constitutional powers as 
commander in chief to conduct electronic surveillance appear to 
conflict with what Congress has said in the Foreign 
Intelligence Surveillance Act. This conflict involves very 
major considerations raised by Justice Jackson's historic 
concurrence in the Youngstown Steel seizure cases, where 
Justice Jackson wrote, ``When the President acts pursuant to an 
express or implied authorization of Congress, his authority is 
at its maximum, for it includes all that he possesses in his 
own right, and all that Congress can delegate. When the 
President acts in absence of a congressional grant of 
authority, he can rely only upon his own independent powers. 
When the President takes measures incompatible with the express 
or implied will of Congress, his power is at its lowest ebb.'' 
And as Justice Jackson noted, ``What is at stake is the 
equilibrium established in our constitutional system.''
    Another major area of concern is congressional power, and 
in recent decisions the Supreme Court of the United States has 
declared Acts of Congress unconstitutional, really denigrating 
the role of Congress. In declaring unconstitutional legislation 
designed to protect women against violence, the Supreme Court 
did so notwithstanding a voluminous record in support of that 
legislation, but because of Congress's ``method of reasoning,'' 
rather insulting to suggest that there is some superior method 
of reasoning in the Court.
    When the Supreme Court handled two cases recently on the 
Americans with Disabilities Act, they upheld the Act as it 
applied to discrimination as to access, and declared it 
unconstitutional as it applied to discrimination in employment. 
They did so by applying a test of what is called ``congruent 
and proportionate,'' which candidly stated, no one can figure 
out. In dissent, Justice Scalia called it a flabby test, where 
the Court set itself up as the taskmaster to see if Congress 
had done its homework, and Justice Scalia said that it was an 
invitation to judicial arbitrariness by policy driven 
decisionmaking, and this hearing, I know, will involve 
consideration as to Judge Alito's views on congressional power.
    There is reason to believe that our Senate confirmation 
hearings may be having an effect on Supreme Court nominees on 
their later judicial duties. Years after their hearings, 
Supreme Court Justices talk to me about our dialogs at these 
hearings. This process has now evolved to a point where 
nominees meet most of the Senators. In this process, nominees 
get an earful. While no promises are extracted, statements are 
made by nominees which may well influence their judicial 
decisions. Chief Justice Roberts, for example, will have a 
tough time giving a jolt to the system after preaching modesty 
and stability. There is, I think, a heavy sense of drama as 
these hearings begin. This is the quintessential example of 
separation of powers under our constitutional process, as the 
President nominates, the Senate confirms or rejects, and the 
successful nominee ascends to the bench. While it may be a bit 
presumptuous, I believe the Framers, if they were here, would 
be proud and pleased to see how well their Constitution is 
being applied.
    My red light just went on, and I now yield to my 
distinguished colleague, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    Good afternoon, Judge and Mrs. Alito, and the others.
    Following up on what the Chairman was saying, the challenge 
for Judge Alito in the course of these hearings is to 
demonstrate that he is going to protect the rights and 
liberties of all Americans, and in doing that, serve as an 
effective check on Government overreaching. I have said that 
the President did not help his cause by withdrawing his earlier 
nomination of Harriet Miers in the face of criticism from a 
narrow faction of his own party who were concerned about how 
she might vote.
    Supreme Court nominations should not be conducted through a 
series of winks and nods designed to reassure a small faction 
of our population, while leaving the American people in the 
dark. And no President, I think we would all agree, should be 
allowed to pack the courts, and especially the Supreme Court, 
with nominees selected to enshrine Presidential claims of 
Government power. The checks and balances that should be 
provided by the courts, Congress and the Constitution are too 
important to be sacrificed to a narrow partisan agenda.
    This hearing is the opportunity for the American people to 
learn what Samuel Alito thinks about their fundamental 
constitutional rights and whether he--you, Judge--will protect 
their liberty, their privacy and their autonomy from Government 
intrusion.
    The Supreme Court belongs to all Americans, not just to the 
person occupying the White House, and not just to a narrow 
faction of either political party, because the Supreme Court is 
our ultimate check and balance. Independence of the Court and 
its members is crucial to our democracy and our way of life, 
and the Senate should never be allowed to be a rubber stamp. 
Neither should the Supreme Court. So I will ask the Judge to 
demonstrate his independence from the interests of the 
President nominating him. This is a nomination to a lifetime 
seat on the Nation's highest Court. It is a seat that has often 
represented the decisive vote on constitutional issues, so we 
have to make an informed decision. That means knowing more 
about Samuel Alito's work in the Government and knowing more 
about his views.
    I will, as the Judge knows, ask about the disturbing 
application he wrote to become a political appointee in the 
Meese Justice Department. In that application he professed 
concern with the fundamental principle of ``one person, one 
vote,'' a principle of the equality that is the bedrock of our 
laws. This hearing is the only opportunity that the American 
people and their representatives have to consider the 
suitability of the nominee to serve as a final arbiter on the 
meaning of the Constitution and its laws. Has he demonstrated 
commitment to the fundamental rights of all Americans? Would he 
allow the Government to intrude on Americans' personal privacy 
and freedoms?
    In a time when this administration seems intent on 
accumulating unchecked power, Judge Alito's views on Executive 
power are especially important. It is important to know whether 
he would serve with judicial independence or as a surrogate for 
the President nominating him. So this public conversation, this 
hearing over the next few days is extremely important. It is 
the people's Constitution and the people's right that we are 
all charged with protecting and preserving. In this hearing we 
embark on the constitutional process, one that was designed to 
protect these rights and has served this country so very well 
for more than two centuries.
    I am reminded of a photograph, Mr. Chairman, that hangs in 
the National Constitution Center in Philadelphia. It shows the 
first women ever to serve on the Supreme Court of the United 
States taking the oath of office in 1981. How Justice Sandra 
Day O'Connor serves is as a model Supreme Court Justice, widely 
recognized as a jurist with practical values and a sense of the 
consequences of the legal decisions being made by the Supreme 
Court. I regret that some on the extreme right have been so 
critical of Justice O'Connor, and that they adamantly oppose 
the naming of a successor who shares her judicial philosophy 
and qualities. Their criticism actually reflects poorly upon 
them. It does nothing to tarnish the record of the first woman 
to serve as Associate Justice of the Supreme Court of the 
United States. She is a Justice whose graciousness and sense of 
duty fuels her continued service, even agreeing to serve more 
than 6 months after her retirement date, and I know both you 
and I commend her for that.
    The Court that serves America should reflect America. This 
nomination was an opportunity, of course, for the President to 
make a nomination based on diversity. He did not, even though 
there is no dearth of highly qualified Hispanics and African-
Americans, other individuals who could well have served as 
unifying nominees while adding to diversity. But that, of 
course, is the President's choice, Judge, not yours. But I look 
forward to a time when the membership of the Supreme Court is 
more reflective of the country it serves.
    As the Senate begins its consideration of President Bush's 
nominee, his third to this seat, to Justice O'Connor's seat, we 
do so mindful of her critical role in the Supreme Court. Her 
legacy is one of fairness, and when I decide how to vote it is 
because I want to see that legacy preserved. Justice O'Connor 
has been a guardian of the protections the Constitution 
provides the American people. She has come to provide balance 
and a check on Government intrusion into our personal privacy 
and freedoms. In the Hamdi decision she rejected the Bush 
administration's claim that they could indefinitely detain a 
United States citizen. She upheld the fundamental principle of 
judicial review over the exercise of Government power, and she 
wrote--and this is one we should all remember--she wrote that 
even war is not a blank check for the President when it comes 
to the rights of the Nation's citizens. She held that even this 
President is not above the law, and of course, no President, 
Democratic or Republican, no President is above the law, as 
neither are you, nor I, nor anyone in this room.
    Her judgment has also been critical in protecting our 
environmental rights. She joined in 5-4 majorities affirming 
reproductive freedom, and religious freedom, and the Voting 
Rights Act. I mention each of these cases because they show how 
important a single Supreme Court Justice is, and it is crucial 
that we determine what kind of Justice Samuel Alito would be if 
confirmed. Of course, Judge, my question will be, will you be 
an independent jurist?
    It is as the elected representatives of the American 
people, all of the people, nearly 300 million people, that we 
in the Senate are charged with the responsibility to examine 
whether to entrust their precious rights and liberties to this 
nominee. The Constitution is their document. It guarantees 
their rights from the heavy hand of Government intrusion, and 
individual liberties, to freedom of speech, to religion, to 
equal treatment, to due process and to privacy. Actually, this 
hearing, this is their process. The Federal Judiciary is unlike 
the other branches of Government. Once confirmed, a Federal 
Judge serves for life, and there is no court above the Supreme 
Court. The American people deserve a Supreme Court Justice who 
can demonstrate that he or she will not be beholden to the 
President, but only to the law.
    Last October, the President succumbed to partisan pressure 
from the extreme right of his party by withdrawing Harriet 
Miers. By withdrawing her nomination and substituting this one, 
the President has allowed his choice to be vetoed by an extreme 
faction within his party before even a hearing or a vote. 
Frankly, that was an eye-opening experience to me. It gives the 
impression there are those who do not want an independent 
Federal Judiciary. They demand judges who will guarantee the 
results that they want, and that is why the questions will be 
asked so specifically of you, Judge.
    The nomination is being considered against the backdrop of 
another recent revelation, that the President has, outside the 
law, been conducting secret and warrantless spying on Americans 
for more than 4 years. This is a time when the protections of 
America's liberties are directly at risk, as are the checks and 
balances that serve to constrain abuses of power for more than 
200 years. The Supreme Court is relied upon by all of us to 
protect our fundamental rights.
    I have not decided how I will vote in this nomination, and 
like the Chairman, I will base my determination on the whole 
record at the conclusion of these hearings, just as I did in 
connection with the nomination of John Roberts to be Chief 
Justice. At the conclusion of those hearings I determined to 
vote for him.
    The stakes for the American people could not be higher. At 
this critical moment, Senate Democrats serving on this 
Committee will perform our constitutional advice and consent 
responsibility with heightened vigilance. I would urge all 
Senators, Republicans and Democrats and Independents, to join 
with us in serious consideration. The appointment of the next 
Supreme Court Justice must be made in the people's interest and 
in the Nation's interest, not in the interest of any partisan 
faction.
    Mr. Chairman, Thank you very much.
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Hatch.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Senator Hatch. Thank you, Mr. Chairman.
    I welcome you, Judge Alito, your family members, friends 
and others who are accompanying you.
    This hearing is part of an ongoing evaluation of Judge 
Samuel Alito's nomination to replace Justice Sandra Day 
O'Connor as Associate Justice of the Supreme Court of the 
United States. It is remarkable that after a nearly record-long 
period without a Supreme Court vacancy, we are here considering 
a second nominee in less than 6 months.
    Mr. Chairman, let me first commend you for firmly and 
fairly handling these hearings. The timetable we are following 
reflects your efforts to accommodate all sides, and the 70 days 
since President Bush announced the nomination significantly 
exceeds the average for other Supreme Court nominees.
    The debate over this and other judicial nominations is a 
debate over the judiciary itself. It is a debate over how much 
power unelected judges should have in our system of government, 
how much control judges should have over a written Constitution 
that belongs to the people. Ending up in the right place in 
this debate requires starting in the right place. The right 
place to start is the proper description of what judges are 
supposed to do, and the rest of the process should reflect this 
judicial job description.
    The process for evaluating Judge Alito's nomination began 
when President Bush announced it more than 2 months ago. It 
continued with Judge Alito's meetings with more than two-thirds 
of the Senators and a vigorous debate in the media among 
analysts, scholars, and activists. As the Senate completes the 
evaluation process, we must keep some very important principles 
in mind and follow a few basic rules.
    The first principle is that in this judicial selection 
process, the Senate and the President have different roles. 
Under the Constitution, the President, not the Senate, 
nominates and appoints judges. The Senate has a different role. 
We must give our advice about whether President Bush should 
actually appoint Judge Alito by giving or withholding our 
consent. Abiding by the Constitution's design and our own 
historical tradition requires that after Judge Alito's 
nomination reaches the Senate floor, we vigorously debate it 
and then vote up or down.
    The second principle is that in our system of Government 
the judicial and legislative branches have different roles. As 
Chief Justice Roberts described it when he was before this 
Committee last fall, ``Judges are not politicians. Judges must 
decide cases, not champion causes. Judges must settle legal 
disputes, not pursue agendas. Judges must interpret and apply 
the law, not make the law.'' This principle that judges are not 
politicians lies at the very heart of the judicial job 
description.
    In addition to these two principles, a few basic rules 
should guide how we complete this confirmation process. First, 
we must remember that judicial nominees are constrained in what 
they may discuss and how they may discuss it. Like Chief 
Justice Roberts and others before him, Judge Alito is already a 
Federal judge. He not only will be bound by the canons of 
judicial ethics as a Supreme Court Justice, he is already bound 
by these canons as an appeals court judge. Because judges may 
not issue advisory opinions, judicial nominees may not do so 
either, especially on issues likely to come before the Court. 
That rule has always been honored.
    Needless to say, those who will demand such advisory 
opinions in this hearing will do so precisely on those issues 
that are likely to come before the Court. They have a right to 
ask those questions. But as the Washington Post editorialized 
just this morning, however, ``he will not--and should not--tell 
Americans how he will vote on hotly contested issues.''
    When Judge Ruth Bader Ginsburg was before us in 1993, she 
said that her standard was to give no hints, no forecasts, no 
previews, and declined to answer dozens of questions.
    The second rule we should follow is to consider each part 
of Judge Alito's record on its own terms for what each part 
actually is. He wrote memos when he worked for the Justice 
Department. He has written judicial opinions while on the 
appeals court. He wrote answers to the questionnaire from this 
Committee in 1990 and again last year. He has written articles 
and given speeches. He has joined certain groups, and each of 
these is different. Each of these must be considered in its own 
context, on its own terms, rather than squeezed, twisted, and 
distorted into something designed instead to support a 
preconceived position or serve a preplanned agenda.
    The third rule we should follow is considering Judge 
Alito's entire record. Some interest groups focus on--some 
would say they obsess about--one recusal question, or they 
cherrypick from the thousands of cases in which Judge Alito 
participated and the hundreds of opinions he authored or 
joined. Or they look at the results that ignore the facts and 
the law in those cases.
    Judge Alito comes to us with a record that is long, broad, 
and deep. He deserves, and our constitutional duty requires, 
that we consider his entire record.
    Finally, and perhaps most important, we must apply a 
judicial rather than a political standard to the information 
before us, and we do have a lot of information. The record 
includes more than 360 opinions of all kinds--majority, 
concurring, and dissenting--written during his judicial tenure. 
We have more than 36,000 pages of additional material, 
including unpublished opinions, legal briefs, articles, 
speeches, and Department of Justice documents relating to his 
service in the Office of Legal Counsel and in the Solicitor 
General's office. We must apply a judicial, not a political, 
standard to this record. Asking a judicial nominee whose side 
you will be on in future cases is a political standard. 
Evaluating Judge Alito's record by asking those whose side he 
has been on in past cases is, again, a political standard.
    Scorecards are common in the political process, but they 
are inappropriate in the judicial process. The most important 
tools in the judicial confirmation process are not litmus paper 
and a calculator. Applying a proper judicial standard to Judge 
Alito's record means putting aside the scorecards and looking 
at how he does what judges are supposed to do, namely, settle 
legal disputes by applying already established law.
    A judicial standard means that a judicial decision can be 
entirely correct even when the result does not line up with our 
preferred political positions or cater to certain political 
interests. When he was here last fall, Chief Justice Roberts 
compared judges to umpires who apply rules they did not write 
and cannot change to the competition before them. We do not 
evaluate an umpire's performance based on which team won the 
game, but on how that umpire applied the rules inning after 
inning. We do not hire umpires by showing them the roster for 
the upcoming season and demanding to know which teams they will 
favor before those teams even take the field. Similarly, we 
should evaluate judges and judicial nominees based on the 
general process for applying the law to any legal disputes, not 
on the specific result in a particular case or dispute.
    The fact that Judge Alito is such a baseball fan gives me 
even more confidence that he knows the proper role of a judge. 
I know that there is a pitched battle going on outside the 
Senate, with dueling press conferences, television ads, e-mail, 
petition drives, and stacks of reports and press releases. The 
Senate can rise above that battle if we remember the proper 
role for the Senate and the proper role for judges. We can rise 
above that battle if we respect that judicial nominees are 
limited in what they may discuss. Take each part of Judge 
Alito's record on its own terms. Consider Judge Alito's entire 
record and apply a judicial rather than a political standard.
    Judge Alito, I know you. I have known you for a long time. 
You are a good man. You are an exceptional judge as well. I 
welcome you and your family to this Committee, and I hope that 
the days ahead will reflect more light than heat. We 
congratulate you that you are willing to go through this 
grueling process to represent your country on one of the three 
separated powers. It means so much to all of us, and I am 
grateful to personally know you as well as I do.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Hatch.
    Senator Kennedy?

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you, Mr. Chairman.
    Judge Alito, I join in welcoming you and your family to 
this Committee. I appreciated the opportunity to visit with you 
in my office a few weeks ago, and I was particularly impressed 
by your personal family story of how you were encouraged to do 
well and contribute to your community. And I also applaud your 
dedication to public service throughout your lifetime.
    Supreme Court nominations are an occasion to pause and 
reflect on the values that make our Nation strong, just, and 
fair. And we must determine whether a nominee has a 
demonstrated commitment to those basic values. Will a nominee 
embrace and uphold the essential meaning of the four words 
inscribed above the entrance of the Supreme Court Building, 
``Equal justice under law.''
    Justice Louis Powell spoke for all of us when he said, 
``Equal justice under law is perhaps the most inspiring idea of 
our society. It is one of the ends for which our entire legal 
system exists.''
    As we have seen from Justice O'Connor's example, even one 
Justice can profoundly alter the meaning of those words for our 
citizens. Even one Justice can deeply affect the rights and 
liberties of the American people. Even one Justice can advance 
or reverse the progress of our journey.
    So the question before us in these hearings is this: does 
Judge Alito's record hold true to the letter and the spirit of 
equal justice? Is he committed to the core values of our 
Constitution that are at the heart of our Nation's progress, 
and can he truly be evenhanded and fair in his decisions?
    In a way Judge Alito has faced this issue before as a 
nominee to the Court of Appeals. I had the privilege of 
chairing his confirmation hearing in 1990, and at that time he 
had practiced law for 14 years, but only represented one 
client, the U.S. Government. I asked whether he believed he 
could be impartial in deciding cases involving the Government, 
and in that hearing Judge Alito said on the record that the 
most important quality for a judge is open-mindedness to the 
arguments, and he promised the Committee that he would make a 
very conscious effort to be absolutely impartial. We took him 
at his word and overwhelmingly confirmed him to the Third 
Circuit Court of Appeals.
    We now have the record of Judge Alito's 15 years on the 
bench, and the benefit of some of his earlier writings that 
were not available 15 years ago, and I regret to say that the 
record troubles me deeply.
    In a era where the White House is abusing power, is 
excusing and authorizing torture and is spying on American 
citizens, I find Judge Alito's support for an all-powerful 
executive branch to be genuinely troubling. Under the 
President's spying program there are no checks and balances. 
There is no outside review of the legality of this brazen 
infringement on the civil rights and liberties of the American 
people. Undeterred by the public outcry, the President vows to 
continue spying on American citizens. Ultimately the courts 
will make the final judgment whether the White House has gone 
too far. Independent and impartial judges must assess the 
proper balance between protecting our liberties and protecting 
our national security.
    I am gravely concerned by Judge Alito's clear record of 
support for vast Presidential authority unchecked by the other 
two branches of Government. In decision after decision on the 
bench, he has excused abusive actions by the authorities that 
intrude on the personal privacy and freedoms of average 
Americans, and in his writings and speeches he has supported a 
level of overreaching Presidential power that, frankly, most 
Americans find disturbing and even frightening.
    In fact, it is extraordinary that each of the three 
individuals this President has nominated for the Supreme Court, 
Chief Justice Roberts, Harriet Miers and now Judge Alito, has 
served not only as a lawyer for the executive branch, but as a 
defendant of the most expansive view of Presidential authority. 
Perhaps that is why this President nominated them. But as 
Justice O'Connor stated, even a state of war is not a blank 
check for a President to do whatever he wants. The Supreme 
Court must serve as an independent check on abuses by the 
executive branch and a protector of our liberties, not a 
cheerleader for an imperial presidency.
    There are other areas of concern. In an era when too many 
Americans are losing their jobs or working for less, trying to 
make ends meet, in close cases Judge Alito has ruled the vast 
majority of the time against the claims of the individual 
citizens. He has acted instead in favor of Government, large 
corporations and other powerful interests. In a study by the 
well-respected expert, Professor Cass Sunstein of the 
University of Chicago Law School, Judge Alito was found to rule 
against the individual in 84 percent of his dissents. To put it 
plainly, average Americans have had a hard time getting a fair 
shake in his courtroom. In an era when America is still too 
divided by race and riches, Judge Alito has not written one 
single opinion on the merits in favor of a person of color 
alleging race discrimination on the job; in 15 years on the 
bench, not one.
    When I look at that record in light of the 1985 job 
application to the Reagan Justice Department, it is even more 
troubling. That document lays out an ideological agenda that 
highlights his pride in belonging to an alumni group at 
Princeton that opposed the admission of women and proposed to 
curb the admission of racial minorities. It proclaims his legal 
opinion that the Constitution does not protect the right of 
women to make their own reproductive decisions. It expresses 
outright hostility to the basic principle of one person, one 
vote, affirmed by the Supreme Court as essential to ensuring 
that all Americans have a voice in their Government. This 
application was not a youthful indiscretion. It was a document 
prepared by a mature, 35-year-old professional.
    Finally, many of us are concerned about conflicting 
statements that Judge Alito has made in response to questions 
from this Committee and others. As Chairman Specter has stated, 
this confirmation largely depends on the credibility of Judge 
Alito's statements to us, and we have questions. When asked 
about the ideological statements and specific legal opinions in 
his 1985 application, Judge Alito has dismissed those 
statements as just applying for a job.
    When he was before this Committee in 1990 applying for a 
job to the circuit, he promised under oath that he would recuse 
himself from cases involving Vanguard, the mutual fund company 
in which he had most of his investments. But as a judge he 
participated in a Vanguard case anyway, and has offered many 
conflicting reasons to explain why he broke his word. We need 
to get to the bottom of this matter to assure ourselves that 
what Judge Alito says in these hearings will not be just words, 
but pledges that guide him in the future if he is confirmed.
    Judges are appointed by and with the advice and consent of 
the Senate, and it is our duty to ask questions on great issues 
that matter to the American people and to speak for them. Many 
Republican Senators certainly demanded answers from Harriet 
Miers. We should expect no less from Judge Alito. There is not 
time for a double standard. If confirmed, Judge Alito could 
serve on the Court for a generation or more, and the decisions 
he will make as Justice will have a direct impact on the lives 
and liberties of our children, our grandchildren and even our 
great-grandchildren. We have only one chance to get it right, 
and a solemn obligation to do so.
    Judge Alito, I have serious questions to ask. I 
congratulate you on your nomination, and I look forward to your 
answers in these hearings.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. I have a much more positive view of Judge 
Alito.
    [Laughter.]
    Senator Grassley. I think the record will sustain my view. 
But first, Judge Alito, I welcome you and your proud family to 
the Committee, and congratulations on your nomination.
    I first want to remind all Americans who might be listening 
that the Senate has a very important responsibility to confirm 
only well-qualified individuals who will faithfully interpret 
the law and the Constitution. Confirmation should be limited to 
those individuals who will be fair, unbiased, devoted to 
addressing the facts in the law before them without imposing 
their own values and political beliefs when deciding cases. 
Nominees should not be expected to precommit to ruling on 
certain issues in a certain way, nor should Senators ask 
nominees to pledge to rule on cases in a particular way.
    If we fulfill our responsibility to the Constitution, the 
Supreme Court will be filled with superior legal minds who will 
pursue the one agenda that our Founding Fathers intended in 
writing the Constitution, justice rather than political or 
personal goals. The Supreme Court will then consists of 
individuals who meticulously apply the law and the Constitution 
regardless of whether the results they reach are popular or 
not. If we do our job right, the Supreme Court will not be made 
up of men and women who are on the side of the little guy or 
the big guy, rather the Supreme Court will be made up of men 
and women who are on the side of the law and the Constitution.
    From all accounts, Judge Alito has an impressive and 
extensive legal and judicial record, certainly one worthy of 
someone on the Supreme Court. Judge Alito excelled at top-notch 
schools, member of law review, clerked for a Federal judge. He 
also held important positions at the Department of Justice, 
Office of Legal Counsel, the Solicitor General's Office and was 
U.S. Attorney for New Jersey before being appointed to the 
Third Circuit.
    I want to remind the American people this nominee, Judge 
Alito, has been confirmed unanimously by the U.S. Senate, not 
once, but twice. This is a tremendous record of accomplishment 
in public service equal to any Supreme Court nominee that I 
have considered in the 25 years I have been on this Committee. 
Not only that, Judge Alito has a reputation for being an 
exceptional and honest judge devoted to the rule of law, as 
well as being a man of integrity.
    Judge Alito enjoys the support and respect of people who 
work with him, practice with him, and therefore, know him best. 
Example, 54 of Judge Alito's law clerks, Democrats, Republicans 
and Independents alike, signed a letter to the Committee that 
stated, ``We collectively were involved in thousands of cases 
and it never once appeared to us that Judge Alito has prejudged 
a case or ruled based on political ideology.'' Continuing to 
quote, ``It is our uniform experience that Judge Alito was 
guided by his profound respect for the Constitution and the 
limited role of the judicial branch.'' Those 54 opinions say a 
lot about Judge Alito and his approach to judicial function. 
Like Chief Justice Roberts, it appears that Judge Alito tries 
to act like an umpire, calling the balls and strikes, rather 
than advocating a particular outcome.
    I am also impressed with the very complimentary things that 
some lawyers have had to say about Judge Alito in the Lawyers 
Evaluation Section of the Almanac of Federal Judiciary. With 
respect to his legal ability, lawyers praised him, saying that 
Judge Alito was ``exceptional,'' ``a brilliant jurist.'' 
Another lawyer stated that, ``to say that he is outstanding is 
to use understatement. He's the best judge on the circuit, 
maybe in the country.''
    With respect to his demeanor and temperament, lawyers found 
Judge Alito to be measured and judicial while on the bench. One 
lawyer commented that he is demanding, but always courteous. He 
may occasionally, quoting, ``demonstrate a little bit of 
impatience with lawyers that aren't quite getting it. This can 
be directed at either side. It's just a sign that his mind is 
working more efficiently than yours. He's never discourteous, 
never abusive.'' Another lawyer said, ``He is pleasant and 
courteous.'' Others commented about the impression that Judge 
Alito is a conservative judge, but certainly not out to impose 
his own personal agenda while on the bench. One lawyer 
commented that he ``is a conservative, but reaches honest 
decisions,'' while another said, ``By reputation he's known to 
be one of the more conservative judges on the court, but he is 
forthright and fair. He tries to decide cases in front of him 
in the right way.''
    The American Bar Association came out just last week with 
an evaluation of Judge Alito to be a Justice, and they 
considered things like integrity, judgment, compassion, open-
mindedness and freedom from bias and commitment to equal 
justice under the law. The ABA once again found Judge Alito to 
be unanimously well qualified. This recommendation should have 
much weight for my colleagues on the other side, who have time 
and time again described the rating of the ABA as, quote, 
``gold standard.'' Yet, some liberal interest groups have come 
out in full force and have attempted to paint Judge Alito to be 
an extremist and to be an activist. They have criticized a 
nominee who has, from what I see described by these lawyers and 
fellow judges, a reputation of being a restrained jurist 
committed to the rule of law and the Constitution, but that is 
what these outside-the-mainstream groups always do.
    They attack individuals who they believe will not implement 
their agenda before the Supreme Court, so Judge Alito should 
see criticism as a badge of honor worn by many past and present 
members of the Court. Yet, I am glad to see the public fully 
participate in this process because this is the nature of our 
system of Government, but I do not like to see facts twisted, 
untruths fabricated to give the nominee a black eye even before 
he comes before our Committee.
    So, Judge Alito, now you have that opportunity to set 
everyone straight on your record and your approach to deciding 
cases. These hearings are also an opportunity, a very good 
opportunity to remind the public about the proper role of a 
judge in our system of checks and balances limited Government. 
Judges are required by our democratic system not to overstep 
their positions to become policymakers or super legislators. 
Supreme Court nominees should know, without any doubt, that 
their job is not to impose their own personal opinions of what 
is right and wrong, but to say what the law is, rather than 
what they personally think the law ought to be. Supreme Court 
nominees should know that this exercise of judicial restraint 
is a key ingredient of being a good judge, as the Constitution 
constrains judges every bit as it constrains we legislators, 
executives and citizens in their actions.
    Moreover, Supreme Court nominees should be individuals who 
not only understand but truly respect the equal roles and 
responsibilities of different branches of Government and our 
State Governments. As Alexander Hamilton said in Federalist No. 
78, ``The courts must decide the sense of the law, and if they 
should be disposed to exercise will instead of judgment, the 
consequences would be the substitution of their pleasure to 
that of the legislative body.'' Our Framers expected the 
judicial branch to be the least dangerous branch of Government.
    At our meeting in my office in November, I heard Judge 
Alito place emphasis on the limited role of the courts in our 
democratic society. He also reiterated this belief in a 
questionnaire he submitted to this Committee. So I have some 
idea of how Judge Alito approaches the law and views the role 
of a judge. I am hopeful that his commitment to judicial 
restraint and to confining decisions to the law and the 
Constitution will shine through in this hearing, and I believe 
it will, and I am hopeful that my colleagues will give Judge 
Alito a civil, a fair and a dignified process, as well as an up 
or down vote, because as always, the Constitution sets the 
standard: the President nominates, the Senate deliberates, and 
then we are obligated to give our advice and consent in an up 
or down vote.
    Judge Alito, I congratulate you.
    Chairman Specter. Thank you very much, Senator Grassley.
    Senator Biden.

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE 
                       STATE OF DELAWARE

    Senator Biden. Thank you, Mr. Chairman.
    Judge, welcome. Mrs. Alito and your family, welcome. It is 
an incredible honor to be nominated by a President of the 
United States to be an Associate Justice of the Supreme Court, 
and you are to be congratulated.
    Judge, this may be one of the most significant, 
consequential nominations that the Senate will vote on since I 
have been here in the last three decades. I think history has 
delivered you, fortunately or unfortunately, to a moment where 
Supreme Court historians far into the future are going to look 
back on this nomination and make a judgment whether or not with 
your nomination, and if you are confirmed, whether the 
jurisprudence of the Supreme Court begin to change from the 
consensus that existed the last 70 years, or whether it 
continued on the same path it has over the past six or seven 
decades, and that moment is right now.
    Lest we think it is kind of like we all go through this 
process--and I like the phrase ``minuet'' that the Chairman 
used--we all act like there is not an elephant in the room. The 
truth of the matter is, there is significant debate among 
judicial scholars today as to whether or not we have gone off 
on the wrong path with regard to Supreme Court decisions. There 
is a very significant dispute that has existed in 5-4 decisions 
over the past two decades in a Court that is very closely 
divided on the critical, central issues of the day.
    Just to make it clear, I am puzzled by some of the things 
you have said, and I am sure you are going to get a chance to 
tell me what you meant by some of the things you wrote and 
said, but when in your job application you talked about being 
proud, as you should be, to be proud of your subscription to 
and adhering to notions put forward in the National Review that 
you are a proud member of the Federalist Society, the National 
Conservative Political Action Committee, the American Spectator 
is something you look to, et cetera. These are all really very 
bright folks. They all have a very decided opinion on the 
issues of the day--very decided. And those very organizations I 
have named think, for example, we misread the Fifth Amendment 
and have been misreading it for the past three decades. Those 
same groups argue that, in fact, there is no right of privacy 
in the Constitution, et cetera. So people are not making this 
up. In a sense, it is not about you. You find yourself in the 
middle of one of the most significant national debates in 
modern constitutional history because you have been nominated 
to replace a woman, in addition, who has been the deciding vote 
on a significant number of these cases. Since 1995 there have 
been 193 5-4 decisions, and Justice O'Connor 77 percent of the 
time has been the deciding vote. And for 70 years, there has 
been a consensus among scholars and the American people on a 
reading of the Constitution that protects the right of privacy, 
the autonomy of individuals, while at the same time empowering 
the Federal Government to protect the less powerful. Only 
recently has the debate come that States rights are being 
trumped in a fundamental way, a reading of the 10th Amendment 
and 11th Amendment. That is a legitimate debate. Totally 
legitimate. But anybody who pretends that how you read the 10th 
and 11th Amendment does not have a fundamental impact on the 
things we care about is kidding themselves. They are either 
uninformed or they are kidding themselves.
    So, Judge, there is a genuine struggle going on well beyond 
you, well beyond the Congress, in America about how to read the 
Constitution. And I believe at its core we have a Constitution, 
as our Supreme Court's first great Justice Marshall said in 
1819, and I quote, ``intended to endure for the ages to come 
and consequently to be adapted to the various crises of human 
affairs.'' That is the crux of the debate we are having now, 
whether it is an adaptable Constitution. A lot of my friends 
make very powerful and convincing arguments--and they may be 
right--that, no, no, no, no, no, it is not adaptable, it is not 
adaptable. And since our country's founding, we have tried to 
keep Government's heavy hand out of our personal lives while 
ensuring that we do the most important thing, which is to 
protect those who cannot protect themselves. And the debate 
raging today is about whether we will continue along that path 
and whether our courts will continue to be one of the places 
where society puts the little guy--and I know this is not 
something you are supposed to say--the little guy on the same 
footing with the big guy. The one place David is equal to 
Goliath is in the Supreme Court.
    It is also important to note that you are slated to replace 
the first woman ever nominated to the Supreme Court. We can 
pretend that is not the fact, but it is. And through no fault 
of your own, we are cutting the number of women in half on the 
Court. And now, as I said, that is not your fault, but I think 
it means that we have to take, at least speaking for myself, a 
closer look at your stands on issues that are important to 
women. And, moreover, Justice O'Connor brought critical 
qualities to the High Court that not everybody thinks are 
qualities--I happen to think they are--her pragmatism and her 
statecraft. Not that I have always agreed with what she said, 
far from it, but Justice O'Connor has been properly lauded in 
my view as a judge who approached her duties with open-
mindedness and with a sensitivity to the effects her decisions 
would have on everyday, ordinary people. She, unlike Judge 
Bork, did not think that being on the Court would be ``an 
intellectual feast,'' to quote Judge Bork. Justice O'Connor 
also brought balance to our highest Court. Most recently, as 
has been repeated many times, she cautioned about war does not 
give a blank check. Her decisions reflect, in my view, that our 
societies work very hard to improve the workaday world, to open 
doors to workers confronted by powerful employers and for women 
facing harassment and stereotypes.
    Now, I acknowledge this is a very tough job a judge has in 
determining whether or not there is an openness that is 
required under the Constitution. But I also acknowledge that 
prejudice runs very deep in our society, and in the real world, 
discrimination rears its ugly head in the shadows where it is 
very difficult to root it out. But Justice O'Connor was not 
afraid to go into the shadows.
    The Constitution provides for one democratic moment, Judge, 
before a lifetime of judicial independence when the people of 
the United States are entitled to know as much as we can about 
the person that we are about to entrust with safeguarding our 
future and the future of our kids. And, Judge, simply put, that 
is this moment, the one democratic moment in a lifetime of 
absolute judicial independence. And that is what these hearings 
are about, in my view.
    In the coming days, we want to know about what you believe, 
Judge, how you view the Constitution, how you envision the role 
of the Federal courts, what kind of Justice you would seek to 
become. As I said, this one democratic moment when the people, 
through their elected representatives, get to ask questions of 
a President's choice for the highest Court. And I hope you will 
be forthcoming.
    I cannot imagine, notwithstanding what many of my 
colleagues, whom I have great respect for, believe, I can't 
imagine the Founders, when they sat down and wrote the document 
and got to the Appointments Clause and said, You know what? The 
American people are entitled to know before we make him 
President, before we make her Senator, before we make him 
Congressman, what they believe on the major issues of the day. 
But judges, Supreme Court nominees, as long as they are smart 
and honest and decent, it really does not matter what they 
think. We do not have to know. I can't fathom--can't fathom--
that that was the intent of the Founders. They intended the 
American people to know what their nominees thought.
    And I might add--and I will end with this--we just had two 
Supreme Court Justices before our caucus just as they were 
before, I think, the Republican Caucus. They ventured opinions 
on everything. On everything, things that are going to come 
before the Court. It did not in any way jeopardize their 
judicial independence.
    So, Judge, I really hope that this does not turn out to be 
a minuet. I hope it turns out to be a conversation. I believe 
we--you and I and this Committee--owe it to the American people 
in this one democratic moment to have a conversation about the 
issues that will affect their lives profoundly. They are 
entitled to know what you think.
    And I remind my colleagues, many of whom are on this 
Committee, they sure wanted to know what Harriet Miers thought 
about everything. They sure wanted to know in great detail. 
They were about ready to administer blood tests. The good news 
is no blood test here. The good news is no blood test, just a 
conversation, and I hope you will engage in it with us because 
I am anxious to get a sense of how you are going to approach 
these big issues.
    I thank you very much, Judge.
    Chairman Specter. Thank you, Senator Biden.
    Senator Kyl?

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman.
    Welcome, Judge Alito, to your confirmation hearing. At the 
outset, I am pleased to note that you have more judicial 
experience than any Supreme Court nominee in more than 70 
years. Indeed, only one Supreme Court Justice in history, one 
Horace Lurton, nominated by President Taft, had more Federal 
appeals court experience. Moreover, you have devoted virtually 
your entire professional life to public service, and the Nation 
owes you gratitude for that service. I look forward to a 
dignified hearing followed by a fair up or down vote on the 
Senate floor.
    Before discussing your nomination, I would like to take a 
moment to express my respect and admiration for the Justice 
whom you are nominated to replace, my fellow Arizonan Sandra 
Day O'Connor, whom I have known for more than 30 years. Justice 
O'Connor has served with great distinction during her career in 
the Arizona Legislature, on the Arizona Court of Appeals, and 
for what has been a quarter of a century on the U.S. Supreme 
Court. Arizonans are deeply proud of Justice O'Connor's service 
to this country. She will always be remembered by Arizonans and 
all Americans as an extraordinary public servant.
    Judge Alito, I would like to discuss your background and 
experience in the context of other Justices on the Supreme 
Court so that everyone understands how well you satisfy what we 
have come to expect from our top judges. Like all the sitting 
Justices, you had an outstanding education. One of your 
classmates at Yale Law School, Tony Kronman, who later went on 
to be the dean of the law school and could, I believe, fairly 
be described as a political liberal, has recently remarked, and 
I quote, ``He impressed me''--speaking of you--``as being more 
interested in the technical, intellectual challenges of the law 
and its legal reasoning than its political uses or 
ramifications.'' Thus, even in your early 20's, it appears you 
were focused on the law as an independent pursuit rather than 
using law to influence political ends.
    With your intellect and education, you could have become a 
wealthy attorney, but instead you devoted virtually all of your 
legal career to the public service. In doing so, you meet, and 
even exceed, the stellar examples set by Justices Thomas and 
Souter, each of whom devoted most of their pre-judicial careers 
to public service. Perhaps this is because, like Justices 
Ginsburg and Scalia, you had a father who was an immigrant to 
this Nation. It seems that immigrants often have a special 
understanding of the incredible opportunities that this Nation 
affords its citizens. Moreover, your father's long service to 
the people of New Jersey both as a schoolteacher and as a civil 
servant in the State legislature plainly served as a model for 
you.
    I also note that you served in the U.S. Army Reserves from 
1972 until 1980. If confirmed, only you and Justice Stevens 
would have any military experience. You would also be the first 
Supreme Court Justice to have served in the Army Reserves since 
Justice Frank Murphy did so during World War II.
    You have spent much of your career as a Federal prosecutor 
pursuing terrorists, mob kingpins, drug dealers, and others who 
threaten our safety and our security. Justice Souter had a 
distinguished career as a State prosecutor, but no sitting 
Justice has served as a Federal prosecutor. Again, this 
experience could prove helpful given that approximately 40 
percent of the Supreme Court docket involves criminal matters.
    You also served as an attorney in the executive branch. 
Like Chief Justice Roberts, you served in the Solicitor 
General's office representing our Government before the Supreme 
Court. And like Justice Scalia, you served in the Office of 
Legal Counsel, providing constitutional advice to the President 
and the rest of the executive branch. In both of these roles, 
your job was to advance the policies of a President who twice 
won an electoral college landslide. He set the agenda, and you 
helped him implement it.
    Similarly, Justice Thomas served Presidents Reagan and Bush 
in political/legal capacities, and Justice Breyer also worked 
in political jobs, both in President Johnson's Justice 
Department and as a lawyer to this Committee.
    I note that you were just 39 when nominated to serve on the 
Third Circuit. Justice Kennedy was only 38 when nominated to 
the Ninth Circuit, and Justice Breyer only 42 when nominated to 
the First Circuit. Like them, you now have a great deal of 
hands-on experience that you can bring to the Court for years 
to come.
    During your judicial service, you amassed an impressive 
record for the Senate to review, including more than 350 
authored opinions. It is this judicial record that should be 
the focus of this Committee, just as it was with all of the 
other sitting Justices on the Court. It appears to me that you 
easily fit into the mold of what this Nation has come to expect 
from a Supreme Court Justice: a first-rate intellect, 
demonstrated academic excellence, a life of engagement with 
serious constitutional analysis, and a reputation for fair-
mindedness and modesty. These are the standards for a Supreme 
Court Justice, and you plainly meet these expectations. As a 
consequence, I view your nomination with a heavy presumption in 
favor of confirmation. Before I conclude, I would like, though, 
to address two other points.
    First, some of my colleagues are fond of asking the 
question, Which side are you on? You have heard that today. 
Politicians must pick sides regularly, every time they vote, so 
it is perhaps natural that they see the world as a battle 
between competing groups. But it is wholly inappropriate as an 
approach to the judicial role. The only relevant side is that 
of the law and the Constitution. We do great injury to the 
integrity of the court system when we start speaking of sides 
and stop devoting ourselves to the pursuit of impartial 
justice.
    During Chief Justice Roberts's confirmation hearings, I was 
struck by the way he answered the question. Then Judge Roberts 
explained that he had been asked earlier in the confirmation 
process, Are you going to be on the side of the little guy? 
Roberts explained that this question troubled him, and this is 
how he answered. He said, ``If the Constitution says that the 
little guy should win, the little guy is going to win. But if 
the Constitution says that the big guy should win, well, then 
the big guy is going to win because my obligation is to the 
Constitution. That's the oath. The oath that a judge takes is 
not that I will look out for particular interests. The oath is 
to uphold the Constitution and the laws of the United States.'' 
And this is the essence of justice. Our courts provide a 
neutral forum for the adjudication of disputes under the law, 
not based on economic or political power, on race, on sex, or 
any other personal characteristics. Big guy, little guy--it 
should make no difference. The rule of law demands neutrality.
    Second, I want to address the proper scope of questioning 
during these hearings, a matter that has also come up already. 
As I reminded Chief Justice Roberts at his hearings, the 
American Bar Association Model Code of Judicial Conduct 
dictates that, and I quote, ``a judge or candidate for election 
or appointment to judicial office shall not, with respect to 
cases, controversies, or issues that are likely to come before 
the court, make pledges, promises, or commitments that are 
inconsistent with the impartial performance of the adjudicative 
duties of the office.'' In other words, no judicial nominee 
should answer any question that is designed to reveal how the 
nominee will rule on any issue that could come before the 
Court. This rule has come to be known as ``the Ginsburg 
standard'' because Justice Ginsburg stated during her own 
confirmation hearings that she would give no forecasts, no 
hints about how she would rule on issues. And I was pleased to 
see that Chief Justice Roberts refused to prejudge issues or 
make promises in exchange for confirmation votes. We are all 
better off because of his principled stand.
    Soon after his confirmation, Justice Ginsburg was asked 
about this Ginsburg standard as applied to the Roberts 
hearings, and she said, ``Judge Roberts was unquestionably 
right. My rule was I will not answer a question that attempts 
to project how I will rule in a case that might come before the 
Court.'' In other words, Justice Ginsburg reaffirmed the 
Ginsburg standard.
    In light of the Chief Justice's confirmation hearings and 
Justice Ginsburg's later remarks, I asked my colleagues for 
basic fair play. Apply the same standards to Judge Alito that 
we applied to John Roberts, Stephen Breyer, Ruth Bader 
Ginsburg, and all of the other sitting Justices. Let's not 
invent a new standard for Judge Alito or change the rules in 
the middle of the game. Politicians must let voters know what 
they think about issues before the election. Judges should not.
    And it is not a hypothetical matter. Senator Kennedy in his 
opening statement expressed concern about the extent of the 
executive branch's authority to conduct surveillance of 
terrorists and said ultimately the courts will decide whether 
the President has gone too far. Indeed they will.
    Judge Alito, I will tell you the same thing I told John 
Roberts. I expect you to adhere to the Code of Judicial 
Conduct, and I want you to know that I will strongly defend 
your refusal to give any indication of how you might rule on 
any matter that might come before you as a judge or to answer 
any question that you believe to be improper under the 
circumstances. Congratulations, Judge Alito, on your 
nomination.
    Chairman Specter. Thank you, Senator Kyl.
    Senator Kohl?

 STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE 
                          OF WISCONSIN

    Senator Kohl. Thank you, Mr. Chairman.
    Judge Alito, let me also send my welcome to you this 
afternoon and to your family. You are to be congratulated on 
your nomination.
    Through its interpretation of the Constitution, the Supreme 
Court hugely shapes the fabric of our society for us and for 
future generations. Over the course of more than 200 years, it 
has found a right to equal education regardless of race. It has 
guaranteed an attorney and a fair trial to all Americans, rich 
and poor alike. It has allowed women to keep private medical 
decisions private. And it has allowed Americans to speak, vote, 
and worship without interference from their Government.
    Through these decisions and many more, the judicial branch 
has in its finest hours stood firmly on the side of individuals 
against those who would trample their rights. In the words of 
Justice Black, ``The courts stand against any winds that blow 
as havens of refuge for those who might otherwise suffer 
because they are helpless, weak, outnumbered, or because they 
are nonconforming victims of prejudice or public excitement.''
    As the guardian of our rights, the Supreme Court makes 
decisions every year which either protect the individual or 
leave him at the mercy of more powerful forces in our society. 
They consider questions like when can a disabled individual sue 
to gain access to a courthouse, when can a parent leave work to 
care for a sick child, when should the Government be allowed to 
listen to a private conversation, and when will the courthouse 
doors open or close to an employee suffering discrimination at 
work.
    Whether interpreting the Constitution or filling in the 
blanks of a law or a regulation, every word of the Court's 
opinion can widen or narrow our rights as Americans and either 
protect us or leave us more vulnerable to any winds that blow. 
If confirmed, you will write the words that will either broaden 
or narrow our rights for the rest of your working life. You 
will be interpreting the Constitution in which we as a people 
place our faith and on which our freedoms as a Nation rest. And 
on a daily basis, the words of your opinions will affect 
countless individuals as they seek protection behind the 
courthouse doors.
    Despite your enormous power, you will be free of all 
constraints, unaccountable and unrecallable. We give Supreme 
Court Justices this freedom because we expect them to remain 
above the pull of politics, to avoid the effects of public 
excitement and allow a broader view, not tied to the whims of 
the majority at a certain moment in the history. So for only a 
short time this month will the people through their Senators be 
able to question and to judge you. In short, before we give you 
the keys to the car, we would like to know where you plan to 
take us.
    To a certain extent, we know more about what is in your 
heart and in your mind than we did with now Justice Roberts. 
You have a long track record as a judge and as a public 
official in the Justice Department. When we met privately and I 
asked you what sort of Supreme Court Justice you would make, 
your answer was fair when you said, ``If you want to know what 
sort of a Justice I would make, then look at what sort of a 
judge I have been.''
    Taking this advice, your critics argue that your judicial 
record demonstrates that you will not sufficiently protect the 
individual, but will instead side with more powerful interests, 
narrow the rights we enjoy, and leave individual Americans more 
vulnerable to abuse. For example, they cite your Casey dissent 
as diminishing the power of married women over their own 
bodies. They identify your decision in the Chittister case as 
evidence that you will make it harder for working people to 
care for a family. They cite the Bray case and others where you 
often side with corporations to block the victims of 
discrimination from getting their day in court. Others raise 
concerns about your views on the rights of the accused when 
faced with the Government's enormous power in the criminal 
justice process.
    In addition to your record on the bench, your opponents 
identify memos you wrote while in the Justice Department as 
further evidence of your hostility to individual rights. For 
example, in your now famous 1985 job application, you expressed 
pride in some of the work you did in the Solicitor General's 
office. You chose to single out the assistance that you 
provided in crafting Supreme Court briefs urging that ``the 
Constitution does not protect a right to an abortion.'' While 
these statements came in the context of your work on behalf of 
the Reagan administration, they were, nevertheless, your self-
proclaimed personal views.
    In the same job application, you wrote that you had pursued 
a legal career because you disagreed with many of the decisions 
of the Warren Court, especially, and I quote, ``in the areas of 
criminal procedure, the Establishment Clause, and 
reapportionment.'' These Warren Court decisions establishing 
one person/one vote, Miranda rights, and protections for 
religious minorities are some of the most important cases 
protecting our rights and our liberties, protecting minorities 
against majority abuses and protecting individuals against 
Government abuses, and yet antagonism toward these decisions 
seems to have motivated your pursuit of the law.
    Your supporters, on the other hand, contend that it is not 
fair to select a few specific cases in light of a career as a 
judge spanning 15 years. Further, they dismiss some of your 
early memos in the Justice Department as old and not 
particularly relevant. They argue that you are well within the 
mainstream of judges, especially Republican-appointed judges.
    So it is our job to sort out the truth about your record, 
separate the rhetoric from the reality, and decide where you 
will lead the country. We will need to examine whether, as your 
critics contend, you will consistently side against the 
individual or whether, as your supporters contend, you are a 
mainstream conservative who will fairly decide all cases. I 
hope these hearings will add to our record in making this 
critical determination.
    This would be an appropriate time to share my perspective 
on how we will judge the nominee. We have used the same test 
for each of the five previous Supreme Court nomination 
hearings: a test of judicial excellence. Judicial excellence, 
it seems to me, involves at least four elements:
    First, a nominee must possess the competence, character, 
and temperament to serve on the bench.
    Second, judicial excellence means that a Supreme Court 
Justice must have a sense of the values from which the core of 
our political and economic system goes. In other words, we 
should not approve any nominee whose extreme judicial 
philosophy would undermine rights and liberties relied upon by 
all Americans.
    Third, judicial excellence requires an understanding that 
the law is more than an intellectual game and more than a 
mental exercise. He or she must recognize that real people with 
real problems are affected by the decisions rendered by the 
Court. Justice, after all, may be blind, but it should not be 
deaf.
    And, finally, judicial excellence requires candor before 
confirmation. We are being asked to give the nominee enormous 
power, and so we want to know what is in your mind and in your 
heart.
    Judge Alito, we are convinced that your intellect and 
experience qualifies you for this position. I enjoyed meeting 
you a few weeks ago and appreciated our discussion. Your legal 
talents are undeniably impressive, and your opinions are 
thoughtful and well reasoned. We are now familiar with your 
abilities in your long tenure as a judge. And yet we do not 
know whether the concerns some have raised about your judicial 
philosophy are overstated or whether we need to have serious 
doubts about your nomination. I look forward to these hearings 
as an opportunity to learn more and measure whether you meet 
our test of judicial excellence.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kohl.
    Senator DeWine.

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Thank you, Mr. Chairman.
    Judge Alito, I want to welcome you and your family, 
appreciate you being here with us today.
    The Constitution gives the Senate a solemn duty, a solemn 
duty when it comes to the nomination of any individual to sit 
on the U.S. Supreme Court. While the President is to nominate 
that individual, we in the Senate must provide our advice and 
consent. This function is not well defined. The Constitution 
does not set down a road map. It does not require hearings. In 
fact, it does not even require questioning on your 
understanding of the Constitution or the role of the Supreme 
Court.
    To me, however, these things are certainly important. The 
reason is obvious. When it comes to the Supreme Court, the 
American people have only two times when they have any input 
into how our Constitution is interpreted and who will have the 
privilege to do so. First, we elect a President who has the 
power to nominate Justices to the Supreme Court. Second, the 
people, acting through their representatives in the Senate, 
have their say on whether the President's nominee should in 
fact be confirmed.
    Judge Alito, I want to use our time together today to make 
a point about democracy. When it comes to our Constitution, 
judges perform certainly an important role. But the people, 
acting through their elected representatives, should play an 
even more important role. After all, our Constitution was 
intended as a popular document. It was drafted and ratified by 
the people. It established democratic institutions. It entrusts 
the people with the power to make the tough decisions. In most 
cases, it prefers the will of the people to the unchecked rule 
of judges. If confirmed, Judge, you should always keep this in 
mind.
    In my opinion, Chief Justice Roberts put it best during his 
recent confirmation hearings, when he said, and I quote, ``The 
Framers were not the sort of people, having fought a 
revolution, having fought a revolution to get the right of self 
government, to sit down and say, well, let's take all the 
difficult issues before us, let's have the judges decide them. 
That would have been the farthest thing from their mind,'' end 
of quote.
    Sometimes, Judge, however, I fear that the Supreme Court 
forgets this advice. In the last 15 years, in fact, the Court 
has struck down, in whole or in part, more than 35 acts of this 
Congress, and nearly 60 State and local laws. Without question, 
the Court does play a vital role in our constitutional system. 
Sometimes local, State, and Federal law so clearly run afoul of 
the Constitution, that the Court must step in and strike them 
down.
    In most cases, the Court performs this admirably and with 
great restraint. In recent years, the Court has struck down 
some laws that, in my opinion, did not deserve such a fate. 
Take, for instance, the Americans with Disabilities Act; it 
passed this Congress with overwhelming bipartisan support. The 
law was supported by an extensive factual record, and it was 
based on our Government's longstanding constitutional power to 
fight discrimination wherever it exists. When the Court 
considered the ADA in the Garrett case, however, it ignored the 
Act's broad support, cast aside the legislative record, and 
struck down a portion of the law. The decision was a close one, 
5-4. The majority relied on a highly controversial legal 
theory, and the case evoked a vigorous dissent.
    This is precisely my problem with Garrett. In such a 
difficult case where the Constitution does not clearly support 
the majority's decision, the proper response is not to strike 
down the law. In such a case, the Court should defer to the 
will of the people. In other ways, Judge, the Court's recent 
decisions have made life more difficult for the democratic 
institutions that perform the day-to-day work of our Nation, 
recent cases involving affirmative action and the posting of 
the Ten Commandments on public property, which seem to me at 
least to prove the point. The Court has upheld one affirmative 
action program at the University of Michigan, but struck down 
another one, and has allowed the posting of the Ten 
Commandments outside of a public building, but banned it on the 
inside in another case.
    To add to the confusion, some of the Court's decisions 
involve multiple concurrences and dissents, making it hard, 
even for lawyers and judges to figure out what the law is and 
why.
    Chief Justice Roberts mentioned this problem at his 
hearing. And in one of his final statements as Chief Justice, 
William Rehnquist noted that one of the Court's decisions had 
so many opinions within it that he--and I quote--``didn't know 
we had so many Justices on the Court.''
    What has emerged in certain areas, therefore, is a 
patchwork, a patchwork that leaves local officials, State 
legislators, Members of Congress and the public guessing what 
the law permits and what it does not. In 1937, President 
Franklin Roosevelt reminded us that the Constitution is, and I 
quote, ``a layman's document, not a lawyer's contract.'' But 
that very document does little to serve people when Supreme 
Court decisions are written so that even high-price lawyers 
cannot figure them out.
    I am not the first to raise these democratic concerns. Many 
have faulted the Court for its lack of clarity in certain cases 
and many have criticized its recent lack of deference to 
decisions made by State legislatures and Congress. In fact, 
some have even suggested that this recent trend has transformed 
our democracy from one founded on ``we, the people,'' to one 
ruled by ``we, the Court.'' To me, the criticism has some 
force. The Constitution empowers the people to resolve our 
days' most contentious issues. When judges forget this basic 
truth, they do a disservice to our democracy and to our 
Constitution. Judges are not Members of Congress. They are not 
State legislators, Governors, nor Presidents. Their job is not 
to pass laws, implement regulations, nor to make policy. To use 
the words of Justice Byron White, words that I quoted at our 
last Supreme Court hearing: the role of the judge is simply to 
decide cases; to decide cases, nothing more.
    Judge, from what I have seen so far, you do not need much 
reminding on this score. Your decisions are usually brief and 
to the point. You write with clarity and common sense, and in 
most cases you defer to the decisionmaking of those closest to 
the problem at hand. I do not expect to agree with every case 
that you decide, but your modest approach to judging seems to 
bode well for our democracy.
    Over the next several days the members of this Committee 
will question you to find out what kind of Justice you will be. 
This hearing is really our opportunity to try to answer that 
question. Our constitutional system is founded on democracy, a 
world of people, not the unchecked rule of judges. If 
confirmed, it will be your job to faithfully interpret our 
Constitution and to defend our democracy case by case. I wish 
you well.
    Thank you.
    Chairman Specter. Thank you, Senator DeWine.
    Senator Feinstein.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman.
    Welcome, Judge Alito. I am one that believes your 
appointment to the Supreme Court is the pivotal appointment, 
and because you replace Sandra Day O'Connor and because she was 
the fifth vote on 148 cases, you well could be a very key and 
decisive vote. So during these hearings, I think it is fair for 
us to try to determine whether your legal reasoning is within 
the mainstream of American legal thought and whether you are 
going to follow the law regardless of your personal views about 
the law.
    Since you have provided personal and legal opinions in the 
past, I very much hope that you will be straightforward with 
us, share your thinking, and share your legal reasoning.
    I would like to use my time to discuss with you some of my 
concerns. I have very deep concern about the legacy of the 
Rehnquist Court and its efforts to restrict congressional 
authority to enact legislation by adopting a very narrow view 
of several provisions of the Constitution, including the 
Commerce Clause and the 14th Amendment. This trend, I believe, 
if continued, would restrict and could even prevent the 
Congress from addressing major environmental and social issues 
of the future.
    As I see it, certain of your decisions on the Third Circuit 
raise questions about whether you would continue to advance the 
Rehnquist Court's limited view of congressional authority, and 
I hope to clear that up.
    Let me give you one example here, and that is the Rybar 
case. Your dissent argued that Congress lacked the authority to 
ban the possession and transfer of machine guns based 
essentially on a technicality. The congressional findings from 
previous statutes were not explicitly incorporated in the 
legislation. You took this position even though the Supreme 
Court had made clear in 1939, the Miller case, that Congress 
did have the authority to ban the possession and transfer of 
firearms, and even though Congress had passed three Federal 
statutes that extensively documented the impact that guns and 
gun violence have on interstate commerce. I am concerned that 
your Rybar opinion demonstrates a willingness to strike down 
laws with which you personally may disagree by employing a 
narrow reading of Congress's constitutional authority to enact 
legislation.
    The subject of Executive power has come up, and indeed it 
is a very big one. I think we are all concerned about how you 
approach and decide cases involving expanded Presidential 
powers. Recently there have been several actions taken by the 
administration that highlight why the constitutional checks and 
balances between the branches of Government are so essential. 
These include the use of torture, whether through an expansive 
reading of law, or disregarding Geneva Conventions, including 
the Convention on Torture, whether the President is bound by 
ratified treaties or not, allowing the detention of American 
citizens without providing due process--of course, Sandra Day 
O'Connor was dispositive in the Hamdi case--and whether the 
President can conduct electronic surveillance on Americans 
without a warrant despite legislation that establishes a court 
process for all electronic surveillance.
    I am also concerned with the impact you could have on 
women's rights, and specifically, a woman's right to choose. In 
the 33 years since Roe was decided, there have been 38 
occasions on which Roe has been taken up by the Court. The 
Court has not only declined to overrule Roe, but it has also 
explicitly reaffirmed its central holding. In our private 
meeting, when we spoke about Roe and precedent, you stated that 
you could not think of a case that has been reviewed or 
challenged more than Roe. You also stated that you believe that 
the Constitution does provide a right of privacy and that you 
have a deep respect for precedent.
    However, in 1985, you clearly stated that you believed Roe 
should be overturned and that the Constitution does not protect 
a woman's right to choose. So despite voting to sustain Roe on 
the Third Circuit, your opinions also raise questions about how 
you might rule if not bound by precedent, and of course, 
obviously, I would like to find that out.
    I am also concerned about the role the Court will play in 
protecting individual rights in this and the next century. 
Historically, the Court has been the forum to which individuals 
can turn when they believed their constitutional rights were 
violated. This has been especially noteworthy in the arena of 
civil rights, and as has been mentioned, in that same 1985 job 
application, you wrote that while in college you developed a 
deep interest in constitutional law, and then you said, 
motivated in part by disagreement with the Warren Court's 
decisions, particularly in the areas of criminal procedure, the 
Establishment Clause, and reapportionment. Now, of course, it 
was the Warren Court that brought us Brown v. Board of 
Education, and of course, reapportionment is the bedrock 
principle of ``one man, one vote.'' So exactly what you mean by 
this I think is necessary to clear up.
    Now, additionally, Justice O'Connor was a deciding vote on 
a critical affirmative action case involving the University of 
Michigan, Grutter v. Bollinger. So your views here may well be 
pivotal, so I think the American people deserve to know how you 
feel, how you think, how you would legally reason affirmative 
action legislation.
    When you served in the Solicitor General's Office during 
the Reagan administration, you argued in three cases against 
the constitutionality of affirmative action programs, then once 
on the Third Circuit, you sided against the individual alleging 
discrimination in about three-quarters of the cases before you.
    We have a lot to learn about what your views are and your 
legal reasoning, and how you would apply that legal reasoning. 
I really look forward to the questions, and once again, because 
this appointment is so important, I hope you really will be 
straightforward with us, and thereby be really straightforward 
with the American people.
    So thank you, and welcome.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman.
    I would like to also extend my congratulations to you, 
Judge Alito and your family. It is a very special day, a great 
honor to be nominated to the Supreme Court, the greatest court 
in the world, in my view, and this will be a good process. The 
Senate has an obligation to make a vigorous inquiry, and they 
will do so. I just hope and truly believe that by the end of 
these hearings your answers will be heard. The charges that I 
have heard made I know will be rebutted. People will listen and 
see the answers that you give, and when they do, they will feel 
great confidence in you as a member of the Supreme Court.
    You have a record as a brilliant but modest jurist, one who 
follows the law, who exercises restraint and does not use the 
bench as an opportunity to promote any personal or political 
agenda. This is exactly what I believe the American people want 
in a Justice to the Supreme Court. It is exactly what President 
Bush promised to nominate. You represent philosophically that 
kind of judge who shows restraint, but at the same time you 
bring extraordinary qualifications and abilities.
    As has been said, judges are not politicians. They must 
decide discrete cases before them based on the law and the 
facts of that case. They are not policymakers. Every lawyer 
that has practiced in America knows that. That is what they 
want in a judge. That is what I understand they believe you 
are. That is why the ABA has given you their top rating, in my 
view.
    This ideal of American law is the rule of law. It is the 
American ideal of justice, not to have an agenda, not to allow 
personal views to impact your decisionmaking, and I am real 
proud to see that your record indicates that.
    I like Judge Roberts's phrase of ``modesty.'' I believe 
that is your philosophy also. We had the opportunity for a time 
to serve as United States Attorneys together. You were the top 
prosecutor in the office in New Jersey, one of the largest in 
the country. You had the whole State, much larger than my 
office. I know your reputation as one of ability, but modesty. 
In fact, I remember distinctly somebody told me, ``Don't 
underestimate Sam Alito. He's a modest kind of guy, but he's 
probably the smartest guy in the Department of Justice.'' I 
think that is the reputation you had and one that you can be 
quite proud of.
    Your record of achievement is extraordinary. You were Phi 
Beta Kappa at Princeton and a Woodrow Wilson scholar. You 
attended Yale Law School. You were an editor of the law review, 
elected by your colleagues, and of course, for a graduating law 
student at a prestigious law school or any law school, being an 
editor of the law review is an extraordinary honor.
    You clerked for a Federal judge on the Third Circuit. You 
were an Assistant United States Attorney. You did appellate 
work, handling criminal cases, and as United States Attorney 
you were primarily a prosecutor. As I have checked the record, 
you will be the first person to serve on the Supreme Court 
since Tom Clark, who was appointed by Harry Truman in 1949, 
that had actual Federal prosecutorial experience, which I think 
is a great value. Matter of fact, I know it is a value. I have 
seen instances of Supreme Court rulings where errors have been 
made, mostly as a result of just not understanding the system 
and how it operates.
    As an Assistant Solicitor General you argued 12 cases 
before the Supreme Court. That is an extraordinary number. 
Very, very few people in our country have had the opportunity 
to do that. Very few lawyers will ever in their career do one 
case much less 12.
    So you did a great job, and I think that is why the ABA, 
the American Bar Association has rendered their views on you. 
It is a 15-member committee. All of them participate on a 
Supreme Court nominee. They take this very seriously. They 
interview judges with whom you work. They interview your 
colleagues. They interview people who litigated against you. 
They interview litigants who have lost before you as well as 
those who won before you, your co-counsel. And at the 
conclusion of all of that, they unanimously gave you their 
highest possible rating. I think that is an important thing. 
Some of us on our side of the aisle criticize the ABA. We say 
they tilt a little to the left, but their analysis process and 
the way they go about it provides valuable insight to this 
Committee and to the people of America, that the people of the 
country can know that they have interviewed a host of people 
who have dealt with you in every single area of your life, and 
they found you highly qualified, the best recommendation they 
can give, and that is something you should take great pride in.
    We do not want an activist judge. That is not what we want 
in this country. By ``activist'' I mean a judge who allows his 
personal views to overcome a commitment to faithfully following 
the law, following the law as it is, not as you would like it 
to be, good or bad, following that law. That is what we count 
on. When we violate that, we undermine law, we undermine 
respect for law, and endanger this magnificent heritage of law 
that we have been given. From what I understand your approach 
to law, you have it right, and your record indicates that.
    The judicial oath you take is important. Some might say you 
have to follow precedent and precedent is a very big part of 
what you do, but you take the oath to swear that you will 
support and defend the Constitution of the United States. You 
will take that oath if confirmed, and you have already taken it 
as a Third Circuit Judge. It is an oath not to decide whether a 
decision is good policy or not. That is for the legislative 
branch. It is not an oath to defend the wall that the Supreme 
Court has enclosed sometimes around itself. It is not an oath 
to avoid admitting error in previous decision. But let me be 
more direct. The oath you take is not an oath to uphold 
precedent whether that precedent is super duper or not. If you 
love the Constitution, which I hope you do, and I intend to 
inquire about that, you will enforce the Constitution as it is, 
good and bad. That is your responsibility in our democracy.
    We have already had this morning some matters that have 
been raised, and I think are worthy of just responding to 
briefly because allegations get made in these hearings, you may 
never get a chance by the time this hearing is over to rebut 
some of the things that have already been raised. Senator 
Kennedy claimed that you have not offered an opinion or a 
dissent siding with a claim of racial discrimination. I would 
point him to U.S. v. Kithcart. There you made it clear that the 
Constitution does not allow police officers to racially profile 
black drivers. A police officer received a report that two 
black males in a black sports car had committed three 
robberies. Later they pulled over a driver because he was a 
black man in a black sports car. You wrote that this violated 
the Fourth Amendment. You stated that the mere fact that 
Kithcart was black and the perpetrators had been described as 
two black males was plainly insufficient.
    They also may want to look at your majority opinion in 
Brinson v. Vaughn, where you rule that the Constitution does 
not allow prosecutors to exclude African-Americans from jurors, 
and you granted the petitioner's habeas petition in that case, 
reversing the conviction. You stated the Constitution 
guarantees, ``that a State does not use peremptory challenges 
of jurors to remove any black jurors because of his race, thus 
a prosecutor's decision to refrain from discriminating against 
some African-American voters does not cure discrimination 
against others.''
    As for dissents, you were the lone dissenter calling for an 
expansive interpretation of civil rights laws. Your dissent 
complained in an employer case that the majority had 
substituted its own opinion for the law, and you dissented, and 
later the Supreme Court vindicated you, 9-0.
    I would also note you were questioned about judicial 
independence. I think some of our people have mentioned that, 
but an academic study of Federal Appeals Court opinions rated 
you the fourth most independent judge in the Federal judiciary. 
That is out of 98. They took that based on issues such as 
whether or not you are most likely to disagree with judges or 
agree with judges of a different political party.
    Mr. Chairman, I thank you for your leadership, and look 
forward to a vigorous hearing. I am confident this nominee has 
the skills and graces to make an outstanding Supreme Court 
Justice.
    Chairman Specter. Thank you, Senator Sessions.
    We are going to turn to one more Senator, Senator Feingold, 
for an opening statement, and then we are going to take a 15-
minute break. We will have concluded the opening statements of 
12 of our 18 Judiciary Committee members. That will leave us 
four more. Then Senator Lautenberg and Governor Whitman to make 
the formal presentation of Judge Alito, and then Judge Alito's 
opening statement. At this time we will adjourn and we will 
reconvene at 2:10.
    Pardon me. We are going to proceed with you, Senator 
Feingold.
    [Laughter.]
    Senator Feingold. Thank you, Mr. Chairman, I think.
    Senator Leahy. This is called the potted plant routine, 
Russ.
    [Laughter.]
    Chairman Specter. I am so anxious for the recess, I jumped 
the gun a little.
    [Laughter.]

 STATEMENT OF SENATOR RUSSELL D. FEINGOLD, A U.S. SENATOR FROM 
                     THE STATE OF WISCONSIN

    Senator Feingold. Mr. Chairman, I too want to welcome our 
nominee and thank him in advance for the long hours that he 
will put in this week.
    Judge, I do greatly admire your legal qualifications, and 
of course, your record of public service, and I wish you well 
here. And as with the hearing and the nomination of Chief 
Justice Roberts, I approach this proceeding with an open mind.
    Judge Alito, I know that as a long-time student of the law 
in the Supreme Court, you appreciate the importance of the 
process that we begin today. A position on the Supreme Court is 
one of the highest honors and greatest responsibilities in our 
country. The Constitution requires the Senate to offer its 
advice and decide whether to grant its consent to your 
nomination, and the Senate has duly delegated to the Judiciary 
Committee the task of examining your record and hearing your 
testimony and responses to questions about your views.
    So it is our job in these hearings to try to get a sense 
for ourselves, for our colleagues who are not on the Committee, 
and for the American people, of whether you should be given the 
enormous responsibility of protecting our citizens' 
constitutional freedoms on the Supreme Court. So you will, 
obviously, face tough questions here, Judge.
    No one is entitled to a seat on the Supreme Court simply 
because he has been nominated by the President. I think the 
burden is actually on the nominee to demonstrate that he should 
be confirmed.
    We begin these hearings today at an important time. Less 
than a month ago we learned that this administration has for 
years been spying on American citizens without a court order 
and without following the laws passed by Congress. Americans 
are understandably asking each other whether our Government 
believes it is subject to the rule of law. Now more than ever 
we need a strong and independent judicial branch. We need 
judges who will stand up and tell the executive branch it is 
wrong when it ignores or distorts the laws passed by Congress. 
We need judges who see themselves as custodians of the rights 
and freedoms that the Constitution guarantees even when the 
President of the United States is telling the country that he 
should be able to decide unilaterally, unilaterally, how far 
these freedoms go.
    To win my support, Judge Alito will have to show that he is 
up to the challenge. His instincts sometimes seem to be to 
defer to the executive branch to minimize the ability of the 
courts to question the Executive in national security cases, to 
grant prosecutors whatever powers they seek, and to deny relief 
to those accused of crimes who assert that their constitutional 
rights were violated. So it will be up to Judge Alito to 
satisfy the Senate that he can be fair and objective in these 
kind of cases.
    We need judges on the bench who will ensure that the 
judicial branch of Government is the independent check on 
Executive power that the Constitution requires and that the 
American people expect.
    In these days of corruption investigations and indictments 
in Washington, we also need judges who are beyond ethical 
reproach. In 1990, when the judge appeared before this 
Committee in connection with this nomination to the Court of 
Appeals, Judge Alito promised to recuse himself from cases 
involving a mutual fund company with which he had substantial 
investments, Vanguard. He kept those investments throughout his 
service on the Court of Appeals and still has them today. But 
in 2002 he sat on a panel in a case involving Vanguard. Since 
his nomination to the Supreme Court, we have now heard 
different explanations from the nominee and his supporters 
about why he failed to recuse himself. Needless to say, the 
shifting explanations and justifications are somewhat 
troubling. I hope that we will get the full and final story in 
these hearings.
    Before we grant lifetime tenure to Federal judges, and 
particularly Justices of the Supreme Court, we must make sure 
that they have the highest ethical standards. The stakes for 
this nomination could hardly be higher. Justice O'Connor, as 
many have said, was the swing vote in many important decisions 
in the past decade. Her successor could well be the deciding 
vote in a number of cases that have already been argued this 
term, that may have to be reargued after a new Justice is 
confirmed. The outcome of these cases could shape our society 
for generations to come.
    Now, we do not have the right to know how a nominee would 
rule on those cases. Indeed, we should all hope that the 
nominee does not know either, but we do have a right to know 
what and how a nominee thinks about the important legal issues 
that have come to the Court in recent years. Commenting on past 
Supreme Court decisions, in my view, would no more disqualify a 
nominee from hearing a future case on a similar topic than 
would a current Justice participating in those past decisions. 
Mr. Chairman, it simply cannot be that the only person in 
America who cannot express an opinion on a case where Justice 
O'Connor cast the deciding vote, is the person who has been 
nominated to replace her on the Court.
    So I look forward to questioning you, Judge Alito, about 
Executive power, the death penalty, employment discrimination, 
criminal procedure and other important topics, and I look 
forward to your candid answers. I will have to say that I was 
rather pleased that the judge was actually less guarded in our 
private meeting, than were the other two Supreme Court nominees 
who I had had the privilege to meet. I hope he is even more 
forthcoming in this hearing.
    Given his long judicial record and the memos we have seen 
that express his personal views on legal issues, I expect 
complete answers, and I think my colleagues do too. If a 
nominee expresses a personal view on a legal issue in a memo 
written over a decade ago, I think we and the American people 
have the right to know if he still holds that view today.
    Mr. Chairman, if confirmed to the Supreme Court, Judge 
Alito is likely to have a profound impact on the lives of 
Americans for decades to come. That is a fact. It is clear, Mr. 
Chairman, from how you have planned these hearings, that you 
recognize that.
    Thank you for your efforts to ensure a full and fair 
evaluation of this nominee, and I not only look forward to the 
questioning, but I want to note that I have caused the recess 
to occur 3 minutes and 40 seconds earlier than it normally 
would have.
    [Laughter.]
    Chairman Specter. Thank you, Senator Feingold, for your 
brevity.
    We will now take a 15-minute recess until 2:15.
    [Recess from 2 p.m. to 2:15 p.m.]
    Chairman Specter. It is 2:15. We will resume these 
hearings. Next up on opening statement is Senator Graham.
    Senator Graham. Shall I wait or go ahead, Mr. Chairman?
    [Pause.]
    Chairman Specter. Senator Graham, you may begin.

 STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE 
                    STATE OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman, and welcome back, 
Judge. I would hate for you to miss my opening statement, a 
loss for the ages.
    Welcome to the Committee. Welcome to one of the most 
important events in your life. You have got the people that 
mean the most here with you today, your family, and I know they 
are proud of you, and I am certainly proud of what you have 
been able to accomplish.
    To say the least, you come to the Senate in interesting 
political times. There is going to be a lot of talk by the 
Senators of this Committee about concepts that are important to 
Americans, but what I worry the most about is your time, 
believe it or not, will come and go. You will not be here 
forever. It may seem that way, but I think you are going to be 
just fine.
    I don't know what kind of vote you are going to get, but 
you will make it through. It is possible you could talk me out 
of voting for you, but I doubt it. So I won't even try to 
challenge you along those lines. I feel very comfortable with 
you being on the Supreme Court based on what I know, and the 
hearings will be helpful to all of us to find out some issues 
that are important to us.
    We had a talk recently about Executive power. That is very 
important to me. In time of war, I want the executive branch to 
have the tools to protect me, my family and my country. But 
also I believe even during a time of war, the rule of law 
applies.
    I have got some problems with using a force resolution to 
the point that future Presidents may not be able to get a force 
resolution from Congress if you interpret it too broadly. And 
we will talk about those things and we will talk more about it.
    I am going to talk a little bit about some of the points my 
colleagues have been making. Everybody knows you are a 
conservative. The question is are you a mainstream 
conservative. Well, the question I have for my colleagues is 
who would you ask to find out. Would you ask Senator Kennedy? 
Probably not. If you asked me who a mainstream liberal is, I 
would be your worst person to pick because I don't hang out 
over there.
    I suspect that most all of us, if not all of us, will vote 
for you, and I would argue that we represent from the center 
line to the right ditch in our party and if all of us vote for 
you, you have got to be pretty mainstream. So the answer to the 
question, are you a mainstream conservative, will soon be know.
    If every Republican member of the Judiciary Committee votes 
for you and you are not mainstream, that means we are not 
mainstream. And it is a word that means what you want it to 
mean. Advise and consent means what? Whatever you want it to 
mean. Advise and consent means the process has got to work to 
the advantage of people I like, and with people I don't want on 
the Court, it is a different process. That is politics.
    Every Senator will have to live within themselves as to 
what they would like to see happen for the judiciary. My main 
concern here is not about you. It is about us. What are we 
going to be doing as a body to the judiciary when it is all 
said and done?
    Roe v. Wade and abortion. If I wanted to work for Ronald 
Reagan, one of the things I would tell the Reagan 
administration is I think Roe v. Wade was wrongly decided. They 
are likely to hire me because they were trying to prove to the 
Court that the Court took away from elected officials a very 
important right, protecting the unborn.
    I was on a news program with Senator Feinstein this 
weekend, who is a terrific person. She made a very emotional, 
compelling argument that she can remember back-alley abortions 
and women committing suicide when abortion was illegal. I 
understand that is very seared in her memory banks and that is 
important to her.
    Well, let me tell you there is another side to that story. 
There are millions of Americans, a bunch of them in South 
Carolina, who are heartsick that millions of unborn children 
have been sent to certain death because of what judges have 
done. It is a two-sided argument. It is an emotional event in 
our society.
    They are talking about filibustering maybe if you don't 
give the right answer. Well, what could possibly be the right 
answer about Roe v. Wade? If you acknowledge it is a precedent 
of the Court, well, then you would be right. If you refuse to 
listen to someone who is trying to change the way it is applied 
or to overturn it and you will say here I will never listen to 
them, you might talk me out of voting for you. I don't think 
any American should lose the right to challenge any precedent 
that the Supreme Court has issued because the judge wanted to 
get on the Court.
    And you may be a great fan of Roe v. Wade and you think it 
should be there forever. There may be a case where someone 
disagrees with that line of reasoning. What I want from the 
judge is the understanding that precedent matters, but the 
facts, the brief and the law is what you are going to base your 
decision on as to whether or not that precedent stands, not 
some bargain to get on the Court, because I can tell you if 
that ever becomes a reason to filibuster, there are plenty of 
people that I personally know, if it became fashionable to 
stand on the floor of the Senate to stop a nominee on the issue 
of abortion, who feel so deeply, so honestly held belief that 
an abortion is certain death for an unborn child that they 
would stand on their feet forever.
    And is that what we want? Is that where we are going as a 
Nation? Are we going to take one case and one issue and if we 
don't get the answer we like that represents our political view 
on that issue, are we going to bring the judiciary to their 
knees? Are we going to say as a body it doesn't matter how 
smart you are, how many cases you have decided, how many things 
you have done in your life as a lawyer, forget about it, it all 
comes down to this one issue?
    If we do, if we go down that road, there will be no going 
back, and good men and women will be deterred from coming 
before this body to serve their Nation as a judge at the 
highest levels. What we are saying and what we are doing here 
is far more important than just whether or not Judge Alito gets 
through the process.
    What is the proper role of a Senator when it comes to 
advising and consenting? I would argue that if we start taking 
the one or two cases we cherish the most and make that a litmus 
test, we have let our country down and we have changed the 
historical standard.
    Elections matter. Values debates occur all over this 
country. They occur in Presidential elections. It is no mystery 
as to what President Bush would do if he won. He would pick 
people like John Roberts and Sam Alito. That is what he said he 
would do. That is exactly what he has done. He has picked solid 
strict constructionists, conservatives, who have long, 
distinguished legal careers.
    What did President Clinton do? He picked people left of the 
center who worked for Democrats. And it cannot surprise the 
people on the other side that the two people we picked worked 
for Ronald Reagan. We liked Ronald Reagan. President Clinton 
picked Ginsburg and Breyer. Justice Ginsburg was the general 
counsel for the ACLU. If I am going to base my decision based 
on who you represented as a lawyer, how in the world could I 
ever vote for somebody that represented the ACLU?
    If I am going to make my decision based on whether or not I 
agree with the Princeton faculty and administration policies on 
ROTC students and quotas and I am bound by that, I will get 
killed at home. What Princeton does with their admission 
policies and whether or not a ROTC unit should be on a campus 
is an OK thing to debate; at least I hope it is OK. I think 
most Americans are going to be with the group that you are 
associated with, not the policies of Princeton.
    The bottom line is you come here as an individual with a 
life well lived. Everybody who seems to have worked with you as 
a private lawyer, public lawyer and as a judge admires you, 
even though they may disagree with you.
    My biggest concern, members of this Committee, is if we 
don't watch the way we treat people like Judge Alito, we are 
going to drive good men and women away from wanting to serve. 
There will be a Democratic President one day. I don't know 
when, but that is likely to happen, and there will be another 
Justice Ginsburg come over. If she came over in this 
atmosphere, she wouldn't get 96 votes. Judge Scalia wouldn't 
get 98 votes, and that is sad to me.
    I hope we will use this opportunity not only to treat you 
fairly, but not use a double standard. I hope we will 
understand that this is bigger than you, this is bigger than 
us, and the way we conduct ourselves and what we expect of you 
we had better be willing to expect when we are not in power.
    Thank you.
    Chairman Specter. Thank you, Senator Graham.
    Senator Schumer.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman.
    Judge Alito, welcome to you, Mrs. Alito, your two children, 
the rest of your family. I join my colleagues in congratulating 
you on your nomination. If confirmed, you will be one of nine 
people who collectively hold power over everyone who lives in 
this country. You will define our freedom, you will affect our 
security, and you will shape our law. You will determine on 
some days where we pray and how we vote. You will define on 
other days when life begins and what our schools may teach, and 
you will decide from time to time who shall live and who shall 
die. These decisions are final and appeals impossible.
    That is the awesome responsibility and power of a Supreme 
Court Justice, and it is therefore only appropriate that 
everyone who aspires to that office bear a heavy burden when 
they come before the Senate and the American people to prove 
that they are worthy.
    But while every Supreme Court nominee has a great burden, 
yours, Judge Alito, is triply high, first because you have been 
named to replace Sandra Day O'Connor, the pivotal swing vote on 
a divided Court; second, because you seem to have been picked 
to placate the extreme right wing after the hasty withdrawal of 
Harriet Miers; and finally, and most importantly, because your 
record of opinions and statements on a number of critical 
constitutional questions seems quite extreme.
    So, first, as this Committee takes up your nomination, we 
can't forget recent history, because that history increases 
your burden and explains why the American people want us to 
examine every portion of your record with great care.
    Harriet Miers's nomination was blocked by a cadre of 
conservative critics who undermined her at every turn. She 
didn't get to explain her judicial philosophy, she didn't get 
to testify at the hearing, and she did not get the up-or-down 
vote on the Senate floor that her critics are now demanding 
that you receive. Why? For the simple reason that those critics 
couldn't be sure that her judicial philosophy squared with 
their extreme political agenda. They seem to be very sure of 
you. The same critics who called the President on the carpet 
for naming Harriet Miers have rolled out the red carpet for 
you, Judge Alito. We would be remiss if we didn't explore why.
    And there is an additional significance to the Miers 
precedent which is this: everyone now seems to agree that 
nominees should explain their judicial philosophy and ideology. 
After so many of my friends across the aisle spoke so loudly 
about the obligation of nominees to testify candidly about 
their legal views and their judicial philosophy when the 
nominee was Harriet Miers, I hope we will not see a flip-flop 
now that the nominee is Sam Alito.
    The second reason your burden is higher, of course, is that 
you are filling the shoes of Sandra Day O'Connor. Those are big 
shoes to be sure, but hers are also special shoes. She was the 
first woman in the history of the Supreme Court, is the only 
sitting Justice with experience as a legislator, and has been 
the most frequent swing vote in a quarter century of service.
    While Sandra Day O'Connor has been at the fulcrum of the 
Court, you appear poised to add weight to one side. That alone 
is not necessarily cause for alarm or surprise, but is 
certainly a reason for pause. Are you in Justice O'Connor's 
mold or, as the President has vowed, are you in the mold of 
Justices Scalia and Thomas?
    Most importantly, though, your burden is high because of 
your record. Although I haven't made up my mind, I have serious 
concerns about that record. There are reasons to be troubled. 
You are the most prolific dissenter in the Third Circuit.
    This morning, President Bush said Judge Alito has the 
intellect and judicial temperament to be on the Court. But the 
President left out the most important qualification: a 
nominee's judicial philosophy.
    Judge Alito, in case after case, you give the impression of 
applying careful legal reasoning, but too many times you happen 
to reach the most conservative result. Judge Alito, you give 
the impression of being a meticulous legal navigator, but in 
the end you always seem to chart a right-ward course.
    Some wrongly suggest that we are being results-oriented 
when we question the results you have reached. But the opposite 
is true. We are trying to make sure you are capable of being 
fair, no matter the identity of the party before you. 
Sometimes, you give the government a free pass, but refuse to 
give plaintiffs a fair shake. We need to know that Presidents 
and paupers will receive equal justice in your courtroom.
    If the record showed that an umpire repeatedly called 95 
percent of pitches strikes when one team's players were up and 
repeatedly called 95 percent of pitches balls when the other 
team's players were up, one would naturally ask whether the 
umpire was being impartial and fair.
    In many areas, we will expect clear and straightforward 
answers because you have a record on these issues; for example, 
Executive power, congressional power and personal autonomy, 
just to name a few. The President is not a king, free to take 
any action he chooses without limitation by law.
    The Court is not a legislature, free to substitute its own 
judgment for that of elected bodies, and the people are not 
subjects, powerless to control their own most intimate 
decisions. Will your judicial philosophy preserve these 
principles or will it erode them?
    In each of these areas, there is cause for concern. In the 
area of Executive power, Judge Alito, you have embraced and 
endorsed the theory of the unitary Executive. Your deferential 
and absolutist view of separation of powers raises questions.
    Under this view, in times of war the President would, for 
instance, seem to have inherent authority to wiretap American 
citizens without a warrant, to ignore congressional Acts at 
will, or to take any other action he saw fit under his inherent 
powers. We need to know, when a President goes to far, will you 
be a check on his power or will you issue him a blank check to 
exercise whatever power alone he thinks appropriate. Right now, 
that is an open question, given your stated views.
    Similarly on the issue of federalism, you seem to have 
taken an extreme view, substituting your own judgment for that 
of a legislature. Certainly, one important case you wrote, in 
Rybar v. U.S., that Congress exceeded its power by prohibiting 
the possession of fully automatic machine guns. Do you still 
hold these cramped views of congressional power? Will you 
engage in judicial activism to find ways to strike down laws 
that the American people want their elected representatives to 
pass and that the Constitution authorizes?
    And, of course, you have made statements expressing your 
view that the, quote, ``Constitution does not protect the right 
to an abortion,'' unquote. In fact, you said in 1985 that you 
personally believe very strongly this is true. You also spoke 
while in the Justice Department of, quote, ``the opportunity to 
advance the goals of bringing about the eventual overruling of 
Roe v. Wade.''
    It should not be surprising that these statements will 
bring a searching inquiry, as many of my colleagues have 
already suggested. So we will ask you, do you still personally 
believe very strongly that the Constitution does not protect a 
right to an abortion? We will ask, do you view elevation to the 
Supreme Court, where you will no longer be bound by High Court 
precedent, as the long-sought opportunity to advance the goals 
of bringing about the eventual overruling of Roe v. Wade, as 
you stated in 1985?
    Judge Alito, I sincerely hope you will answer our 
questions. Most of the familiar arguments for ducking direct 
questions no longer apply and certainly don't apply in your 
case. For example, the logic of the mantra repeated by John 
Roberts at his hearing that one could not speak on a subject 
because the issue was likely to come before him quickly 
vanishes when the nominee has a written record, as you do, on 
so many subjects.
    Even under the so-called Ginsburg precedent, which was 
endorsed by Judge Roberts, Republican Senators and the White 
House, you have an obligation to answer questions on topics 
that you have written about. On the issue of choice, for 
example, because you have already made blanket statements about 
your view of the Constitution and your support for overruling 
Roe, you have already given the suggestion of pre-judgment on a 
question that will likely come before the Court. So I 
respectfully submit you cannot use that as a basis for not 
answering.
    So I hope, Judge Alito, that when we ask you about prior 
statements you have made about the law, some strong, some even 
strident, you will simply not answer, in effect, no comment. 
That will not dismiss prior expressions of decidedly legal 
opinions as merely personal beliefs, and that will enhance 
neither your credibility nor your reputation for careful legal 
reasoning.
    I look forward, Judge, to a full and fair hearing.
    Chairman Specter. Thank you, Senator Schumer.
    Senator Cornyn.

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
                             TEXAS

    Senator Cornyn. Thank you, Mr. Chairman.
    Judge Alito, welcome to the Committee, and to your family 
as well. I am a little surprised to learn that you have a 
triply high burden for confirmation here. I guess we will get a 
chance to explore that and the fairness of that, or whether all 
nominees ought to have the same burden before the Committee.
    What I want to also make sure of is that we don't hold you 
to a double standard, that we don't expect of you answers to 
questions that Justice Ginsburg and others declined to answer 
in the interests of the independence of the judiciary and in 
the interests of observing the canons of judicial ethics.
    Nevertheless, we have already heard a great deal about you 
and your credentials for the Supreme Court. As has been noted, 
you served with distinction on the court of appeals. You have 
served as a United States Attorney, and indeed you have served 
your entire adult life in public service.
    We have also heard a bit today--and we will hear more as 
these proceedings unfold--about the testimonials from people 
who have worked with you, people who know you best, whether 
liberal, moderate or conservative. The judges on your court 
have praised you as a thoughtful and open-minded jurist, and we 
will hear more from them later in the week.
    The same can be said of the dozens of law clerks who have 
worked with you over the last 15 years. As you know, law clerks 
are those who advise appellate judges on the cases they hear, 
and you have had law clerks from all political persuasions, 
from members of the Green Party, to Democrat clerks, even a 
clerk that went on to serve as counsel of record for John 
Kerry's campaign for President. And every single one of them 
says that you will make a terrific Supreme Court Justice, that 
you apply the law in a fair and even-handed manner, and that 
you bring no agenda to your job as a judge.
    If fairness, integrity, qualifications and an open mind 
were all that mattered in this process, you would be confirmed 
unanimously. But we know that is not how the process works, or 
at least how it works today. We know that 22 Senators, 
including 5 on this committee, voted against Chief Justice 
Roberts's confirmation just a few short months ago. And my 
suspicion is that you do not come here with a total level 
playing field.
    I am reluctantly inclined to the view that you and other 
nominees of this President to the Supreme Court start with no 
more than 13 votes on this Committee and only 78 votes in the 
full Senate, with a solid, immovable, and unpersuadable block 
of at least 22 votes against you, no matter what you say and no 
matter what you do. Now, that is unfortunate for you, but it is 
even worse for the Senate and its reputation as the world's 
greatest deliberative body.
    The question is why--with so many people from both sides of 
the aisle and across the ideological spectrum supporting your 
nomination--are liberal special interest groups and their 
allies devoting so much time and so much money to defeat your 
nomination? The answer, I am afraid, is that there are a number 
of groups who really don't want a fair-minded judge who has an 
openness to both sides of the argument. Rather, they want 
judges who will impose their liberal agenda on the American 
people--views so liberal that they cannot prevail at the ballot 
box.
    So they want judges who will find traditional marriage 
limited to one man and one woman unconstitutional. They want 
judges who will ban any trace of religious expression from the 
public square. They even want judges who will prohibit 
schoolchildren from reciting the Pledge of Allegiance. As I 
say, none of these are mainstream positions embraced by the 
American people. So the strategy is to try to impose their 
agenda through unelected judges.
    Judge Alito, the reason why these groups are trying to 
defeat your nomination--because you won't support their liberal 
agenda--is precisely why I support it. I want judges on the 
Supreme Court who will not use their position to impose 
personal policy preferences or a political agenda on the 
American people. I want judges on the Supreme Court who will 
respect the words and the meaning of the Constitution, the laws 
enacted by Congress, and the laws enacted by State 
legislatures.
    Now, this doesn't mean, as you know, that a judge will 
always reach what might be called a conservative result. It 
means that judges will reach whatever result is directed by the 
Constitution, by the law, and by the facts of a case. Sometimes 
it might be called conservative, sometimes it might be called 
liberal. But the point is that the meaning of the Constitution 
and other laws should not change unless we the people change 
them.
    A Supreme Court appointment is not a roving commission to 
rewrite our laws however you and your colleagues see fit. I 
will give you one example of an area where I believe our 
Supreme Court has been rewriting the Constitution for a long 
time. It is an area near and dear to me and others in this 
country. I am speaking of the ability of people of faith to 
freely express their beliefs in the public square.
    There is no doubt where the Founding Fathers stood on this 
issue. They believed that people of faith should be permitted 
to express themselves in public. They believed that this 
country was big enough and free enough to allow expression of 
an enormous variety of views and beliefs. They believed that 
freedom of expression included religious views and beliefs, so 
long as the government did not force people to worship in a 
particular manner and remained neutral on what those views and 
beliefs were.
    But this country has gotten seriously off track under the 
Supreme Court when it went so far as to limit the right of even 
private citizens to freely express their religious views in 
public. As I mentioned to you when we met early on in these 
proceedings, I had an opportunity, as some have had on this 
Committee, to argue a case before the U.S. Supreme Court. When 
I was attorney general, I helped argue a case called Santa Fe 
Independent School District v. Doe.
    The school district in that case had the temerity to permit 
student-led, student-initiated prayer before football games. 
And, of course, someone sued. I repeat, this is student-led, 
student-initiated, voluntary prayer. The Supreme Court held by 
a vote of six to three that even this was unconstitutional.
    The decision led the late Chief Justice Rehnquist to remark 
that the Court now exhibits ``hostility to all things religious 
in public life.'' It is hard to disagree with him. Depictions 
or expressions of sex, violence, crime are all permitted 
virtually without limit, but religion, it seems, never.
    Now, this is where you come in, Judge Alito. I appreciate 
your record on the Third Circuit respecting the importance of 
neutrality of government when it comes to religious expression 
on a voluntary basis by individual citizens. It is my sincere 
hope that, when confirmed, you will persuade your colleagues to 
reconsider their attitude toward religious expression and grant 
it the same freedom currently reserved for almost all other 
non-religious speech.
    No wonder many in America seem to believe that the Supreme 
Court has become one more inclined to protect pornography than 
to protect religious expression. Most people in America don't 
believe that ``God'' is a dirty word. But the sad fact is that 
some Americans are left to wonder whether the Supreme Court 
might have greater regard for it if it were.
    Again, welcome to the Committee and thank you for your 
continued willingness to serve our great Nation.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator Durbin?

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Mr. Chairman. Judge 
Alito, welcome to you and your family before the Judiciary 
Committee. You have heard time and again from my colleagues why 
this seat on the Supreme Court means so much. They have quoted 
the statistics of 193 5-4 decisions where Sandra Day O'Connor 
was the deciding vote in 148 of those instances. She was a 
critical vote in issues of civil rights, human rights, workers' 
rights, women's rights, restraining the power of an 
overreaching President.
    If you look at the record, the enviable record which Sandra 
Day O'Connor has written, you find she was the fifth and 
decisive vote to safeguard Americans' right to privacy, to 
require courtrooms to grant access to the disabled, to allow 
the Federal Government to pass laws to protect the environment, 
to preserve the right of universities to use affirmative 
action, to ban the execution of children in America. And 
Justice O'Connor was the fifth vote to uphold the time-honored 
principle, which bears repeating, of separation of church and 
state. There was real wisdom in the decision of our forefathers 
in writing a Constitution that gave us an opportunity to grow 
as such a diverse Nation, and we should never forget it.
    Justice O'Connor has been the critical decisive vote on 
many issues that go to the heart of who we are as a Nation. We 
believe, many of us, that the decision on filling this vacancy 
is going to tip the scales of justice on the Supreme Court one 
way or the other, and that is why we are so mindful of the 
importance of our task.
    Yesterday, the Chicago Tribune editorialized that anyone 
who questions your nomination has a heavy burden of proof. I 
disagree. I believe the burden of proof is yours, Judge Alito, 
the burden of demonstrating to the American people and this 
Committee that you or any nominee is worthy to serve on the 
highest Court, to succeed Sandra Day O'Connor.
    My friend Illinois Senator Paul Simon once said as a member 
of this same Committee that the test for a Supreme Court 
nominee is not where he stands on any given issue. The test is 
this: Will you use your power on the Court to restrict freedom 
or expand it? In the simplest terms, I think Paul Simon got it 
right. That is the best test because the Supreme Court is the 
last refuge in America for our rights and liberties. In my 
lifetime, it is the Supreme Court, not Congress, that 
integrated public schools, that allowed people of different 
races to marry, and established the principle that our 
Government should respect the value of privacy of American 
families. These decisions are the legacy of Justices who chose 
to expand American freedom. If you are confirmed, Judge Alito, 
will you continue their legacy?
    You and I spoke about the Griswold decision in my office. 
It is hard to imagine that 40 years ago people could be 
convicted of a crime, fined, and sent to prison for using the 
most common forms of birth control. The Supreme Court looked at 
that decision and said that is just wrong. We may not find the 
word ``privacy'' in the Constitution, but that is just inherent 
to our freedom as Americans. It seems like a given now. Who 
would even question it? But it has not been that long ago that 
up here on Capitol Hill we were involved in a bitter debate 
over the tragedy of Terri Schiavo. And Republican congressional 
leaders threatened Federal judges with impeachment if they did 
not agree to intervene into that family's painful personal 
decision. We see it in attempts on Capitol Hill to impose gag 
rules on doctors on what they can say to their patients about 
family planning. And we certainly see it now with an effort by 
this Government to tap our phones, invade our medical records, 
credit information, library records, and the most sensitive 
personal information in the name of national security.
    Now, Justice O'Connor was the critical fifth vote to 
protect our right of privacy. We want to know whether you will 
be that vote as well. You were the only judge on your court to 
authorize a very intrusive search of a 10-year-old girl. You 
were the only judge on your court who voted to diminish the 
right of privacy in the case of Planned Parenthood v. Casey, a 
position that was specifically rejected by the Supreme Court. 
And as a Government lawyer, you wrote that you personally 
believed very strongly the Constitution does not protect the 
right to an abortion.
    Like many, I have thought about this issue of abortion time 
and again. It is not an easy issue for most people. I have 
thought about the law and the impact of my personal religious 
beliefs and feelings. I have thought about the real lives of 
people and the tragic experiences of the women that I have met. 
And I have come to believe over the years that a woman should 
be able to make this agonizing decision with her doctor and her 
family and her conscience and that we should be very careful 
that we don't make that decision a crime except in the most 
extreme circumstances.
    There is also the issue of personal privacy when it comes 
to the Executive power. Throughout our Nation's history, during 
times of war, whether it was habeas corpus in the Civil War, 
the Alien and Sedition Acts in World War I, or Japanese 
internment camps in World War II, Presidents have gone too far. 
And in going too far, they have taken away the individual 
rights of American citizens. The last stop to protect those 
rights and liberties is the Supreme Court. That is why we want 
to make certain that when it comes to the checks and balances 
of the Constitution, you will stand with our Founding Fathers 
in protecting us from a Government or a President determined to 
seize too much power in the name of national security.
    As a Government lawyer, you pushed a policy of legislative 
construction designed to make congressional intent secondary to 
Presidential intent. You wrote, and I quote, ``The President 
will get the last word on questions of interpretation.'' In 
speeches to the Federalist Society, you have identified 
yourself as a strong proponent of the so-called unitary 
Executive theory. That is a marginal theory at best, and yet it 
is one that you have said you believe in.
    This is not an abstract debate. The Bush administration has 
repeatedly cited this theory to justify its most controversial 
policies in the war on terrorism. Under this theory, the Bush 
administration has claimed the right to seize American citizens 
in the United States and imprison them indefinitely without 
charge. They have claimed the right to engage in torture, even 
though American law makes torture a crime. Less than 2 weeks 
ago, the White House claimed the right to set aside the McCain 
torture amendment that passed the Senate 90-9. What was the 
rationale? The unitary Executive theory, which you have 
supported.
    In the Hamdi case, Justice O'Connor wrote for the 
plurality, and it has been quoted many times: ``A state of war 
is not a blank check for the President when it comes to the 
rights of the Nation's citizens.'' If you are confirmed, Judge 
Alito, who will inspire your thinking if this President or any 
President threatens our fundamental constitutional rights? Will 
it be the Federalist Society or will it be Sandra Day O'Connor?
    Two months ago, Rosa Parks was laid to rest. Her body laid 
in state in the Capitol Rotunda, a fitting tribute to the 
mother of our modern civil rights movement. Her courage is well 
known. The courage of Federal Judge Frank Johnson, whom we 
talked about, is well known as well. He was the one who gave 
the legal authority for the right to march from Selma to 
Montgomery, and he suffered dearly for it. He was ostracized 
and rejected. His life was threatened as a result of it.
    When we met in my office, Judge Alito, you told me about 
how your father as a college student was almost expelled for 
standing up to the college president who decided that the 
school basketball team should not use its African-American 
players against an all-white opponent. That university 
president did not want to offend their all-white opponent, but 
your dad stood up, and you were so proud of that moment in your 
family history. I admire your father's courage as well. But 
just as we do not hold the son responsible for the sins of the 
father, neither can we credit the son for the courage of the 
father. As Supreme Court Justice, would you have the courage to 
stand up for civil rights even if it is unpopular?
    We want to understand what you meant in 1985 when you said 
from the heart that you disagreed with the Warren Court on 
reapportionment, the one man/one vote principle. That was a 
civil rights decision. We want you to explain your membership 
in an organization that you highlighted at Princeton University 
that tried to challenge the admission of women and minorities. 
And I think we want to make certain of one thing. We want to 
make certain that every American who stood in silent tribute to 
Rosa Parks hopes that you will break your silence and speak out 
clearly for the civil rights that define our unity as a Nation.
    There have been many controversial cases alluded to here. 
Some people have questioned, What is the difference? What 
difference in my life does it make if Sam Alito is on the bench 
or if he isn't? Why would I care if it is a narrow 
interpretation or a broad interpretation of the law? How does 
it affect my life? We know it affects everyone's life. We were 
reminded just very recently with the tragedy that was in the 
headlines. In one of your dissents, you would have allowed a 
Pennsylvania coal mine to escape worker safety and health 
requirements required by Federal law. Last week's tragedy at 
the Sago mine reminds us that such a decision could have life 
and death consequences.
    Judge Alito, millions of Americans are concerned about your 
nomination. They are worried that you would be a judicial 
activist who would restrict our rights and freedoms. During 
your hearing, you will have a chance to respond, and I hope you 
do. More than any recent nominee, your speeches, your writings, 
your judicial opinions make it clear that you have the burden 
to prove to the American people that you would not come to the 
Supreme Court with any political agenda. Clear and candid 
answers are all that we ask.
    I sincerely hope you can convince the U.S. Senate and the 
American people that you will be a fifth vote on the Supreme 
Court that the American people can trust to protect our most 
basic important freedoms and preserve our time-honored values.
    Thank you very much.
    Chairman Specter. Thank you, Senator Durbin.
    Senator Brownback?

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Thank you, Mr. Chairman.
    Welcome, Judge Alito, your wife and family. Delighted to 
have you here. You only have two more pitchers, and then you 
get a bat. So I am sure people will be happy to hear from you.
    Mr. Chairman, before I go forward with my statement, I 
would like to enter into the record a summary of four cases 
that Judge Alito has ruled on where he backed employees 
claiming racial discrimination. It has been entered a couple of 
times here that he has not ruled in favor of people claiming 
racial discrimination, and I have a summary of four cases where 
he has, and I want to enter that into the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Brownback. Judge Alito, I welcome you to the 
hearing. This is an extraordinary process. It is a fabulous 
process and a chance for a discussion with you, with the 
American public, about the role of the judiciary in our society 
today. It has become an ever-expanding and important discussion 
because of the expanding role of the courts in recent years in 
American society. When the courts, improperly, I believe, 
assume the power to decide more political than legal issues in 
nature, the people naturally focus less on the law and more on 
the lawyers that are chosen really to administer the law. Most 
Americans want judges who will stick to interpreting the law 
rather than making it. It is beyond dispute that the 
Constitution and its Framers intended this to be the role of 
judges.
    For instance, although he was perhaps the leading advocate 
for expansive Federal power, you can look at Founding Father 
Alexander Hamilton, nevertheless assuring--assuring--the 
countrymen in Federalist 78 that the role of the Federal courts 
under the proposed Constitution would be limited. He said, 
``The courts must declare the sense of the law, and if they 
should be disposed to exercise will instead of judgment, the 
consequences would equally be the substitution of their 
pleasure to that of the legislative body.''
    It seems like we are back at an old debate--the role of the 
courts--and I believe you and others would look and say that 
the role of the courts is limited, and it is not to decide 
political matters.
    Chief Justice Marshall later explained in Marbury v. 
Madison that the Constitution permitted Federal courts neither 
to write nor execute the laws but, rather, to say what the law 
is. That narrow scope of judicial power was the reason the 
people accepted the idea that the Federal courts could have the 
power of judicial review. That is the ability to decide whether 
a challenged law comports with the Constitution.
    The people believed that while the courts would be 
independent, they would defer to the political branches on 
policy issues. This is the most foundational and fundamental of 
issues. And yet we are back in discussing it because of the 
role of the judiciary expanding in this society today.
    It may seem ironic, but the judicial branch preserves its 
legitimacy through refraining from action on political 
questions. That concept was put forward best by Justice 
Frankfurter, appointed by President Roosevelt. He said, 
``Courts are not representative bodies. They are not designed 
to be a good reflex of a democratic society. Their judgment is 
best informed and, therefore, most dependable within narrow 
limits.''
    Now, I want to take on this point of the reservation of 
certain seats on the bench for certain philosophies, which it 
seems as if we have heard a great deal about today that you 
need to be like Sandra Day O'Connor in judicial philosophy to 
be able to go on her seat on the bench. Some interest groups 
have put forward that philosophy and argued that you deserve 
closer scrutiny because you don't appear to have the same 
philosophy, or even opposition if it is not determined that you 
do not have the same judicial philosophy. This testimony 
suggests that that would change the ideological balance, that 
you would change that ideological balance, therefore, you 
should not be approved. And I say that that notion is not 
anywhere in the understanding of the role of the judges. It 
creates a double standard for your approval and looks 
conveniently--it looks suspiciously convenient for the 
opposition to put forward.
    Seats on the bench are not reserved for causes or 
interests. They are given to those who will uphold the rule of 
law so long as the nominee is well qualified to interpret and 
apply the law. This has long been the case of the Supreme 
Court. And I want to note here that historically the makeup of 
the Court has changed just as elected branches have changed. In 
fact, nearly half of the Justices, 46 of 109, who have served 
on the Supreme Court replaced Justices appointed by a different 
political party. In recent years, even as the Court has become 
an increasingly political body, the Senate is not focused on 
preserving any perceived ideological balance when Democrat 
Presidents have appointed people to the Court. And the best 
example of that is the Senate rejecting that notion when Ruth 
Bader Ginsburg came in front of the Senate and was approved 96-
3 to be on the Supreme Court to replace conservative Justice 
Byron White. This was in 1993.
    Now, Justice Ginsburg, it was noted earlier, was the 
general counsel for the ACLU, certainly a liberal group. It was 
abundantly clear during the confirmation hearing that Ginsburg 
would swing the balance of the Court to the left. But because 
President Clinton won the election and because Justice Ginsburg 
clearly had the intellectual ability and integrity to serve on 
the Court, she was confirmed.

    During her hearing, hardly any mention was made about 
balance with Justice White. The only discussion that occurred 
about Justice White was when Senator Kohl, our colleague, asked 
her what she thought of Justice White's career. And she started 
off by saying that she was not an athlete.

    History has shown that she did, in fact, dramatically 
change the balance of the Court in many critical areas, such as 
abortion, the privacy debate expansion, and child pornography. 
And I have behind me three of the key cases where Justice White 
ruled one way, even wrote the majority opinion, and Justice 
Ginsburg ruled the other way with the majority. You talk about 
a swing of balance, and yet the issue was not even raised at 
Justice Ginsburg's confirmation hearing, and yet now it seems 
as if that is the paramount issue--not only the paramount 
issue, it actually makes you have to go to a higher standard to 
be approved. And that is just simply not the way we have 
operated in the past, nor is it the way we should operate now.

    As I stated at Justice Roberts's hearing, the Court has 
injected itself into many of the political debates of our day, 
and as my colleague Senator Cornyn has mentioned, the Court has 
injected itself in the definition of marriage, deciding whether 
or not human life is worth protecting, permitting Government to 
transfer private property from one person to another, even 
interpreting the Constitution on the basis of foreign and 
international laws.

    The Supreme Court has also issued and never reversed a 
number of decisions that are repugnant to the Constitution's 
vision of human dignity and equality. Although cases like Brown 
v. Board of Education in my State are famous for correcting 
constitutional and court errors, there remain several other 
instances in which the Court strayed and stayed beyond the 
Constitution and the laws of the United States. Among the most 
famous of these Supreme Court cases of exercise of political 
power, I believe, are the cases of Roe v. Wade and Doe v. 
Bolton, two 1973 cases based on false statements which created 
a constitutional right to abortion. And you can claim whatever 
you want to of being pro-life or pro-choice, but the right to 
abortion is not in the Constitution. The Court created it. It 
created a constitutional right. And these decisions removed a 
fully appropriate political judgment from the people of several 
States and has led to many adverse consequences.

    For instance, it has led to the almost complete killing of 
a whole class of people in America. As I noted to my colleagues 
in the Roberts hearings, this year--this year--between 80 to 90 
percent of the children in America diagnosed with Down syndrome 
will be killed in the womb simply because they have a positive 
genetic test--which can be wrong and is often wrong, but they 
would have a positive genetic test for Down syndrome and they 
will be killed.

    America is poorer because of such a policy. We are at our 
best when we help the weakest. The weak make us strong. To kill 
them makes us all the poorer, insensitive, calloused, and 
jaded. Roe has made it not only possible but has found it 
constitutional to kill a whole class of people simply because 
of their genetic makeup. This is the effect of Roe.

    I think this is a proper issue for us to consider, and the 
judge you are replacing noted one time ``that the Court's 
unworkable scheme for constitutionalizing abortion has had this 
institutionally debilitating effect should not be surprising 
since the Court is not suited to the expansive role it has 
claimed for itself in the series of cases that began with 
Roe.''

    You will have many issues in front of you, many that we 
will not discuss here in front of this committee. I think it 
unfortunate that we only narrow in on so few of the cases that 
you are likely to hear in front of you. And yet that is the 
nature of the day because they are the hot, political, heat-
seeking cases. You are undoubtedly qualified. You are cited by 
the ABA to be unanimously well qualified. I look forward to a 
thorough discussion and a hopeful approval of you to be able to 
join the Supreme Court of the United States.

    Thank you, Mr. Chairman.

    Chairman Specter. Thank you very much, Senator Brownback.

    We now move to the final opening statement. When we finish 
the statement of Senator Coburn, we are going to go right to 
the presenters, Senator Lautenberg and Governor Whitman. So I 
would like them to be on notice that we will be doing that in 
just a few moments, and following Senator Lautenberg and 
Governor Whitman, we will be hearing from Judge Alito.

    Senator Coburn, the floor is yours.

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Coburn. Thank you. Judge Alito, welcome. I know you 
are tired of this, and I will try to be as brief as possible.

    One of the advantages of going last is to be able to hear 
what everybody else has said, and as I have listened today, we 
have talked about the unfortunate, the frail. The quotes have 
been ``fair shake for those that are underprivileged.'' We have 
heard values, ``strong, free, and fair,'' ``progress of our 
judiciary.'' We have heard ``the vulnerable, the more 
vulnerable, the weak, those who suffer.'' We have heard of an 
``Alito mold'' that has to be in the mold of somebody else. And 
as a practicing physician, the one disheartening thing that I 
hear is these very common words, this ``right to choose,'' and 
how we sterilize that to not talk about what it really is.

    I have had the unfortunate privilege of caring for over 300 
women who have had complications from this wonderful right to 
choose to kill their unborn babies. And that is what it is. It 
is a right of convenience to take the life. And the question 
that arises as we use all these adjectives and adverbs to 
describe our positions as we approach a Supreme Court nominee 
is where are we in America when we decide that it is legal to 
kill our unborn children. I mean, it is a real question for us. 
I debate honestly with those who disagree with me on this. It 
is a real issue of measurement of our society when we say it is 
fine to destroy unborn life who has a heartbeat at 16 days 
post-conception; 39 days post-conception you can measure the 
brain waves and there is pain felt. The ripping and tearing of 
an unborn child from its mother's womb through the hands of 
another and we say that is fine, you have a constitutional 
right to do that.

    How is it that we have a right of privacy and due process 
to do that, but you do not have the right, as rejected 
unanimously by the Supreme Court in 1997, to take your own life 
in assisted suicide. You know, how is it that we have sodomy 
protected under that due process, but prostitution unprotected. 
It is schizophrenic. And the reason it is schizophrenic is 
there is no foundation for it whatsoever other than a falsely 
created foundation that is in error.

    I don't know if we will ever change that. It is a measure 
of our society. But the fact is you cannot claim in this Senate 
hearing to care for those that are underprivileged, those that 
are at risk, those that are vulnerable, those that are weak, 
those that are suffering, and at the same time say I don't care 
about those who have been ripped from the wombs of women and 
the complications that have come about throughout that.

    So the debate for the American public and the real debate 
here is about Roe. Don't let it--we are going to go off in all 
sorts of directions, but the decisions that are going to be 
made in votes on the Committee and the votes on the floor is 
going to be about Roe, whether or not we as a society have 
decided that this is an ethical process, that we have this 
convenient process that, if we want to rationalize one moral 
choice with another, we just do it through abortion, this 
taking of the life--of life of an unborn child.

    I asked Chief Justice Roberts about this definition of 
life. You know, what is life? The Supreme Court cannot figure 
it out or does not want to figure it out. The fact that we know 
that there is no life if there is no heartbeat and brain waves, 
we know that in every State and every territory. But when we 
have heartbeat and brain waves, we refuse to accept it as the 
presence of life. This lack of logic of which we approach this 
issue because we like and we favor convenience over ethics, we 
favor convenience over the hard parts of life that actually 
make us grow.

    Senator Brownback talked about those with disabilities that 
are destroyed in the womb because of a genetic test that is 
sometimes wrong. I would put forward that we all have 
disabilities. Some of us, you just can't see it. And yet who 
makes the decision on whether or not we're qualified or not. We 
have gone down a road to which we don't have the answers for. 
That is why we have the schizophrenic decisions coming out of 
the Supreme Court that don't balance logically with one versus 
another decision.

    So my hope as we go through this process is to not confuse 
it with easy words and really be honest and straightforward 
about what this is about. I firmly believe that the Court 
should take another direction on many of these moral issues 
that face us. If we are to honor the heritage of our country, 
whether it be in terms of religious freedom, whether it be in 
terms of truly protecting life, protecting not just the unborn 
but who comes next, the infirm, the elderly, the maimed, the 
disabled--that is who comes next. As we get into the budget 
crunch of taking care of those people in the years to come, I 
believe we ought to have that debate honestly and openly. But 
the fact is we are going to cover it with everything except the 
real fact is we have made a mistake going down that road in 
terms of saying we can destroy our unborn children and there 
are no consequences to it.

    So I welcome you. This is a difficult process for you and 
your family. I am hopeful that you will be treated fairly. I am 
very disturbed at the picture that was painted by Senator 
Kennedy that you are not a man of your word, that you are 
dishonest. The implication that you are not reliable I don't 
think is a fair characterization of what I have read. And I 
look forward to you being able to give answers as you can to 
your philosophy. The real debate is we have had an activist 
Court, and the American people do not want an activist Court. 
And the real fear from those who might oppose you is that you 
will bring the Court back within a realm of where the American 
people might want us to be with the Supreme Court, one that 
interprets the law, equal justice under the law, but not 
advancing without us advancing, the legislative body advancing 
ahead of you.

    I welcome you. I return the balance of my time, and I look 
forward to your introduction and your opening statement.

    Chairman Specter. Thank you very much, Senator Coburn.

    We will now turn to our presenting witnesses, Senator 
Lautenberg and Governor Whitman. In accordance with our 
standing rules of the Committee, the presenters will each have 
5 minutes. They have been so informed, and we first welcome our 
colleague, Senator Frank Lautenberg, to present Judge Alito.

PRESENTATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO 
  BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 
STATES, BY HON. FRANK LAUTENBERG, A U.S. SENATOR FROM THE STATE 
                         OF NEW JERSEY

    Senator Lautenberg. Thank you, Mr. Chairman, and Senator 
Leahy, colleagues on this Committee. Thank you for the 
opportunity to testify here today. John Corzine, U.S. Senator, 
and now Governor-elect in New Jersey, wanted to be here, but 
transition duties in Trenton prevent him from doing so.

    Now, I have been honored to serve in the U.S. Senate for 21 
years, and I am convinced that our duty to provide advice and 
consent for Justices of the Supreme Court is our most important 
constitutional responsibility. Our mandate is to be a Nation of 
laws, and the Supreme Court is the place where we look to 
safeguard our civil rights and our individual liberties.

    But I believe that Justices must recognize that our 
Constitution is an 18th century document that needs to be 
applied in the context of the 21st century. We also depend on 
the Supreme Court to uphold the integrity of our Government. So 
I am privileged to have the opportunity to introduce Sam Alito, 
Jr., to this Committee, and his beautiful family that he 
brought along to fortify his candidacy.

    Judge Alito was born and raised in the great State of New 
Jersey. Our State has a legacy of producing outstanding 
jurists, most notably the late William J. Brennan, who ushered 
in our Nation's re-commitment to civil rights in the latter 
half of the 20th century. Another distinguished jurist, Justice 
Antonin Scalia, also was born in New Jersey.

    In 1950, Sam Alito was born in our State's capital city, 
Trenton, New Jersey, to a family of worthy achievement. Judge 
Alito's father--I am moving too quickly here--Judge Alito's 
father was an immigrant from Italy who taught history in high 
school and later ran the New Jersey Office of Legislative 
Services, which is similar to our own congressional Research 
Service, in that it provides objective, unbiased information to 
the legislature. Judge Alito's mother was a librarian, teacher 
and school principal, and she is now 91 and still, as I 
understand it, residing in the family home in Hamilton, New 
Jersey.

    From his parents, Judge Alito learned the importance of 
education and integrity. Judge Alito and his sister went to 
public school in Hamilton, New Jersey, where they both joined 
the debating team. It seemed like the debating experience paid 
off, as both he and his sister have excelled in the legal 
profession.

    Sam Alito then went on to Princeton University, where his 
yearbook entry predicted that one day he would warm a seat on 
the Supreme Court. He graduated from Yale School in 1975, and 
then served as a clerk for Circuit Court Judge Leonard Garth, 
with whom he currently serves.

    In 1977, Sam Alito joined the U.S. Attorney's office in 
Newark, where he met his future wife, Martha, who is present 
here today. They later moved to Washington, where Sam Alito 
served as an assistant to the Solicitor General and later in 
the Department of Justice Office of Legal Counsel.

    In 1987, Judge Alito returned home to New Jersey after 
President Reagan appointed him U.S. Attorney for the District 
of New Jersey. He was a strong prosecutor, and nobody was 
surprised when President George H.W. Bush appointed him to the 
Third Circuit Court in 1990, and I had the privilege of 
introducing him then as well.

    Judge Alito's accomplishments in life are the embodiment of 
the American dream. I am honored today to introduce him to the 
Committee. He is a young man. If the Senate confirms him for a 
lifetime appointment to the Supreme Court, he could serve for 
three decades, or even longer, especially judging it from my 
point of view. His decisions would affect our rights, the 
rights of our children, our grandchildren, and other future 
generations.

    Mr. Chairman, you know well it is the job of this Committee 
to evaluate Judge Alito's qualifications and fitness for the 
Court, including his views on legal issues. And I know every 
member of the Committee takes that obligation seriously, and I 
trust that Judge Alito will be forthcoming and cooperative in 
this process. I have had a chance to meet him. I know that he 
responded to the questions that I put to him. Maybe they were 
too easy, but he responded very well to them.

    I thank you, Mr. Chairman. I am pleased to be here with our 
former Governor, Christie Whitman, and we haven't sat at a 
table together for a long time, but it is a good opportunity to 
do so.

    Thank you.

    Chairman Specter. Senator Lautenberg, do you care to make a 
recommendation on the nominee?

    Senator Lautenberg. I care to present the evidence, just 
the evidence, Mr. Chairman, and we will let the record speak 
for itself.

    Chairman Specter. Our next presenter is Governor Whitman, 
distinguished two-term Governor for the State of New Jersey, 
and in the Cabinet of President Bush as Administrator of the 
Environmental Protection Agency.

    We welcome you here, Governor Whitman, and look forward to 
your testimony.

PRESENTATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO 
  BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 
   STATES, BY CHRISTINE TODD WHITMAN, FORMER GOVERNOR OF NEW 
JERSEY, AND FORMER ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION 
                             AGENCY

    Governor Whitman. Thank you, Mr. Chairman. It is a pleasure 
to be here today with Senator Lautenberg to introduce Judge 
Samuel A. Alito, Jr., and I do urge your support for his 
nomination to the Supreme Court.

    I won't go into his family background. Senator Lautenberg 
has done that--save to mention one member of the family that he 
didn't, which is that the Judge's sister, Rosemary, is a 
nationally recognized employment attorney and someone who is 
recognized as part of a family that has devoted itself to 
public service and continues to do that.

    Judge Alito personifies the motto of the civic pride 
embodied in the slogan of his hometown, ``Trenton makes, the 
world takes.'' And with the consent of the Senate, one of the 
most important bodies in the world, the U.S. Supreme Court, can 
take a proud product of Trenton, New Jersey, into their 
chambers.

    But I am not here to discuss Judge Alito's family 
background or his State ties. I am here to discuss his own 
history of achievement and his potential to be a great 
Associate Justice of our Supreme Court.

    Sam Alito has excelled at everything he has undertaken. He 
was an exceptional student at Princeton University and Yale Law 
School, an outstanding young attorney at the Justice 
Department, an accomplished United States Attorney, and for the 
past 15 years has been a respected and exemplary Federal 
Appeals Court Judge.

    The American Bar Association just gave him their highest 
rating for his seat as Justice, and in his past two appearances 
before the Senate for confirmation, he has received unanimous 
support.

    There is, however, more to my support of Judge Alito. Like 
other Americans, I have read many articles dissecting positions 
Judge Alito has taken throughout his career, trying to discern 
how he might decide on issues likely to appear before the 
Supreme Court that he would confront as a Justice. I too have 
examined the record. In the final analysis, my decision to 
support Judge Alito for this position is not based on whether I 
agree with him on a particular issue or set of issues or on his 
conformity with any particular political ideology. In fact, 
while we may agree on some political issues, I know there are 
others on which we disagree. Nevertheless, one's agreement or 
disagreement on a political question is, after all, ultimately 
irrelevant to the issue of whether or not Judge Alito should 
serve as an Associate Justice of the Supreme Court.

    The Court's role is not to rule based on Justices' personal 
persuasions, rather on persuasive arguments grounded on fact, 
those facts presented in that particular case, and on their 
interpretation of the Constitution. Those decisions are, of 
course, grounded in the hard reality of disputed fact and the 
messiness of the real world, but they are also guided by 
principles of law and justice which have long been treasured by 
the people of this country. We should look for Justices who 
understand that instinctively in the very core of their being. 
I saw this trait in Judge Alito when he served on the Appeals 
Court during my terms as Governor, and I have every reason and 
every confidence that he will exhibit the same as a Supreme 
Court Justice.

    Policy in the United States is defined through the laws 
crafted by the legislative branch of Government and carried out 
by the executive. Our judges make decisions based on their 
interpretation of the intent of those laws. We do not want 
Justices to conform their decisions' ideologies. We do want 
Justices whose opinions are shaped by the facts before them and 
by their understanding of the Constitution. We should also look 
for Justices who possess the necessary qualities of intellect 
and humility, desirable in those with great responsibility and 
who can express their thinking clearly and in understandable 
language. While we should expect the Justices will hold 
philosophies that will guide their decisions, we should equally 
expect that they will not hold ideologies that will 
predetermine their decisions. That is the genius of our system.

    Mr. Chairman, some have suggested that Judge Alito has an 
ideological agenda. I believe that an honest and complete 
review of his record as a whole will find that his only agenda 
is fidelity to his judicial craft. If Judge Alito has a bias, 
it is in favor of narrowly drawn opinions that respect 
precedent and reflect the facts before him.

    Members of the Committee, yours is an extraordinary 
responsibility. Decisions by our Supreme Court will affect the 
lives of Americans for generations to come. As politicians, 
whether current or retired, we all have deeply held positions 
we want to protect. When I was Governor, it fell to me five 
times to appoint members of the New Jersey State Supreme Court. 
One thing that experience taught me was that it is virtually 
impossible to find judges who will act as you would act were 
you in their position. That is as it should be. Your 
responsibility is to the extent possible to determine whether 
or not the nominee before you has the legal background, 
intelligence and integrity to be a credit to the Court.

    Sam Alito has been a model as a Federal Appeals Court 
Judge. He has shown that he has the intellect, the experience 
and the temperament to serve with true distinction. I have 
every confidence he will be a balanced, fair and thoughtful 
Justice. I urge this Committee to favorably report his 
nomination to the U.S. Senate.

    Thank you very much.

    Chairman Specter. Thank you very much, Governor Whitman.

    Without objection, the statement of Senator Corzine will be 
made a part of the record.

    We appreciate your coming, Senator Lautenberg, appreciate 
your coming Governor Whitman.

    Judge Alito, if you will resume center stage. Judge, you 
can remain standing. We now come to the formal swearing in of 
the nominee. I count 41 cameras in the well.

    [Laughter.]

    Chairman Specter. And there are just behind you, a grouping 
of cameras, seven in number, and I see three more. So you are 
well up to 50, which exceeds the number present, only 28, for 
Chief Justice Roberts. So that may be an omen. I am stalling 
for time a little bit here to allow the photographers to 
position themselves. They have sat, if not patiently, 
impatiently, all day. We may move the swearing in to the 
beginning of the ceremony in the future so they can all go out 
and do something productive.

    [Laughter.]

    Chairman Specter. If you would raise your right hand, do 
you solemnly swear that the testimony you will give before the 
Committee of the Judiciary of the U.S. Senate will be the 
truth, the whole truth and nothing but the truth, so help you 
God?

    Judge Alito. I do.

    Chairman Specter. Thank you, Judge Alito. You may be 
seated, and we welcome whatever opening comments you care to 
make.

STATEMENT OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO BE 
 AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

    Judge Alito. Thank you very much, Mr. Chairman. I am deeply 
honored to appear before you. I am deeply honored to have been 
nominated for a position on the Supreme Court, and I am humbled 
to have been nominated for the seat that is now held by Justice 
O'Connor. Justice O'Connor has been a pioneer, and her 
dedicated service of the Supreme Court will never be forgotten, 
and the people of the country certainly owe her a great debt 
for the service that she has provided.

    I am very thankful to the President for nominating me, and 
I am also thankful to the members of this Committee and many 
other Senators who took time from their busy schedules to meet 
with me. That was a great honor for me, and I appreciate all of 
the courtesies that were extended to me during those visits. 
And I want to thank Senator Lautenberg and Governor Whitman for 
coming here today and for their kind introductions.

    During the previous weeks, an old story about a lawyer who 
argued a case before the Supreme Court has come to my mind, and 
I thought I might begin this afternoon by sharing that story. 
The story goes as follows:

    This was a lawyer who had never argued a case before the 
Court before, and when the argument began, one of the Justices 
said, ``How did you get here?'' meaning how had his case worked 
its way up through the court system. But the lawyer was rather 
nervous, and he took the question literally, and he said--and 
this was some years ago. He said, ``I came here on the 
Baltimore and Ohio Railroad.''

    This story has come to my mind in recent weeks because I 
have often asked myself how in the world did I get here. And I 
want to try to answer that today and not by saying that I came 
here on I-95 or on Amtrak.

    I am who I am in the first place because of my parents and 
because of the things that they taught me, and I know from my 
own experience as a parent that parents probably teach most 
powerfully not through their words but through their deeds. And 
my parents taught me through the stories of their lives, and I 
don't take any credit for the things that they did or the 
things that they experienced. But they made a great impression 
on me.

    My father was brought to this country as an infant. He lost 
his mother as a teenager. He grew up in poverty. Although he 
graduated at the top of his high school class, he had no money 
for college, and he was set to work in a factory. But at the 
last minute, a kind person in the Trenton area arranged for him 
to receive a $50 scholarship, and that was enough in those days 
for him to pay the tuition at a local college and buy one used 
suit. And that made the difference between his working in a 
factory and going to college.

    After he graduated from college, in 1935, in the midst of 
the Depression, he found that teaching jobs for Italian-
Americans were not easy to come by, and he had to find other 
work for a while. But eventually he became a teacher, and he 
served in the Pacific during World War II, and he worked, as 
has been mentioned, for many years in a nonpartisan position 
for the New Jersey Legislature, which was an institution that 
he revered.

    His story is a story that is typical of a lot of Americans, 
both back in his day and today, and it is the story, as far as 
I can see it, about the opportunities that our country offers 
and also about the need for fairness and about hard work and 
perseverance and the power of a small good deed.

    My mother is a first-generation American. Her father worked 
in the Roebling Steel Mill in Trenton, New Jersey. Her mother 
came from a culture in which women generally did not even leave 
the house alone, and yet my mother became the first person in 
her family to get a college degree. She worked for more than a 
decade before marrying. She went to New York City to get a 
master's degree, and she continued to work as a teacher and a 
principal until she was forced to retire. Both she and my 
father instilled in my sister and me a deep love of learning.

    I got here in part because of the community in which I grew 
up. It was a warm but definitely an unpretentious, down-to-
earth community. Most of the adults in the neighborhood were 
not college graduates. I attended the public schools. In my 
spare time, I played baseball and other sports with my friends. 
And I have happy memories and strong memories of those days and 
good memories of the good sense and the decency of my friends 
and my neighbors.

    And after I graduated from high school, I went a full 12 
miles down the road, but really to a different world, when I 
entered Princeton University. A generation earlier, I think 
that somebody from my background probably would not have felt 
fully comfortable at a college like Princeton, but by the time 
I graduated from high school, things had changed. And this was 
a time of great intellectual excitement for me. Both college 
and law school opened up new worlds of ideas. But this was back 
in the late 1960s and early 1970s. It was a time of turmoil at 
colleges and universities. And I saw some very smart people and 
very privileged people behaving irresponsibly, and I couldn't 
help making a contrast between some of the worst of what I saw 
on the campus and the good sense and the decency of the people 
back in my own community.

    I am here in part because of my experiences as a lawyer. I 
had the good fortune to begin my legal career as a law clerk 
for a judge who really epitomized open-mindedness and fairness. 
He read the record in detail in every single case that came 
before me. He insisted on scrupulously following precedents, 
both the precedents of the Supreme Court and the decisions of 
his own court, the Third Circuit. He taught all of his law 
clerks that every case has to be decided on an individual 
basis, and he really didn't have much use for any grand 
theories.

    After my clerkship finished, I worked for more than a 
decade as an attorney in the Department of Justice, and I can 
still remember the day as an Assistant U.S. Attorney when I 
stood up in court for the first time and I proudly said, ``My 
name is Samuel Alito, and I represent the United States in this 
court.'' It was a great honor for me to have the United States 
as my client during all of those years.

    I have been shaped by the experiences of the people who are 
closest to me, by the things I have learned from Martha; by my 
hopes and my concerns for my children, Phillip and Laura; by 
the experiences of members of my family, who are getting older; 
by my sister's experiences as a trial lawyer in a profession 
that has traditionally been dominated by men. And, of course, I 
have been shaped for the last 15 years by my experiences as a 
judge of the court of appeals.

    During that time, I have sat on thousands of cases. 
Somebody mentioned the exact figure this morning. I don't know 
what the exact figure is, but it is way up in the thousands. 
And I have written hundreds of opinions. And the members of 
this Committee and the members of their staff who have had the 
job of reviewing all of those opinions really have my sympathy.

    [Laughter.]

    Judge Alito. I think that may have constituted cruel and 
unusual punishment.

    I have learned a lot during my years on the Third Circuit, 
particularly, I think, about the way in which a judge should go 
about the work of judging. I have learned by doing, by sitting 
on all of these cases, and I think I have also learned from the 
examples of some really remarkable colleagues.

    When I became a judge, I stopped being a practicing 
attorney, and that was the big change in role. The role of a 
practicing attorney is to achieve a desirable result for the 
client in the particular case at hand. But a judge can't think 
that way. A judge can't have any agenda. A judge can't have any 
preferred outcome in any particular case. And a judge certainly 
doesn't have a client. The judge's only obligation--and it's a 
solemn obligation--is to the rule of law, and what that means 
is that in every single case, the judge has to do what the law 
requires.

    Good judges develop certain habits of mind. One of those 
habits of mind is the habit of delaying reaching conclusions 
until everything has been considered. Good judges are always 
open to the possibility of changing their minds based on the 
next brief that they read or the next argument that is made by 
an attorney who is appearing before them or a comment that is 
made by a colleague during the conference on the case, when the 
judges privately discuss the case.

    It has been a great honor for me to spend my career in 
public service. It has been a particular honor for me to serve 
on the court of appeals for these past 15 years because it has 
given me the opportunity to use whatever talent I have to serve 
my country by upholding the rule of law. And there is nothing 
that is more important for our Republic than the rule of law.

    No person in this country, no matter how high or powerful, 
is above the law, and no person in this country is beneath the 
law.

    Fifteen years ago, when I was sworn in as a judge of the 
court of appeals, I took an oath. I put my hand on the Bible 
and I swore that I would administer justice without respect to 
persons, that I would do equal right to the poor and to the 
rich, and that I would carry out my duties under the 
Constitution and the laws of the United States. And that is 
what I have tried to do to the very best of my ability for the 
past 15 years, and if I am confirmed, I pledge to you that that 
is what I would do on the Supreme Court.

    Thank you.

    Chairman Specter. Thank you very much, Judge Alito, for 
those opening comments.

    We will adjourn at this point, and we will resume tomorrow 
morning at 9:30, when we will start the first round of 
questioning with each Senator on round one having 30 minutes.

    [Whereupon, at 3:40 p.m., the Committee was adjourned.]
    [The biographical information of Judge Alito follows.] 
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 NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

                              ----------                              


                       TUESDAY, JANUARY 10, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room 216, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, 
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
    Chairman Specter. The Judiciary Committee will now proceed 
with the confirmation hearing of Judge Alito for the Supreme 
Court.
    Before beginning the first round of questioning, just a 
little review as to our procedure. As announced, there will be 
a 30-minute allocation for each Senator. We intend to work 
rather late this afternoon, perhaps even into the early 
evening. I do not know that it is possible to complete the 
first round of questioning today. That would be a good 
objective. We will see how it goes.
    Judge Alito, you are free to let us know whenever you want 
to break. We will take a couple of breaks at the midpoint of 
the morning and the afternoon, but there are 18 of us and only 
one of you, so when you would like a break, your schedule takes 
precedence over ours.
    Before beginning the opening round, let me yield to my 
colleague, Senator Leahy, to see if he has some additional 
comments.
    Senator Leahy. I thank you, Mr. Chairman. I also appreciate 
the fact we have kept to the clock. I think it has been 
helpful, and I would hope that Judge Alito would bear with us 
on that. We will have a lot of questions. I think to take the 
time to get to them all--you have always been accommodating 
about that--I think that that requires cooperation on both 
sides of the dais.
    We do have the advantage, Mr. Chairman, that we did not 
have with Judge Roberts's hearings, that we are not in session 
and we are not going to be interrupted by votes, and we have 
the time to do it. I would hope that we do not go into a 
marathon for both his sake and us older guys' sake. But I do 
appreciate that you have run this with fairness and even-
handedness, and I appreciate that.
    Chairman Specter. Since there are no older guys involved or 
gals, we can consider the marathon, but we will keep it within 
bounds. You can start the clock. I will maintain the clock 
meticulously, as we have maintained timing as our Judiciary 
Committee practice.
    Judge Alito, you will be faced with many, many questions on 
many topics. I am going to start today with a woman's right to 
choose, move to Executive power, and then hopefully within the 
30 minutes pick up congressional power.
    Starting with a woman's right to choose, Judge Alito, do 
you accept the legal principles articulated in Griswold v. 
Connecticut, that the Liberty Clause and the Constitution 
carries with it the right to privacy?
    Judge Alito. Senator, I do agree that the Constitution 
protects a right to privacy, and it protects the right to 
privacy in a number of ways. The Fourth Amendment certainly 
speaks to the right of privacy. People have a right to privacy 
in their homes and in their papers, and in their persons. And 
the standard for whether something is a search is whether 
there's an invasion of a right to privacy, a legitimate 
expectation of privacy.
    Chairman Specter. Well, Griswold dealt with the right to 
privacy on contraception for married women. Do you agree with 
that?
    Judge Alito. I agree that Griswold is now I think 
understood by the Supreme Court as based on the Liberty Clauses 
of the Due Process Clause of the Fifth Amendment and the 14th 
Amendment.
    Chairman Specter. Do you agree also with Eisenstadt which 
carried forward Griswold to single people?
    Judge Alito. I do agree with the result in Eisenstadt.
    Chairman Specter. Let me move now directly into Casey v. 
Planned Parenthood, and picking up the gravamen of Casey as it 
has applied, Roe on the woman's right to choose, originating 
from the Privacy Clause with Griswold being its antecedent, and 
I want to take you through some of the specific language of 
Casey to see what your views are, and what weight you would 
ascribe to this rationale as you would view the woman's right 
to choose. In Casey the joint opinion said, ``People have 
ordered their thinking and lives around Roe. To eliminate the 
issue of reliance would be detrimental. For two decades of 
economic and social development people have organized intimate 
relationships and reliance on the availability of abortion in 
the event contraception should fail.'' Pretty earthy language, 
but that is the Supreme Court's language. The Court went on to 
say, ``The ability of women to participate equally in the 
economic and social life of the Nation has become facilitated 
by their ability to control their reproductive lives.''
    Now that states in specific terms the principle of 
reliance, which is one of the mainstays, if not the mainstay, 
on stare decisis precedent to follow tradition. How would you 
weigh that consideration on the woman's right to choose?
    Judge Alito. Well, I think the doctrine of stare decisis is 
a very important doctrine. It's a fundamental part of our legal 
system, and it's the principle that courts in general should 
follow their past precedents, and it's important for a variety 
of reasons. It's important because it limits the power of the 
judiciary. It's important because it protects reliance 
interest, and it's important because it reflect the view that 
courts should respect the judgments and the wisdom that are 
embodied in prior judicial decisions. It's not an inexorable 
command, but it is a general presumption that courts are going 
to follow prior precedents, and as you mentioned--
    Chairman Specter. How do you come to grips with the 
specifics where the Court, in the joint opinion, spoke of 
reliance on the availability of abortion in the event 
contraception should fail, on that specific concept of 
reliance?
    Judge Alito. Well, reliance is, as you mentioned, Mr. 
Chairman, one of the important foundations of the doctrine of 
stare decisis. It is intended to protect reliance interests, 
and people can rely on judicial decisions in a variety of ways. 
There can be concrete economic reliance. Government 
institutions can be built up in reliance on prior decisions. 
Practices of agencies and Government officials can be molded 
based on reliance. People can rely on decisions in a variety of 
ways. In my view--
    Chairman Specter. Let me move on to another important 
quotation out of Casey. Quote: ``A terrible price would be paid 
for overruling Casey, for overruling Roe. It would seriously 
weaken the Court's capacity to exercise the judicial power and 
to function as the Supreme Court of a Nation dedicated to the 
rule of law, and to overrule Roe under fire would subvert the 
Court's legitimacy.''
    Do you see the legitimacy of the Court being involved in 
the precedent of Casey?
    Judge Alito. Well, I think that the Court, and all the 
courts, the Supreme Court, my court, all the Federal courts, 
should be insulated from public opinion. They should do what 
the law requires in all instances. That's why they're not--
that's why the members of the judiciary are not elected. We 
have a basically democratic form of Government, but the 
judiciary is not elected, and that's the reason, so that they 
don't do anything under fire. They do what the law requires.
    Chairman Specter. But do you think there is as fundamental 
a concern as legitimacy of the Court would be involved if Roe 
were to be overturned?
    Judge Alito. Mr. Chairman, I think that the legitimacy of 
the Court would be undermined in any case if the Court made a 
decision based on its perception of public opinion. It should 
make its decisions based on the Constitution and the law. It 
should not be--it should not sway in the wind of public opinion 
at any time.
    Chairman Specter. Let me move to just the final quotation 
that I intend to raise from Casey, and it is, ``After nearly 20 
years of litigation in Roe's wake, we are satisfied that the 
immediate question is not the soundness of Roe's resolution of 
the issue, but the precedentual force that must be accorded to 
its holding.'' That separates out the original soundness of 
Roe, which has been criticized, and then lays emphasis on the 
precedentual value. How would you weigh that consideration were 
this issue to come before you if confirmed?
    Judge Alito. Well, I agree that in every case in which 
there is a prior precedent, the first issue is the issue of 
stare decisis, and the presumption is that the Court will 
follow its prior precedents. There needs to be a special 
justification for overruling a prior precedent.
    Chairman Specter. Let me turn to an analogous situation, 
and that is Chief Justice Rehnquist's change of heart on the 
Miranda ruling. In 1974 in the case of Michigan v. Tucker, he 
was then Justice Rehnquist, wrote an opinion severely limiting 
Miranda, in effect stating he did not like it. Then in the year 
2000 in the case of United States v. Dickerson, Chief Justice 
Rehnquist wrote an opinion of holding Miranda, and he did that 
because, ``Miranda was embedded in the routine police practices 
to a point where the warnings have become a part of our 
National culture.''
    Now, there has been an analogy made from what Chief Justice 
Rehnquist said on the Miranda issue to the Roe issue. How would 
you evaluate the consideration of Roe being embedded in the 
culture of our society?
    Judge Alito. Well, I think that Chief Justice Rehnquist 
there was getting at a very important point, and--
    Chairman Specter. Think he was right?
    Judge Alito. I think he was getting at--he was right in 
saying that reliance can take many forms. It can take a very 
specific and concrete form, and there can be reliance in the 
sense that he was talking about there, and I think what he's 
talking about there is that a great many people, and in that 
instance, police departments around the country, over a long 
period of time, had adapted to the Miranda rule, had 
internalized it. I think that all the branches of Government 
had become familiar with it and comfortable with it, and had 
come to regard it as a good way--after a considerable breaking 
in period--a good way of dealing with a difficult problem, and 
the problem was how to deal with interrogations leading to 
confessions, in terms of--
    Chairman Specter. Judge Alito, let me move to the 
dissenting opinion by Justice Harlan in Poe v. Ullman, where he 
discusses the constitutional concept of liberty and says, ``The 
traditions from which liberty developed, that tradition is a 
living thing.'' Would you agree with Justice Harlan that the 
Constitution embodies the concept of a living thing?
    Judge Alito. I think the Constitution is a living thing in 
the sense that matters, and that is that it is--it sets up a 
framework of Government and a protection of fundamental rights 
that we have lived under very successfully for 200 years, and 
the genius of it is that it is not terribly specific on certain 
things. It sets out some things are very specific, but it sets 
out some general principles, and then leaves it for each 
generation to apply those to the particular factual situations 
that come up.
    Chairman Specter. Would you agree with Cardozo on Palco 
that it represents the values of a changing society?
    Judge Alito. The liberty component of the Fifth Amendment 
and the 14th Amendment, which I was talking about earlier, 
embody the deeply rooted traditions of the country, and it's up 
to each--those traditions and those rights apply to new factual 
situations that come up. As times change, new factual 
situations come up, and the principles have to be applied to 
those situations. The principles don't change. The Constitution 
itself doesn't change, but the factual situations change, and 
as new situations come up, the principles and the rights have 
to be applied to them.
    Chairman Specter. Judge Alito, the commentators have 
characterized Casey as a super precedent. Judge Luttig, in the 
case of Richmond Medical Center, called the Casey decision 
super stare decisis. In quoting from Casey, Judge Luttig 
pointed out, the essential holding of Roe v. Wade should be 
retained and once again reaffirmed. Then in support of Judge 
Luttig's conclusion that Casey was super stare decisis, he 
refers to Stenberg v. Carhart, and quotes the Supreme Court, 
saying, ``We shall not revisit these legal principles.'' That 
is a pretty strong statement for the Court to make, that we 
shall not revisit the principles upon which Roe was founded, 
and the concept of super stare decisis or super precedent 
arises as the commentators have characterized it, by a number 
of different Justices appointed by a number of different judges 
over a considerable period of time. Do you agree that Casey is 
a super precedent or a super stare decisis as Judge Luttig 
said?
    Judge Alito. Well, I personally would not get into 
categorizing precedents as super precedents or super duper 
precedents, or any--
    Chairman Specter. Did you say ``super duper?''
    [Laughter.]
    Judge Alito. Right.
    Chairman Specter. Good.
    Judge Alito. Any sort of categorization like that--
    Chairman Specter. I like that.
    [Laughter.]
    Judge Alito [continuing]. Sort of reminds me of the size of 
laundry detergent in the supermarket.
    [Laughter.]
    Judge Alito. I agree with the underlying thought that when 
a precedent is reaffirmed, that strengthens the precedent, and 
when the Supreme Court says that we are not--
    Chairman Specter. How about being reaffirmed 38 times?
    Judge Alito. Well, I think that when a precedent is 
reaffirmed, each time it's reaffirmed that is a factor that 
should be taken into account in making the judgment about stare 
decisis, and when a precedent is reaffirmed on the ground that 
stare decisis precludes or counsels against reexamination of 
the merits of the precedent, then I agree that that is a 
precedent on precedent.
    Now, I don't want to leave the impression that stare 
decisis is an inexorable command because the Supreme Court has 
said that it is not, but it is a judgment that has to be based, 
taking into account all of the factors that are relevant and 
that are set out in the Supreme Court's cases.
    Chairman Specter. Judge Alito, during the confirmation 
hearing of Chief Justice Roberts, I displayed a chart. I do not 
ordinarily like charts, but this one I think has a lot of 
weight because it lists all 38 cases which have been decided 
since Roe, where the Supreme Court of the United States had the 
opportunity to--Senator Hatch is in the picture now.
    [Laughter.]
    Chairman Specter. It is a good photo op for Senator Hatch. 
Senator Leahy is complaining.
    [Laughter.]
    Senator Leahy. Just balance it on Orrin's head.
    Senator Hatch. Put that over by Leahy.
    Chairman Specter. He wants it on his side.
    [Laughter.]
    Chairman Specter. I think the point of it is that there 
have been so many cases, so many cases, 15 after your statement 
in 1985 that I am about to come to, and eight after Casey v. 
Planned Parenthood, which is why it has special significance, 
and I am not going to press the point about super precedent. I 
am glad I did not have to mention super duper, that you did. 
Thank you very much.
    Let me come now to the statement you made in 1985, that the 
Constitution does not provide a basis for a woman's right to an 
abortion. Do you agree with that statement today, Judge Alito?
    Judge Alito. Well, that was a correct statement of what I 
thought in 1985 from my vantage point in 1985, and that was as 
a line attorney in the Department of Justice in the Reagan 
administration.
    Today if the issue were to come before me, if I am 
fortunate enough to be confirmed and the issue were to come 
before me, the first question would be the question that we've 
been discussing, and that's the issue of stare decisis. And if 
the analysis were to get beyond that point, then I would 
approach the question with an open mind, and I would listen to 
the arguments that were made.
    Chairman Specter. So you would approach it with an open 
mind notwithstanding your 1985 statement?
    Judge Alito. Absolutely, Senator. That was a statement that 
I made at a prior period of time when I was performing a 
different role, and as I said yesterday, when someone becomes a 
judge, you really have to put aside the things that you did as 
a lawyer at prior points in your legal career and think about 
legal issues the way a judge thinks about legal issues.
    Chairman Specter. Judge Alito, coming to the role you had 
in the Solicitor General's Office, where you wrote the 
memorandum in the Thornburgh case, urging restriction and 
ultimate appeal of Roe, that was in your capacity as an 
advocate. And I have seen your other statements that the role 
of an advocate is different from the role of a judge. But when 
you made the statement that the Constitution did not provide 
for the right to an abortion, that was in a statement you made 
where you were looking to get a job, a promotion within the 
Federal Government. So there is a little difference between the 
1985 statement and your advocacy role in the Thornburgh 
memorandum, is there not?
    Judge Alito. Well, there is, Senator, and what I said was 
that that was a true expression of my views at the time, the 
statement in the 1985 appointment form that I filled out. It 
was a statement that I made at a time when I was a line 
attorney in the Department of Justice. I'm not saying that I 
made the statement simply because I was advocating the 
administration's position, but that was the position that I 
held at the time, and that was the position of the 
administration.
    Chairman Specter. Would you state your views, the 
difference as you see it between what you did as an advocate in 
the Solicitor General's Office to what your responsibilities 
would be, are on the Third Circuit, or what they would be on 
the Court if confirmed as a judicial capacity?
    Judge Alito. Well, an advocate has the goal of achieving 
the result that the client wants within the bounds of 
professional responsibility. That's what an advocate is 
supposed to do, and that's what I attempted to do during my 
years as an advocate for the Federal Government. Now, a judge 
doesn't have a client, as I said yesterday, and a judge doesn't 
have an agenda, and a judge has to follow the law. An important 
part of the law in this area, as we look at it in 2006, is the 
law of stare decisis.
    Chairman Specter. Judge Alito, you have written some 361 
opinions that I would like to have the time to discuss quite a 
few of them with you, but I am only going to pick up one in the 
first round, and that is an opinion you wrote in the Elizabeth 
Blackwell Health Center for Women v. Knoll, and that was a case 
where there was a challenge between a Pennsylvania statute, 
which required as a prerequisite to a woman getting Medicaid, 
that she would have had to have reported a rape or an incest to 
the police, and second, a requirement that there be a second 
opinion from a doctor that she needed an abortion to save her 
life. And that statutory requirement, those two provisions 
conflicted with a regulation by the Department of Health and 
Human Services. You were on the Third Circuit, which held that 
the Pennsylvania statute should be stricken in deference to the 
rule of the Health and Human Services Department. And Judge 
Nygaard entered a very forceful dissent saying that this was an 
interpretive rule and it was inappropriate to have that kind of 
an interpretive rule by the Department countervail a statute.
    What was your thinking in that case? Had you been 
predisposed to take a tough line on a woman's right to choose 
or on Medicaid support for someone who had been raped, you 
would have upheld the statute. What was your thinking in that 
case?
    Judge Alito. Well, what you said is correct, Senator. I 
cast the deciding vote there to strike down the Pennsylvania 
statute, and I did it because that's what I thought the law 
required. I thought the law required that we defer to the 
interpretation of the Federal statute that had been made by the 
Department of Health and Human Services. If I had had an agenda 
to strike down any--I'm sorry, to uphold any regulation of 
abortion that came up in any case that was presented to me, 
then I would have voted with Judge Nygaard in that case, and 
that would have turned the decision the other way.
    I've sat on three abortion cases on the Third Circuit. In 
one of them--that was the Casey case--I voted to uphold 
regulations of abortion, and in the other two--the Elizabeth 
Blackwell case and Planned Parenthood v. Farmer--I voted to 
strike them down. And in each instance, I did it because that's 
what I thought the law required.
    Chairman Specter. Judge Alito, I want to turn now to 
Executive power and to ask you first if you agree with the 
quotation from Justice Jackson's concurrence in the Youngstown 
Steel seizure case about the evaluation of Presidential power 
that I cited yesterday.
    Judge Alito. I do. I think it provides a very useful 
framework, and it has been used by the Supreme Court in a 
number of important subsequent cases, in the Dames and Moore, 
for example, involving the release of the hostages from Iran. 
And it doesn't answer every question that comes up in this 
area, but it provides a very useful way of looking at them.
    Chairman Specter. Do you agree with Justice O'Connor's 
statement quoted frequently yesterday from Hamdi that, ``We 
have long since made clear that a state of war is not a blank 
check for the President when it comes to the rights of the 
Nation's citizens,'' when she was citing the Youngstown case? 
Do you agree with that?
    Judge Alito. Absolutely. That's a very important principle. 
Our Constitution applies in times of peace and in times of war, 
and it protects the rights of Americans under all 
circumstances.
    Chairman Specter. You made a speech at Pepperdine where you 
said, in commenting about the decision of the Supreme Court in 
Ex Parte Milligan, that ``The Constitution applies even in an 
extreme emergency.'' The Government made a ``broad and unwise 
argument'' that the Bill of Rights simply doesn't apply during 
wartime.
    Do you stand by that statement?
    Judge Alito. I certainly do, Senator. The Bill of Rights 
applies at all times, and it's particularly important that we 
adhere to the Bill of Rights in times of war and in times of 
national crisis, because that's when there's the greatest 
temptation to depart from them.
    Chairman Specter. Steering clear, Judge Alito, of asking 
you how you would decide a specific case, I think it is very 
important to find out your jurisprudential approach in 
interpreting whether the September 14, 2001, congressional 
resolution authorizing the use of force constituted 
congressional authorization for the National Security Agency to 
engage in electronic surveillance where one party to the 
conversation was in the United States. Let me take just a 
moment to lay out the factual and legal considerations.
    The Foreign Intelligence Surveillance Act of 1978 provides 
it ``shall be the exclusive means by which electronic 
surveillance shall be conducted and the interpretation of 
domestic wire, oral, and electronic communications may be 
conducted.'' The Government contends that the Foreign 
Intelligence Surveillance Act clause, ``except as authorized by 
statute, opens the door to interpreting that resolution to 
authorize the surveillance.''
    Let me give you a series of questions. I don't like to put 
more than one on the table at a time, but I think they are 
necessary in this situation to give the structure as to where I 
am going.
    First, in interpreting whether Congress intended to amend 
FISA by that resolution, would it be relevant that Attorney 
General Gonzales said we were advised that ``that was not 
something we could likely get.''
    Second, if Congress had intended to amend FISA by the 
resolution, wouldn't Congress have specifically said so, as 
Congress did in passing the PATRIOT Act, giving the Executive 
greater flexibility in using roving wiretaps?
    Third, in interpreting statutory construction on whether 
Congress intended to amend FISA by the resolution, what would 
the relevance be of rules of statutory construction that repeal 
or change by implication--that changes by--makes the repeal by 
implication or disfavor, and specific statutory language trumps 
more general pronouncements? How would you weigh and evaluate 
the President's war powers under Article II to engage in 
electronic surveillance with the warrant required by 
congressional authority under Article I in legislating under 
the Foreign Intelligence Surveillance Act? And let me start 
with the broader principles.
    In approaching an issue as to whether the President would 
have Article II powers, inherent constitutional authority to 
conduct electronic surveillance without a wiretap, when you 
have the Foreign Intelligence Surveillance Act on the books, 
making that the exclusive means, what factors would you weigh 
in that format?
    Judge Alito. Well, probably the first consideration would 
be to evaluate the statutory question, and you outlined some of 
the factors and the issues that would arise in interpreting the 
statute, what is meant by the provision of FISA that you quoted 
regarding FISA--the Foreign Intelligence Surveillance Act--
being the exclusive means for conducting surveillance. And 
then, depending on how one worked through that statutory 
question, then I think one might look to Justice Jackson's 
framework. And he said that he divided cases in this area into 
three categories where the President acts with explicit or 
implicit congressional approval, where the President acts and 
Congress has not expressed its view on the matter one way or 
the other, and the final category where the President exercises 
Executive power and Congress--and that is in the face of an 
explicit or implicit congressional opposition to it. And 
depending on how one worked through the statutory issue, then 
the case might fall into one of those three areas.
    But these questions that you pose are obviously very 
difficult and important and complicated questions that are 
quite likely to arise in litigation, perhaps before my own 
court or before the Supreme Court.
    Chairman Specter. Before pursuing that further--and we will 
have a second round--I want to broach one other issue with you. 
My time is almost up. That is, in the memorandum you wrote back 
on February 5, 1986, about the President's power to put a 
signing statement on to influence interpretation of the 
legislation, you wrote this: ``Since the President's approval 
is just as important as that of the House or Senate, it seems 
to follow that the President's understanding of the bill should 
be just as important as that of Congress.''
    Is that really true when you say the President's views are 
as important as Congress's? The President can express his views 
by a veto and then gives Congress the option of overriding a 
veto, which Congress does not have if the President makes a 
signing declaration and seeks to avoid the terms of the 
statute. And we have the authority from the Supreme Court that 
the President cannot impound funds, cannot pick and choose on 
an appropriation. We have the line item veto case where the 
President cannot strike a provision even when authorized by 
Congress.
    Well, I have got 10 second left. I guess when my red light 
goes on, it does not affect you. You can respond. Care to 
comment?
    [Laughter.]
    Judge Alito. I do, Senator. I think the most important part 
of the memo that you are referring to is a fairly big section 
that discussed theoretical problems, and it consists of a list 
of questions, and many of the questions are the questions that 
you have just raised. In that memo, I said this is an 
unexplored area, and here are the theoretical questions that--
and, of course, they are of more than theoretical importance--
that arise in this area.
    That memo is labeled a rough first effort at stating the 
position of the administration. I was writing there on behalf 
of a working group that was looking into the question of 
implementing a decision that had already been made by the 
Attorney General to issue signing statements for the purpose of 
weighing in on the meaning of statutes. And in this memo--as I 
said, it was a rough first effort, and the biggest part of it, 
to my mind, was the statement there are difficult theoretical 
interpretive questions here and here they are. And had I 
followed up on it--and I don't believe I had the opportunity to 
pursue this issue further during my time in the Justice 
Department--it would have been necessary to explore all those 
questions.
    Chairman Specter. Well, my red light went on.
    Senator Leahy?
    Senator Leahy. Well, Judge, good morning.
    Judge Alito. Good morning, Senator.
    Senator Leahy. You survived yesterday listening to us. Now 
we have a chance to listen to you. I will have further 
questions on the memo that Senator Specter spoke of, but it 
gets beyond the theoretical. The last few weeks, we have seen 
it well played out in the press where the President and Senator 
John McCain negotiated rather publicly an amendment, which 
passed overwhelmingly in the House and the Senate, outlawing 
the use of torture by United States officers, yet the President 
in a signing statement implies that it will not apply to him or 
to those under his command as commander in chief. Doesn't that 
get well beyond a theoretical issue there?
    Judge Alito. It is, and I think I said in answering the 
Chairman that there are theoretical issues but they have 
considerable practical importance. But the theoretical issues 
really have to be explored and resolved. I don't believe the 
Supreme Court has done that up to this point. I have not had 
occasion in my 15-plus years on the Third Circuit to come to 
grips with the question of what is the significance of a 
Presidential signing statement in interpreting a statute.
    Senator Leahy. Let me follow with a related issue. I feel 
one of the most important functions of the Supreme Court is to 
stop our Government from intruding into Americans' privacy or 
our freedom or our personal decisions. In my State of Vermont, 
we value our privacy very, very much. I think most Americans do 
automatically, and many times they have to go to the courts to 
make sure that the Government does not--whatever part of the 
Government it is, whatever administration it might be--that 
they do not overreach in going into that privacy.
    Three years ago, the Office of Legal Counsel at the Justice 
Department--and you are familiar with that; you worked there 
years ago--they issued a legal opinion, which they kept very 
secret, in which they concluded that the President of the 
United States had the power to override domestic and 
international laws outlawing torture. It said the President 
could override these laws outlawing torture.
    They tried to redefine torture, and they asserted, I quote, 
that the President enjoys ``complete authority over the conduct 
of war,'' and they went on further to say that if Congress 
passed a criminal law prohibiting torture ``in a manner that 
interferes with the President's direction of such core matters 
as detention and interrogation of enemy combatants,'' that 
would be unconstitutional. They seemed to say that the 
President could immunize people from any prosecution if they 
violated our laws on torture. And that remained the legal basis 
in this administration until somebody apparently at the Justice 
Department leaked it to the press and it became public. Once it 
became public, with the obvious reaction of Republicans, 
Democrats, everybody saying this is outrageous, it is beyond 
the pale, the administration withdrew that opinion as its 
position. The Attorney General even said in his confirmation 
that this no longer--no longer--represented Bush administration 
policy.
    What is your view--and I ask this because the memo has been 
withdrawn. It is not going to come before you. What is your 
view of the legal contention in that memo that the President 
can override the laws and immunize illegal conduct?
    Judge Alito. Well, I think the first thing that has to be 
said is what I said yesterday, and that is that no person in 
this country is above the law, and that includes the President 
and it includes the Supreme Court. Everybody has to follow the 
law, and that means the Constitution of the United States and 
it means the laws that are enacted under the Constitution of 
the United States.
    Now, there are questions that arise concerning Executive 
powers, and those specific questions have to be resolved, I 
think, by looking to that framework that Justice Jackson set 
out that I mentioned earlier.
    Senator Leahy. Well, let's go into one of those specifics. 
Do you believe the President has the constitutional authority 
as commander in chief to override laws enacted by Congress and 
to immunize people under his command from prosecution if they 
violate these laws passed by Congress?
    Judge Alito. Well, if we were in--if a question came up of 
that nature, then I think you'd be in where the President is 
exercising Executive power in the face of a contrary expression 
of congressional will through a statute or even an implicit 
expression of congressional will. You would be in what Justice 
Jackson called ``the twilight zone,'' where the President's 
power is at its lowest point, and I think you would have to 
look at the specifics of the situation. These are the gravest 
sort of constitutional questions that come up, and very often 
they don't make their way to the judiciary or they are not 
resolved by the judiciary. They are resolved by the other 
branches of the Government.
    Senator Leahy. But, Judge, I am a little bit troubled by 
this because you suggested, and I completely agreed with what 
you said, that no one is above the law and no one is beneath 
the law. You are not above the law, I am not, the President is 
not. But are you saying that there are situations where the 
President not only could be above the law passed by Congress, 
but could immunize others, thus putting them above the law?
    I mean, listen to what I am speaking to specifically. We 
passed a law outlawing certain conduct. The President in his 
Bybee memo, which has now been withdrawn, was saying that that 
law won't apply to me or people that I authorize. doesn't that 
place not only the President but anybody he wants above the 
law?
    Judge Alito. Senator, as I said, the President has to 
follow the Constitution and the laws and, in fact, one of the 
most solemn responsibilities of the President--and it is set 
out expressly in the Constitution--is that the President is to 
take care that the laws are faithfully executed, and that means 
the Constitution, it means statutes, it means treaties, it 
means all of the laws of the United States.
    But what I am saying is that sometimes issues of Executive 
power arise and they have to be analyzed under the framework 
that Justice Jackson set out. And you do get cases that are in 
this twilight zone and it is--they have to be decided when they 
come up based on the specifics of the situation.
    Senator Leahy. But are you saying that there could be 
instances where the President could not only ignore the law, 
but authorize others to ignore the law?
    Judge Alito. Well, Senator, if you are in that situation, 
you may have a question about the constitutionality of a 
congressional enactment. You have to know the specifics of--
    Senator Leahy. Let's assume there is not a question of the 
constitutionality of the enactment. Let's make it an easy one. 
We pass a law saying it is against the law to murder somebody 
here in the United States. Could the President authorize 
somebody, either from an intelligence agency or elsewhere, to 
go out and murder somebody and escape prosecution or immunize 
the person from prosecution, absent a Presidential pardon?
    Judge Alito. Neither the President nor anybody else, I 
think, can authorize someone to--can override a statute that is 
constitutional. And I think you are in this--when you are in 
the third category, under Justice Jackson, that is the issue 
which you are grappling with.
    Senator Leahy. But wouldn't it be constitutional for the 
Congress to outlaw Americans from using torture?
    Judge Alito. And Congress has done that, and it is 
certainly an expression of a very deep value of our country.
    Senator Leahy. And if the President were to authorize 
somebody to torture or say that he would immunize somebody from 
prosecution for doing that, he wouldn't have that power, would 
he?
    Judge Alito. Well, Senator, I think the important points 
are that the President has to follow the Constitution and the 
laws, and it is up to Congress to exercise its legislative 
power. But as to specific issues that might come up, I really 
need to know the specifics. I need to know what was done and 
why it was done, and hear the arguments on the issue.
    Senator Leahy. Let's go to some specifics. Senator Specter 
mentioned FISA and your role with FISA, the Foreign 
Intelligence Surveillance Act. Certainly, you had to be 
involved with it, and appropriately so, when you were a U.S. 
Attorney. This law came in after the abuses of the 1960s and 
1970s. We had had President Nixon's enemies list, with the 
government breaking into doctors' offices and wiretapping 
innocent Americans, and so on. After that, the Congress in a 
strong bipartisan effort passed the FISA legislation. We have 
that court which can handle applications in secret for wiretaps 
or surveillance, if necessary, for national security.
    Now, we have just learned that the President has chosen to 
ignore the FISA law and the FISA court. He has issued secret 
orders, and according to the press and the President's own 
press conference, time after time after time secret orders for 
domestically spying on American citizens without obtaining a 
warrant.
    Do you believe the President can circumvent the FISA law, 
and bypass the FISA court to conduct warrantless spying on 
Americans?
    Judge Alito. The President has to comply with the Fourth 
Amendment and the President has to comply with the statutes 
that are passed. This is an issue I was speaking about with 
Chairman Specter that I think is very likely to result in 
litigation in the Federal courts. It could be in my court. It 
certainly could get to the Supreme Court and there may be 
statutory issues involved--the meaning of the provision of FISA 
that you mentioned, the meaning certainly of the authorization 
for the use of military force--and those would have to be 
resolved.
    And in order to resolve them, I would have to know the 
arguments that are made by the contending parties. On what 
basis is it claimed that there is a violation? On what basis 
would the President claim that what occurred fell within the 
authorization of the authorization for the use of military 
force? And then if you got beyond that, there could be 
constitutional questions about the Fourth Amendment, whether it 
was a violation of the Fourth Amendment, whether it was the 
valid exercise of Executive power.
    Senator Leahy. But wouldn't the burden be on the Government 
to prove that it wasn't a violation of the Fourth Amendment if 
you were spying on Americans without a warrant, especially when 
you have courts set up--in this case the FISA court, which sets 
up a very easy procedure to get the warrant? Wouldn't the 
burden be on the Government in that case?
    Judge Alito. Well, Senator, I think the in first instance 
the Government would have to come forward with its theory as to 
why the actions that were taken were lawful. I think that is 
correct.
    Senator Leahy. Well, let me ask you another one. You are 
saying this may come before the Third Circuit or could come 
before the Supreme Court, and I will accept that. But how does 
somebody even get there? If you are conducting illegal secret 
spying on a person, how are they even going to know? Where are 
they going to get the standing to sue?
    Judge Alito. Certainly, if someone is the subject of a 
search and they claim that the search violates a statute or it 
violates the Constitution, then they would have standing to sue 
and they could sue in a Federal court that had jurisdiction.
    Senator Leahy. And I am not asking these as hypothetical 
questions, Judge. People are getting very concerned about this. 
We just found out, again not because the Government told us, 
but because the press found out about it--and thank God that we 
do have a free press because so much of the stuff that is 
supposed to be reported to Congress never is, and we first hear 
about it when it is in the press.
    But we found out that the Department of Defense is going 
around--and this makes me think of COINTELPRO during the 
Vietnam War--they are going around the country photographing 
and spying on people who are protesting the war in Iraq. They 
went, according to the press, and spied on Quakers in Vermont.
    Now, I don't know why they spent all that money to do that. 
If they want to find a Vermonter protesting the war, turn on C-
SPAN. I do it on the Senate floor all the time. But I know some 
of these Quakers. I mean, in the Quaker tradition, they have 
been protesting war throughout this country's history.
    Now, I worry about this culture we are getting, and I just 
want to make sure since Congress is not going to stand up and 
say no, and the administration certainly is authorizing this--I 
want to make sure that the courts are going to say we will 
respect your privacy, we will respect your Fourth Amendment 
rights.
    You know, if you have somebody who has been spied on, would 
you agree--and I think you did, but I want to make sure I am 
correct on this--do you agree that they should have a day in 
court?
    Judge Alito. Certainly. If someone has been the subject of 
illegal law enforcement activities, they should have a day in 
court and that is what the courts are there for, to protect the 
rights of individuals against the government and to--or anyone 
else who violates their rights. And they have to be absolutely 
independent and treat everybody equally.
    Senator Leahy. And those Fourth Amendment rights are pretty 
significant, are they not?
    Judge Alito. They are very significant.
    Senator Leahy. I think they set us apart from most other 
countries in the world, to our betterment. And you were a 
prosecutor; I was a prosecutor. I think we can agree even 
looking of our past professions that it protects us.
    Judge Alito. I agree, Senator. I tried to follow what the 
Fourth Amendment required when I was a prosecutor and I regard 
it as very important.
    Senator Leahy. Well, let me go back to the last time we saw 
Government excesses like this before FISA. When you worked in 
the Reagan administration, you argued to the Supreme Court that 
President Nixon's Attorney General should have absolute 
immunity for domestic spying without a warrant even in the case 
of willful misconduct. In your memo you said, ``I do not 
question that the Attorney General should have immunity, but 
for tactical reasons I would not raise the issue here.''
    Do you believe today that the Attorney General would be 
absolutely immune from civil liability for authorizing 
warrantless wiretaps?
    Judge Alito. No, he would not. That was settled in that 
case. The Supreme Court held that the Attorney General does not 
have--
    Senator Leahy. But you did believe so then?
    Judge Alito. Actually, I recommended that that argument not 
be made. It was made and I think it is important to understand 
the context of that. First of all--
    Senator Leahy. You did say in the memo, ``I do not question 
that the Attorney General should have this immunity.''
    Judge Alito. That is correct, and the background of that, 
if I could just explain very briefly--
    Senator Leahy. Sure.
    Judge Alito [continuing]. Is that we were--there, we were 
not just representing the Government; we were representing 
former Attorney General Mitchell in his individual capacity. He 
was being sued for damages and we were, in a sense, acting as 
his private attorney. And this was an argument that he wanted 
to make. This was an argument that had been made several times 
previously by the Department of Justice during the Carter 
administration and then just a couple of years earlier in 
Harlow v. Fitzgerald in the Reagan administration. And I said I 
didn't think it was a good idea to make the argument in this 
case, but I didn't dispute that it was an argument that was 
there.
    Senator Leahy. You don't have any question that the 
judiciary has a role to play here and there can be judicial 
checks on such things?
    Judge Alito. No. Absolutely, it is the job of the judiciary 
to enforce the Constitution.
    Senator Leahy. Let's go into a couple search cases, and I 
think we have indicated to you that we would bring these up--
Doe v. Groody, Baker v. Monroe Township. Those are unauthorized 
searches. In Doe, the police officers had a warrant for a man 
at a certain address. When they arrived, they found his wife 
and 10-year-old daughter. They were not in the warrant, they 
posed no threat. But the officers detained them and strip-
searched them, the wife and the 10-year-old, the 10-year-old 
girl.
    In Baker, a mother and her three teenage children were 
detained and searched when they arrived at the home of the 
mother's adult son. They didn't live there. They were not in 
the home. They were outside. They didn't pose a threat to the 
police, but they were ordered at gunpoint to lie on the ground. 
They were handcuffed, they were taken into the house and they 
were searched.
    In Doe, the strip-search case of the 10-year-old girl, the 
officers didn't ask for permission to search anybody beyond the 
man they were looking for. In fact, the magistrate didn't give 
a search warrant for anybody else. But you went beyond that and 
you said that they were justified in strip-searching this 10-
year-old and the mother. You went beyond the four corners of 
the search warrant the magistrate gave.
    And one of your members of the Third Circuit, Judge 
Chertoff, who is now the head of Homeland Security and a former 
prosecutor, criticized your reasoning. He said that it would 
come dangerously close to displacing the critical role of the 
independent magistrate.
    Do you continue to hold the position you took in your 
opinion or do you now agree with the majority that they are 
right and you are wrong?
    Judge Alito. Well, Senator, I haven't had occasion to think 
that what I said in that case was correct, but let me just 
explain what was going on there.
    Senator Leahy. Sure.
    Judge Alito. The issue there was whether--the first issue 
was whether the warrant authorized the search of people who 
were on the premises and that was the disagreement between me 
and the majority and it was a rather technical issue about 
whether the affidavit that was submitted by police officers was 
properly incorporated into the warrant for the purposes of 
saying who could be searched.
    And I thought that it was, and I thought that it was quite 
clear that the magistrate had authorized a search for people 
who were on the premises. That was the point of disagreement. I 
was not pleased that a young girl was searched in that case and 
I said so in my opinion. That was an undesirable thing, but the 
issue wasn't whether there should be some sort of rule of 
Fourth Amendment law that a minor can never be searched. And I 
think if we were to--
    Senator Leahy. But we both agree on that, Judge. The only 
reason I bring up these two cases is it seems in both of them 
you went beyond the four corners of the search warrant and you 
settled all issues in a light most favorable--the majority in 
the opinion didn't, but you did--in a light most favorable to 
law enforcement. In fact, in Baker, the majority said that.
    And I worry about this because I always worry that the 
courts must be there to protect individuals against an 
overreaching government. In this case, your position in the 
minority was that you protected what the majority felt was an 
overreaching government.
    Am I putting too strong an analysis on that?
    Judge Alito. I do think you are, Senator.
    Senator Leahy. OK.
    Judge Alito. I think you need to take into account what was 
going on here. The police officers prepared an affidavit and 
they said we have probable cause to believe that this drug 
dealer hides drugs on people who are on the premises. And 
therefore, when we search, we want authorization not just to 
search him, but to search everybody who is found on the 
premises because we think he hides--we have reason to believe 
he hides drugs there.
    And the magistrate who issued the warrant said that the 
affidavit was incorporated into the warrant for the purpose of 
establishing probable cause. And we are supposed to read 
warrants in a common-sense fashion because they are prepared by 
police officers for the most part, not by lawyers, and they are 
often prepared under a lot of time pressure.
    And it seemed to me that, reading this in a common-sense 
fashion, what the magistrate intended to do was to say, yes, 
you have authorization to do what you ask us to do. But even 
beyond that, the issue there was whether these police officers 
could be sued for damages, and they couldn't be sued for 
damages if a reasonable officer could have believed that that 
is what the magistrate intended to authorize. And I thought 
that surely a reasonable officer could view it that way. Now, 
Judge Chertoff looked at it differently and there are cases 
where reasonable people disagree, and that is all that was 
going on.
    Senator Leahy. I know. You look for what a reasonable 
officer would think--I spent 8 years in law enforcement. I 
don't know where any reasonable officer under those 
circumstances would feel they could strip-search a 10-year-old 
girl.
    Let me go into another area, and it is one that touched me 
in your statement yesterday. You spoke eloquently of your 
father's experience when he came to this country. The reason it 
touched me is I was thinking that, when my maternal 
grandparents emigrated to America, to Vermont, speaking only 
Italian, coming from Italy to a new country, I know some of the 
problems they faced--these people speaking this strange 
language. My mother was a child learning English when she went 
to school. People asking, ``Why don't they speak like us? Why 
are they different than us''; those were just some of the 
obstacles they faced.
    In my father's case, my paternal grandfather, whom I never 
knew, named Patrick Leahy, died as a stonecutter in Barre, 
Vermont. My father was a young teen and had to go to work to 
support his mother, my grandmother, whom I also never knew. And 
the signs then were ``No Irish Need Apply'' or ``No Catholics 
Need Apply.'' And I think you and I would be in total agreement 
that we are now at a different world in at least most of our 
country and that we are better people because we have done away 
with that.
    What we both understand, I think, in our core, I would 
hope, is what happens if you have either ethnic prejudice or 
religious prejudice. In my case, my father was a self-taught 
historian, but he never was able to finish high school. I was 
the first Leahy to get a college degree, my sister the next 
one.
    So with that in mind, there was something in your 
background that I was troubled with. That is the Concerned 
Alumni of Princeton University, CAP. This was a group that 
received attention because it was put together, but it resisted 
the admission of women and minorities to Princeton. They were 
hostile to what they felt were people that did not fit 
Princeton's traditional mold--women and minorities.
    Now, two prominent Princetonians--one, Bill Frist, who is 
now the Majority Leader of the United States Senate, in a 
committee, roundly criticized CAP. Bill Bradley, who had joined 
it and then found out what it was, left it, and roundly 
criticized it. And yet you, proudly in 1985, well after this 
criticism, in your job application, proudly wrote that you were 
a member of it, a member of Concerned Alumni of Princeton 
University, a conservative alumni group.
    Why, in heaven's name, Judge, with your background and what 
your father faced, why in heaven's name are you proud of being 
part of CAP?
    Judge Alito. Well, Senator, I have racked my memory about 
this issue, and I really have no specific recollection of that 
organization. But since I put it down on that statement, then I 
certainly must have been a member at that time. But if I had 
been actively involved in the organization in any way, if I had 
attended meetings or been actively involved in any way, I would 
certainly remember that, and I don't.
    I have tried to think of what might have caused me to sign 
up for membership, and if I did, it must have been around that 
time. And the issue that had rankled me about Princeton for 
some time was the issue of ROTC. I was in ROTC when I was at 
Princeton, and the unit was expelled from the campus. And I 
felt that was very wrong. I had a lot of friends who were 
against the war in Vietnam, and I respected their opinions, but 
I didn't think that it was right to oppose the military for 
that reason. And the issue, although the Army unit was 
eventually brought back, the Navy and the Air Force units did 
not come back, and the issue kept coming up. And there were 
people who were strongly opposed to having any unit on campus, 
and the attitude seemed to be that the military was a bad 
institution and that Princeton was too good for the military, 
and that Princeton would somehow be sullied if people in 
uniform were walking around the campus, that the courses didn't 
merit getting credit, that the instructors shouldn't be viewed 
as part of the faculty. And that was the issue that bothered me 
about that.
    Senator Leahy. But, Judge, with all due respect, CAP was 
most noted for the fact that they were worried that too many 
women and too many minorities were going to Princeton. In 1985, 
when everybody knew that is what they stood for, when a 
prominent Republican like Bill Frist and a prominent Democrat 
like Bill Bradley, both had condemned it, you, in your job 
application, proudly stated this as one of your credentials.
    Now, you strike me as a very cautious and careful person, 
and I say that with admiration, because a judge should be. But 
I cannot believe that at 35, when you are applying for a job, 
that you are going to be anything less than careful in putting 
together such a job application, and frankly, I do not know why 
that was a matter of pride for you at that time.
    My time is up. We will come back to this. I have other 
questions.
    Judge Alito. Well, Senator, as you said, from what I now 
know about the group, it seemed to be dedicated to the idea of 
bringing back the Princeton that existed at a prior point in 
time, and as you said, somebody from my background would not 
have been comfortable in an institution like that, and that 
certainly was not any part of my thinking in whatever I did in 
relation to this group.
    Senator Leahy. Or my background either, Judge, or my 
background either.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch?
    Senator Hatch. Welcome, Judge Alito. We appreciate you and 
the service that you have given, but much has been made about 
your membership in an organization called the Concerned Alumni 
of Princeton. Now, you mentioned this organization in your 1985 
job application for a position in President Reagan's 
administration. And you have told us what you felt--you know 
about your membership in that organization. So is it fair to 
say that you were not a founding member?
    Judge Alito. I certainly was not a founding member.
    Senator Hatch. You were not a board member?
    Judge Alito. I was not a board member.
    Senator Hatch. Or, for that matter, you were not even an 
active member of the organization, to the best of your 
recollection?
    Judge Alito. I don't believe I did anything that was active 
in relation to this organization.
    Senator Hatch. Now, some have suggested, as my friend from 
Massachusetts did yesterday, that by your membership in this 
organization, you are somehow against the rights of women and 
minorities attending colleges. So let me just ask you directly 
on the record: Are you against women and minorities attending 
colleges?
    Judge Alito. Absolutely no, Senator, no.
    Senator Hatch. I felt that that would be your answer. I 
really did.
    [Laughter.]
    Senator Leahy. Tough question, Orrin. Tough question.
    Senator Hatch. It is a good question, though. It is one 
that kind of overcomes the implications that you were.
    Judge Alito. Senator, I had never attended a non-
coeducational school until I went to Princeton, and after I was 
there a short time, I realized the benefits of attending a co-
educational school.
    [Laughter.]
    Senator Hatch. Now, I am glad that you mentioned in your 
opening statement yesterday that a decade earlier, a person 
like yourself--and by this, I assume you meant someone of 
Italian ancestry.
    Judge Alito. I do, Senator, and someone not from any sort 
of exalted economic status.
    Senator Hatch. Modest background, son of an immigrant 
father, and a person who had gone to public school and might 
not have been fully welcomed sometimes at Princeton at that 
time. Now, people like me are not even sure of what an eating 
club is, but it sure as heck does not sound like a cafeteria.
    Judge Alito. No. It's something like a fraternity, except 
it's just a facility. It's a private facility where students 
eat. Traditionally, they were selective. They had a process 
like Vicker and they chose people that they thought fit in with 
the group.
    Senator Hatch. Sure.
    Judge Alito. And I did not choose to belong to an eating 
club. I belonged to a university facility called Stevenson 
Hall, which was named after Adlai Stevenson, and it was one of 
the most co-educational facilities on the campus. It was not 
selective. It was attractive to me because a lot of faculty 
members went there for lunch. There was a master who lived on 
the facility with his family, and it was an opportunity at 
dinner and lunch to talk to faculty members.
    Senator Hatch. Well, much has been written about the just 
and egalitarian changes that took place at Princeton and other 
elite institutions in the 1960s, making them more welcoming to 
persons without an elite background. It has been alleged by 
some--most prominently, I might add, by a Democratic witness 
who was withdrawn at the last minute because of some 
politically embarrassing comments that he made--that your 
membership in this group demonstrates your desire to maintain 
some old boys' network to the detriment of women and 
minorities. Could you comment on that particular suggestion?
    Judge Alito. I certainly had no such desire, and I think 
that what I did when I was a student at Princeton and my 
activities since then illustrate that.
    As I said, when I was at Princeton, I was a member of this 
university facility, and it was open to everybody, and it was 
one of the most co-educational facilities on the campus. And 
since graduating, I have actually been involved in a way in the 
admissions process. I was on the Schools Committee for a number 
of years and interviewed applicants to Princeton, and I think 
that shows my attitude toward the general way in which the 
university has been run.
    Senator Hatch. Well, ROTC programs are an excellent 
opportunity for young men and women to attend college and to 
serve their country through service in the armed forces. Now, 
there are actually more military officers who were ROTC 
students than went to West Point, the Naval Academy, or the Air 
Force Academy. Now, that includes the eminent Colin Powell.
    Now, you were a member of the ROTC; is that true?
    Judge Alito. I was, Senator.
    Senator Hatch. You were a proud member of the ROTC.
    Judge Alito. I was.
    Senator Hatch. Did you enjoy your time in the ROTC and in 
the Army afterward?
    Judge Alito. I was proud to be a member, and the unit was 
thrown off the campus after--well, the decision was made 
shortly after I joined the ROTC, and so I attended the ROTC 
classes on the campus during my junior year, but during my 
senior year the unit had been expelled from the campus, and I 
had to go to Trenton State College occasionally to finish up my 
ROTC work.
    Senator Hatch. I heard a report yesterday that the ROTC 
building on the Princeton campus was actually firebombed at 
about the same time that American servicemen of college age 
were fighting in Vietnam. Is that accurate?
    Judge Alito. That's correct. It was very extensively 
damaged.
    Senator Hatch. Was anybody injured?
    Judge Alito. I don't recall that anybody was injured, but 
certainly there's a serious risk of injury whenever an arson 
takes place.
    Senator Hatch. Now, Judge Alito, some Senators and left-
wing activist groups have focused on one case involving the 
Vanguard Company, claiming that your consideration of that case 
amounts to some kind of ethical lapse. Now, I would observe 
that the universal opinion is that you have unquestioned 
integrity and a record that is above reproach. I know we will 
hear from the American Bar Association later this week, but I 
know their highest rating includes the highest marks for 
integrity. In fact, I have a copy of their recommendations 
here.
    On the issue of integrity, it says, ``The matter of 
integrity is self-defining. A nominee's character and general 
reputation in the legal community are investigated, as are his 
or her industry and diligence. Judge Alito enjoys an excellent 
reputation for integrity and character, notwithstanding a 
widespread awareness of the Vanguard and Smith Barney recusal 
issues. During his personal interview with us, Judge Alito was 
asked about the recusal matter in detail, and he acknowledged 
at length that he takes the matter of recusal very seriously 
and that the cases had `slipped through' the court's screening 
process.''
    I won't read the whole matter, but let me just go toward 
the end. ``Judge Alito explained to the satisfaction of the 
Standing Committee the special circumstances that resulted in 
the screen not working or otherwise not being applied in these 
limited matters''--that is, the screening of cases--``and he 
further accepted responsibility for the errors. We accept his 
explanation and do not believe these matters reflect adversely 
on him. To the contrary, consistent and virtually unanimous 
comment from those interviewed included `He has the utmost 
integrity'; `he is a straight shooter, very honest, and calls 
them as he sees them'; `his reputation is impeccable'; `you can 
find no one with better integrity'; `his integrity and 
character are of the highest caliber'; `he is completely 
forthright and honest'; `his integrity is absolutely 
unquestionable'; `he is a man of great integrity.' ''
    ``On the basis of our interviews with Judge Alito with well 
over 300 judges, lawyers, and members of the legal community 
nationwide, all of whom know Judge Alito professionally, the 
Standing Committee concluded that Judge Alito is an individual 
of excellent integrity.''
    Now, the reason I want to go into this is to kind of get 
rid of this problem that I think is as phony as anything I have 
ever seen in my time around here. Like I say, this case has 
been written about or reported on for weeks in bits and pieces 
so that getting a clear picture of the facts is indeed a 
challenge, let alone getting a clear picture of the ethical 
issues involved as well. And I know you have not had a chance 
to respond to any of it publicly, so I want to give you that 
chance now.
    Now, please take a few minutes and briefly describe the 
facts of the case, and then I have a few questions on the 
issues that are raised by the case.
    Judge Alito. Thank you, Senator, and I appreciate the 
opportunity to address this because a lot has been said about 
it and very little by me. And I think that once the facts are 
set out, I think that everybody will realize that in this 
instance I not only complied with the ethical rules that are 
binding on Federal judges--and they're very strict--but also 
that I did what I have tried to do throughout my career as a 
judge, and that is to go beyond the letter of the ethics rules 
and to avoid any situation where there might be an ethical 
question raised.
    And this was a case where--this is a case that came up in 
2002, 12 years after I took the bench, and I acknowledge that 
if I had to do it over again, there are things that I would 
have done differently. And it's not because I violated any 
ethical standard, but it's because when this case first came 
before me, I did not focus on the issue of recusal and apply my 
own personal standard, which is to go beyond what the code of 
conduct for judges requires.
    This was a pro se case, and we take our pro se cases very 
seriously.
    Senator Hatch. By pro se, explain that.
    Judge Alito. It's a case where the plaintiff was not 
represented by a lawyer. She was representing--she was 
representing--
    Senator Hatch. Paying for her own counsel and represented 
herself.
    Judge Alito. She represented herself initially, and we take 
those very seriously. We give those just as much 
consideration--in fact, more consideration in many respects 
than we do with the cases without lawyers because we take into 
account that somebody who's representing himself or herself 
can't be expected to comply with all the legal technicalities.
    But for whatever reason, our court system for handling the 
monitoring of recusals in these pro se cases is different from 
the system that we use in the cases with lawyers. And maybe 
that's because recusal issues don't come up very often in pro 
se cases. But, in any event, in a case with a lawyer, before 
the case is ever sent to us, we receive what are known as 
clearance sheets, and those are--it's a stack of papers and it 
lists all the cases that the clerk's office is thinking of 
sending to us. It lists the parties in each case, and it lists 
the lawyers in each case. And it says, ``Do you need to recuse 
yourself in any of these cases?'' And this is the time when the 
judges and this is the time when I focus on the issue of 
recusal, and I look at each case. I look at the parties. I look 
at the lawyers. And I ask myself: Is there a reason why I 
should not participate in the case?
    Now, because this case, the Monga case, was a pro se case, 
it didn't come to me with clearance sheets. I just received the 
briefs, and it had been through our staff attorneys' office. 
They take a first look at the pro se cases, and they try to 
make sure--they try to translate the pro se arguments into the 
sort of legal arguments that lawyers would make to help the pro 
se litigants. And they give us a recommended disposition and a 
draft opinion.
    And when this came to me, I just didn't focus on the issue 
of recusal, and I sat on the initial appeal in the case. And 
then after the case was decided, I received a recusal motion. 
And I was quite concerned because I take my ethical 
responsibilities very seriously.
    So I looked into the question of whether I was required 
under the code--because I just wanted to see where the law was 
on this. Was I required under the code of conduct to recuse 
myself in this case? And it seemed to me that I was not. And a 
number of legal experts, experts on legal ethics, have now 
looked into this question, and their conclusion is no, I was 
not required to recuse.
    But I didn't stand on that because of my own personal 
policy of going beyond what the code requires, so I did recuse 
myself. And not only that, I asked that the original decision 
in the case be vacated, that is, wiped off the books and that 
the losing party in the case, the appellant, Ms. Monga, be 
given an entirely new appeal before an entirely new panel. And 
that was done.
    I wanted to make sure that she did not go away from this 
case with the impression that she had gotten anything less than 
an absolutely fair hearing. And then beyond that, I realized 
that the fact that this has slipped through in a pro se case 
pointed to a bigger problem, and that was the absence of 
clearance sheets.
    So since that time, I have developed my own forms that I 
use in my own chambers, and for pro se cases now, there is--I 
have a red sheet of paper printed up, and it is red so nobody 
misses it. And when a pro se case comes in, it initially goes 
to my law clerks, and they prepare a clearance sheet for me in 
that case, and then they do an initial check to see whether 
they spot any recusal problem. And if they don't, then there's 
a space at the bottom where they initial it. And then it comes 
to me, and there's a space at the bottom for me to initial to 
make sure that I focus on the recusal problem. And in very bold 
print at the bottom of the sheet for my secretary, it says, 
``No vote is to be sent in in this case unless this form is 
completely filled out.''
    So there are a number of internal checks now in my own 
office to make sure that I follow my own policy of going beyond 
what the code requires.
    Senator Hatch. In other words, there was never any 
possibility of you benefiting financially no matter how that 
case came out. Is that right?
    Judge Alito. Absolutely no chance.
    Senator Hatch. And you actually did recuse yourself when 
the question was eventually raised, even though you didn't have 
to.
    Judge Alito. That's correct, Senator.
    Senator Hatch. Did you genuinely feel that you were either 
legally or ethically required to recuse under those 
circumstances?
    Judge Alito. I did not think the code required--
    Senator Hatch. You were just going beyond, which has been 
your philosophy and--
    Judge Alito. That's right.
    Senator Hatch [continuing]. Ethical response, your personal 
ethical approach to it.
    Well, your own conclusion certainly is supported by the 
independent ethics experts that you mentioned who have recently 
examined this case. I know one of them is Professor Geoffrey 
Hazard from the University of Pennsylvania. That name stuck out 
in particular because I remember when a financial conflict of 
interest issue arose in connection with the nomination of 
Supreme Court Justice Stephen Breyer. In 1994, Senator Kennedy 
and I, we strongly defended the Breyer nomination. I did, too. 
And during the hearings, Senator Kennedy highlighted a letter 
from Professor Geoffrey Hazard to answer Justice Breyer's 
critics.
    Well, Professor Hazard has examined this matter, and 
concluded that you, Judge Alito, handled it, in his words, 
``quite properly.''
    Now, Mr. Chairman, I would like to put not only Professor 
Hazard's letter into the record, but the letter of Steven 
Lubet, Thomas Morgan, and Professor Ronald Rotunda, all of whom 
found that you made no ethical mistakes.
    Chairman Specter. Without objection, all will be made a 
part of the record.
    Senator Hatch. And let me just observe that these are all 
top ethics experts in our country today, and, you know, I have 
to say that Rotunda--or Morgan, of the George Washington 
University Law School, he happens to be the co-author of the 
Nation's most widely read ethics textbook. Now, he was blunt in 
his assessment saying that there was simply no basis for 
suggesting that you did anything improper. So I am glad to put 
those in the record.
    Now, you actually did more than simply recusing yourself in 
this case. As you have explained, you even set up a special 
system to make sure that, you know, there never is going to be 
a question about this. And so you went farther than you were 
legally or ethically mandated to do.
    Judge Alito. I did, Senator, and that is what I have tried 
to do throughout my time on the bench.
    Senator Hatch. Now, when the new panel of judges looked at 
this case, how did they rule?
    Judge Alito. They ruled the same way that we had, and we 
had ruled the same way that the district court did.
    Senator Hatch. OK. So let me just clarify this one more 
time, and you tell me if this accurately describes the 
situation. You did not believe that you were ethically or 
legally required to recuse yourself in this case. All the 
ethics experts agree with you. Yet you recused yourself anyway 
when the issue was raised. The party raising the issue got an 
entirely new hearing before a new and different panel of 
judges, who ruled the same way that you did originally.
    Does that about sum it up?
    Judge Alito. That's correct, Senator.
    Senator Hatch. Well, I have to say, Judge, that you went 
above and beyond your ethical duties here, and I think you are 
to be applauded, not to be criticized, for your rigorous 
attention to judicial impartiality and integrity.
    Now, let me just go into another matter here before I 
finish here. Some Supreme Court nominees have had legislative 
experience. The Justice you will replace, Justice O'Connor, 
served in the Arizona State Senate. Justice Breyer was chief 
counsel to Senator Kennedy when he chaired this Committee. I 
have tremendous respect for both of them.
    Judge Alito, you have had no legislative experience, and 
there are those of us who are concerned that your many years of 
experience in the executive branch may have biased you in favor 
of Executive power, or at least some feel that way and that 
that is a possibility.
    Yesterday, one of my Democratic colleagues claimed that 
your instincts are to defer to the Executive, to grant 
prosecutors whatever power they seek, that sort of thing. I 
suppose that in 15 years on the appeals court you have 
participated in what I would estimate at nearly 5,000 cases. 
You have had many opportunities to review challenges to 
Executive power. Is that correct?
    Judge Alito. I have, yes.
    Senator Hatch. Well, I am thinking of cases such as United 
States v. Kithcart, where you reversed a criminal conviction 
because the police lacked probable cause for a search, or 
Bolden v. Southeastern Pennsylvania Transportation Authority, 
where you ruled for a former maintenance custodian for a public 
transportation agency, concluding that the Fourth Amendment 
barred a suspicionless drug test.
    I want to make it clear that simply giving such examples of 
results on the other side of the ledger does not by itself 
prove that you are a good judge or a bad judge. Without also 
talking about the facts and the law in each case, merely 
tabulating winners and losers does not offer much. But since my 
colleagues on the other side occasionally have their tally 
sheets and actually some have even claimed that you may be 
biased when certain results seem to suit them, could you give 
me some more examples of cases where you voted against 
Executive powers?
    Judge Alito. Yes, certainly, Senator. Brinson v. Vaughn is 
an example of that. That was a habeas case involving a murder 
conviction, and I concluded and my panel concluded--and I wrote 
the opinion saying that there had been racial discrimination, 
or enough to have a hearing on the possibility of racial 
discrimination in the selection of the jury in that case. And, 
therefore, we reversed the decision of the district court.
    Williams v. Price is another example. There we found--and 
that was another murder case, and so what is involved here in 
these cases is really the most important thing that is 
litigated on the criminal side in the Federal courts. That was 
a case where the district court had denied a writ of habeas 
corpus, and we reversed because we found that there had been an 
error in excluding testimony that showed racial bias on the 
part of the jurors.
    There was another murder case, United States v. Murray. 
This was a Federal prosecution, and we had to reverse there 
because we concluded--and I wrote the opinion there--that the 
prosecutors had introduced evidence--
    Senator Hatch. Well, you could go on and on, but my point 
is that in approximately 5,000 cases, you can find just about 
anything you want to, to pluck out and say, ``Oh, he didn't do 
right here,'' or ``He did right here.'' I mean, the fact of the 
matter is that you, as far as I can see, have always done your 
utmost to live up to your responsibilities as a Federal court 
judge and that you have done so throughout your 15 years on the 
bench, even though members of this illustrious body, the United 
State Senate, might differ with you on occasion, and others 
might also. But I don't know a judge alive who has been on the 
bench 15 years that does not have cases that some of our 
illustrious members disagree with. So that is the point I am 
trying to make.
    Let me just shift here for a second. I am interested in 
exploring the kind of judge you are. As you can see, some of 
these questions have all been directed toward what kind of a 
judge you are. But I am interested in what is often referred to 
as a judicial philosophy, which means how you understand the 
role that judges play in our system of Government in general 
and how judges should go about deciding cases in particular.
    I would like to explore this by giving you a chance to 
expand on a few things that you have said or written. In your 
hearing in April 1990, which my friend Senator Kennedy chaired, 
he asked you what qualities are most important for an appellate 
judge. You listed open-mindedness to litigants' arguments, 
close attention to the particular facts and law in the case, 
and trying not to import a judge's own view of the law that 
should be applied in the case.
    Now, in your statement yesterday, you said that your 
experience on the appeals court has taught you a lot about, as 
you put it, ``the way in which a judge should go about the work 
of judging.'' What has that experience taught you? How has it 
shaped the answer you gave before you went on the bench?
    Judge Alito. My general philosophy is that the judiciary 
has a very important role to play, and in speaking with Senator 
Leahy, I highlighted some of that. But the judiciary has to 
protect rights, and it should be vigorous in doing that, and it 
should be vigorous in enforcing the law and in interpreting the 
law, in interpreting the law in accordance with what it really 
means and enforcing the law even if that's unpopular.
    But although the judiciary has a very important role to 
play, it's a limited role. It is not--it should always be 
asking itself whether it is straying over the bounds, whether 
it's invading the authority of the legislature, for example, 
whether it is making policy judgments rather than interpreting 
the law. And that has to be a constant process of re-
examination on the part of the judges. And that's the role that 
the judiciary should play.
    Now, my experience on the bench has really reinforced for 
me the importance of the appellate process and the judicial 
process that I described yesterday. And that is the process of 
really engaging the arguments that are made, reading the 
briefs, and approaching it with an open mind, always with the 
possibility of changing your mind based on the arguments and 
based on the facts of a particular case.
    Senator Hatch. Well, another context in which you have 
discussed your judicial philosophy is the questionnaire that 
you received from this Committee, which asked for your views on 
judicial activism. Now, the very first words of your answer 
were as given here today, that the Constitution sets forth the 
limited role for the judicial branch.
    Now, to hear some of my colleagues describe it yesterday, 
judges have virtually unlimited power to right all wrongs, 
protect everyone from everything, and make sure that Government 
officials everywhere behave themselves.
    Now, as an appeals court judge, the decisions of the 
Supreme Court add to the limitations or constraints you must 
observe, in my opinion. I am wondering whether you believe this 
notion of limited judicial power applies also the Supreme 
Court, and if so, how it applies when there is no higher court 
than the Supreme Court. Does that mean that the Supreme Court 
should perhaps be even more cautious, even more self-restrained 
since there is no appeal from any errors that they might make?
    Judge Alito. I think that's a solemn responsibility that 
they have. When you know that you are the Court of last resort, 
you have to make sure that you get it right.
    It is not true, in my judgment, that the Supreme Court is 
free to do anything that it wants. It has to follow the 
Constitution, and it has to follow the laws. Stare decisis, 
which I was talking about earlier, is an important limitation 
on what the Supreme Court does. And although the Supreme Court 
has the power to overrule a prior precedent, it uses that power 
sparingly, and rightfully so. It should be limited in what it 
does.
    Senator Hatch. Another place in which you have written 
about what might be called judicial philosophy is in your 
opinions--not that you have spent much time opining about such 
matters in the abstract. Nevertheless, I would like you to 
expand a little on a few of the things you have written in this 
regard.
    For instance, in New Jersey Payphone Association v. Town of 
West New York--this was a 2002 case--for example, you wrote the 
following: ``It is well established that, when possible, 
Federal courts should generally base their decisions on non-
constitutional rather than constitutional grounds. The 
rationale behind the doctrine of avoiding constitutional 
questions except as a last resort are grounded in fundamental 
constitutional principles.''
    Can you explain those fundamental principles and whether 
you think the Supreme Court as well as the appeals court should 
follow this imperative to avoid constitutional decisions?
    Judge Alito. I do. I think that's a very important 
principle. As I recall, Justice Brandeis in the Ashwander case 
was the one who articulated it most eloquently, and it's, 
therefore, an important reason because a constitutional 
decision of the Supreme Court has a permanency that a decision 
on an issue of statutory interpretation doesn't have. So if a 
case is decided on statutory grounds, there's a possibility of 
Congress amending the statute to correct the decision if it's 
perceived that the decision is incorrect or it's producing 
undesirable results.
    I think that it's--my philosophy of the way I approach 
issues is to try to make sure that I get right what I decide, 
and that counsels in favor of not trying to do too much, not 
trying to decide questions that are too broad, not trying to 
decide questions that don't have to be decided, and not going 
to broader grounds for a decision when a narrower ground is 
available.
    Senator Hatch. You have addressed issues such as abortion 
at different points in your career. You addressed it when you 
worked for the Solicitor General. You might have addressed it 
in several cases on the appeals court. It might be tempting to 
say that if you came to one conclusion while in one role, you 
will necessarily come to the same conclusion on the issue while 
in a different role.
    Now, I think you have explained it pretty well today, but 
let me just ask one other question. Could you please explain 
how judges address issues differently than advocates? And how 
does the requirement of a case or a controversy or a limitation 
such as a particular standard of review shape how judges 
address these issues?
    Judge Alito. The standards of review are very important, 
and often they are prescribed by Congress. Congress gives us 
authority, jurisdiction to decide certain questions, but it 
says that you don't have the authority to go back and do what 
the trial--what you would have done if you were the trial judge 
or if you were the administrative agency; you have a limited 
authority of review. And I think it's very important for us to 
stay within the bounds of the authority that Congress gives us. 
I think that's a very important part of our function.
    Senator Hatch. Thank you, Judge.
    Chairman Specter. Thank you, Senator Hatch.
    We will now take a 15-minute break and reconvene at 11:20.
    [Recess at 11:06 a.m. to 11:20 a.m.]
    Chairman Specter. We will continue the hearing for Judge 
Alito on confirmation to the Supreme Court of the United 
States, and we now turn in sequence to Senator Kennedy. Let us 
not forget to start the clock.
    Senator Kennedy. Thank you very much, Mr. Chairman.
    There was one interesting omission between the exchange of 
yourself and Senator Hatch on the whole Vanguard issue in 
question, and that was the promise and pledge that you gave to 
this Committee when you were up for the Circuit Court. I have 
it right here. It said: I do not believe that conflicts of 
interest relating to my financial interests are likely to 
arise. I would, however, disqualify myself from any cases 
involving the Vanguard Companies, the brokerage firm of Smith 
Barney or the First Federal Savings & Loan of Rochester, New 
York. So you remember that response. That was a pledge and 
promise to the Committee that you would recuse yourself, was it 
not?
    Judge Alito. Yes, it was, Senator. And as I said in 
answering Senator Hatch's question, if I had it to do over 
again, I would have handled this case differently. There were 
some oversights--
    Senator Kennedy. I am sure you might have, and we have had 
a number of different explanations for this. I would like to 
ask the clerk if they would take down and show the Judge, if 
you would like to be refreshed, about the number of times the 
name Vanguard appears on the brief, and the number of times 
Vanguard appears on the opinion, which I believe you offer. I 
would ask if I could get a clerk to show those two documents.
    Judge Alito. Senator, I'm familiar with that. I don't 
really need to see the document. Senator, the name Vanguard 
certainly appears on the briefs, and it appeared in the draft 
opinion that was sent to us by the staff attorney's office. I 
just didn't focus on the issue of recusal when it came up, and 
that was an oversight on my part, because it didn't give me the 
opportunity to apply my personal policy in going beyond what 
the code requires.
    Senator Kennedy. Did the individuals that responded on the 
ethical issues that were involved in this case, did they know 
that you had pledged and promised to this Committee that you 
would recuse yourself?
    Judge Alito. I believe that they did. I believe that some 
of them at least addressed that specifically--
    Senator Kennedy. Do you know specifically whether they did 
or not?
    Judge Alito. I believe they addressed it in their letter, 
so they must have been aware of it.
    Senator Kennedy. They understood that you had promised this 
Committee that you would recuse yourself? Your testimony now is 
that those that made a comment upon your ethical behavior knew 
as a matter of fact that you had pledged to this Committee that 
you would recuse yourself from the Vanguard cases?
    Judge Alito. Professor Hazard, I know, addressed that 
directly in his letter. I think Professor Rotunda addressed it 
in his letter, so, obviously, if the letters addressed the 
issue, they were aware of what was said on the Senate 
questionnaire.
    Senator Kennedy. And the final answer--and we will move 
on--is that you saw the name Vanguard on the briefs, and you, 
obviously, saw them on the opinion. You are the author of the 
opinion. But your testimony here now is even though you saw the 
names on that, it did not come to mind at that moment that you 
had made the pledge and promise to this Committee that you 
would recuse yourself?
    Judge Alito. I did not focus on the issue of recusal I 
think because 12 years had gone by, and the issue of a Vanguard 
recusal hadn't come up. And one of the reasons why judges tend 
to invest in mutual funds is because they generally don't 
present recusal problems, and pro se cases in particular 
generally don't present recusal problems. And so, no light went 
off. That's all I can say. I didn't focus on the issue of 
recusal.
    Senator Kennedy. This is important, when the lights do go 
on and when the lights do go off, because, actually, the 
accumulation of value of Vanguard had increased dramatically 
during this period of time, had it not?
    Judge Alito. It had, Senator, but I had nothing to gain 
financially by--
    Senator Kennedy. I am not asking you to get on to the 
questions of gain or loss or whatever. I am just asking about 
the pledge to the Committee which you had given, and the fact 
that Vanguard was so obvious, both in the brief and in the 
opinion which you wrote, and the fact that during this period 
of time there had been a sizable increase in the total value of 
Vanguard, and as all of us know, if you are dealing with a case 
dealing with IBM, you cannot have even a single share in that. 
The point about all of this is so interested parties that have 
come before the courts, are going to believe not only in 
reality, but in appearance that they are going to get a fair 
shake. And that, you have said, was certainly your desire, and 
I certainly commend you for at least that desire. But in this 
case, this was something that we recognize and is extremely 
important.
    Judge, in just the past month, Americans have learned that 
the President instructed the National Security Agency to spy on 
them at home, and they have seen an intense public debate over 
when the FBI can look at their library records, and they have 
heard the President announce that he has accepted the McCain 
amendment barring torture. But then just days later, as he 
signed it into law, the President decided he still could order 
torture whenever he believed it was necessary. No check, no 
balance, no independent oversight. So, Judge, we all want to 
protect our communities from terrorists, but we do not want our 
children and grandchildren to live in an America that accepts 
torture and eavesdropping on an American citizen as a way of 
life. We need an independent and vigilant Supreme Court to keep 
that from happening, to enforce the constitutional boundaries 
on Presidential power and blow the whistle when the President 
goes too far.
    Congress passes laws, but this President says that he has 
the sole power to decide whether or not he has to obey those 
laws. Is that proper? I do not think so. But we need Justices 
who can examine this issue objectively, independently and 
fairly, and that is what our Founders intended and what the 
American people deserve.
    So, Judge, we must know whether you can be a Justice who 
understands how to strike that proper balance between 
protecting our liberties and protecting our security, a Justice 
who will check even the President of the United States when he 
has gone too far.
    Chief Justice Marshall was that kind of Justice when he 
told President Jefferson that he had exceeded his war-making 
powers under the Constitution. Justice Jackson was that kind of 
Justice when he told President Truman that he could not use the 
Korean War as an excuse to take over the Nation's steel mills. 
Chief Justice Warren Burger was that kind of Justice when he 
told President Nixon to turn over the White House tapes. And 
Justice O'Connor was that kind of Justice when she told 
President Bush that a state of war is not a blank check for the 
President when it comes to the rights of the Nation's citizens.
    I have serious doubts that you would be that kind of 
Justice. Your record shows time and again that you have been 
overly deferential to Executive power, whether exercised by the 
President, the Attorney General or law enforcement officials. 
And your record shows that even over the strong objections of 
other Federal judges, other Federal judges, you bend over 
backwards to find even the most aggressive exercise of 
Executive power reasonable. But perhaps most disturbing is the 
almost total disregard in your record for the impact of these 
abuses of power on the rights and liberties of individual 
citizens.
    So, Judge Alito, we need to know whether the average 
citizen can get a fair shake from you when the Government is a 
party, and whether you will stand up to a President, any 
President, who ignores the Constitution and uses arguments of 
national security to expand Executive power at the expense of 
individual liberty, whether you will ever be able to conclude 
that the President has gone too far.
    Now, in 1985, in your job application to the Justice 
Department you wrote, ``I believe very strongly in the 
supremacy of the elected branches of Government.'' Those are 
your words; am I right?
    Judge Alito. They are, and that's a very inapt phrase, and 
I--
    Senator Kennedy. Excuse me?
    Judge Alito. It's an inapt phrase, and I certainly didn't 
mean that literally at the time, and I wouldn't say that today. 
The branches of Government are equal. They have different 
responsibilities, but they are all equal, and no branch is 
supreme to the other branch.
    Senator Kennedy. So you have changed your mind?
    Judge Alito. No, I haven't changed my mind, Senator, but 
the phrasing there is very misleading and incorrect. I think 
what I was getting at is the fact that our Constitution gives 
the judiciary a particular role, and there are instances in 
which it can override the judgments that are made by Congress 
and by the Executive, but for the most part our Constitution 
leaves it to the elected branches of Government to make the 
policy decisions for our country.
    Senator Kennedy. I want to move on. Mr. Chairman, the clock 
is off. There are a number of points I want to cover and be 
timely, so I leave it up to the Chair.
    Chairman Specter. Senator Kennedy, you are correct. We have 
a timer over here. We are trying to get the time fixed.
    Senator Kennedy. All right. If I would know when I have 10 
minutes left?
    Chairman Specter. Let us see if we cannot get the clock 
within the view of Senator Kennedy so he can see it when he is 
questioning the witness.
    Senator Kennedy. Thank you, Chair.
    Chairman Specter. And give Senator Kennedy two more 
minutes.
    Senator Kennedy. There you go.
    [Laughter.]
    Senator Kennedy. Be quiet over there, scurrilous dogs.
    [Laughter.]
    Senator Leahy. Seniority has privileges.
    Senator Kennedy. Judge, quite frankly, your record shows 
you still believe in the supremacy of the executive branch, 
Judge Alito. I believe there is a larger pattern in your 
writings and speeches and cases that show an excess of almost 
single-minded deference to the Executive power without showing 
a balanced consideration to the individual rights of people. So 
let us discuss some of your opinions.
    These cases deal specifically with one form or another of 
Executive power, the power of authorities intruding in homes, 
searching people who are not even suspected of committing a 
crime. Mellott v. Heemer--where the U.S. Marshal Service 
forcibly evicted a family of dairy farmers from their home and 
their farm. These farmers had no criminal record, and were 
suspected of no crime, but after they fell on very hard times, 
property was sold at a public auction. U.S. Marshals were sent 
to evict them. Remember, the marshals were sent to carry out a 
civil action, not a criminal action, a civil action. These 
farmers had committed no crime. Now, I respect the U.S. 
Marshals. They have a tough job and they do it with great 
professionalism. But in this case the marshals entered the 
house with loaded guns. The family was unarmed, did not resist, 
but still the marshals pointed loaded guns at their heads, 
chests and backs. One marshal chambered a cartridge in his gun. 
Twice they pushed the wife into her chair.
    The trial judge held there was enough evidence in this case 
to have a jury review the facts, hear the testimony and decide 
whether the marshals used too much force to evict these 
farmers. That did not sit well with you, Judge Alito. You 
grabbed the case away from the jury. You would not let them 
hear the testimony or make up their own mind about whether the 
marshals had gone too far. No, you simply substituted your 
judgment for the jury's, and decided that the marshals' conduct 
was, as a matter of law, objectively reasonable. Judgment for 
the marshals, no jury of their peers for the farmers.
    Why, Judge Alito? Your colleague on the Third Circuit, 
Judge Rendell, called the marshals' conduct ``Gestapo-like'', 
``Gestapo-like''. She said that seven marshals terrorized a 
family and friends, ransacked a home while carrying out an 
unresisted civil eviction. The trial judge thought the decision 
should be made by the jury. Why did you not let the jury 
exercise an independent check on the marshals' actions?
    Judge Alito. There was some additional information 
regarding these people that was important, and that was that 
they had threatened other people, as I recall, and there was 
evidence about the possession of weapons and evidence that they 
would be dangerous, and that was the basis on which the 
marshals acted the way they did. This was a case in which they 
were--the marshals were sued for civil damages, and they 
asserted what's called the Qualified Immunity Defense, and that 
means that if a reasonable person could have thought there was 
a basis for doing what they did, then they are entitled not to 
be tried. And that's the law. I didn't make up that law.
    Senator Kennedy. No, the--
    Chairman Specter. Let him finish, Senator Kennedy.
    Judge Alito. That's not a legal standard that I made up, 
and that was the way I saw the case, and that's the way the 
other judge, who was in the majority, saw the case. Now, these 
cases involve difficult line-drawing arguments at times, and I 
respect Judge Rendell's view of this very much, but reasonable 
people will view these things differently.
    Senator Kennedy. The issue then was the actions of the 
marshals, whether it was reasonable. And here you have a judge, 
Judge Rendell, saying it was Gestapo-like to talk about 
terrorizing a family and friends, ransacking a home while 
carrying out an unresisted civil eviction. Aren't juries there 
to make a judgment and determination whether it was reasonable 
or not reasonable, and did you not, by your action, take that 
away because you ruled as a matter of law that their conduct 
was reasonable?
    Judge Alito. The Supreme Court has told us how we have to 
handle this issue, and it is for the judiciary to decide in the 
first place whether a reasonable officer could have thought 
that what the officer was doing was consistent with the Fourth 
Amendment, and we have to make that decision. Now, if we decide 
that there's an issue of fact. If there's a dispute in the 
testimony about the evidence that the marshals had or about 
what these individuals were doing at the time when the search 
was taking place, or what the marshals did, and certainly those 
factual issues have to be resolved by the jury.
    Senator Kennedy. That is I think certainly the view of 
Judge Rendell.
    Let me move on, if I could, to Doe v. Groody. I know that 
Senator Leahy has talked about this, and gone over the factual 
situation about the strip searching of a 10-year-old girl. This 
case, the police got the warrant to search the house. They 
found the suspect outside, marched him inside where they 
encountered wife and 10-year-old. The police took the wife and 
daughter upstairs, told them to remove their clothing, 
physically searched them, not as a protective frisk or search 
for weapons, but in the hopes of finding contraband. And that 
is when Judge Chertoff, the former Chief Federal Prosecutor for 
New Jersey, the former head of the Criminal Division in the 
Justice Department, President Bush's current Secretary of 
Homeland Security, held that the police went too far. As Judge 
Chertoff said, a search warrant for a premise does not 
constitute a license to search everyone inside.
    You differed. And you have reviewed with us your reasoning 
for it, the fact that you felt that the affidavit which had 
been filed by the police should be included in the search 
warrant. Judge Chertoff takes strong exception to that, as does 
the Fourth Amendment. As you mentioned yourself, the affidavit 
represents the police, the police's view about this situation, 
but the affidavit--the search warrant is what is approved by 
the judge. Those are two different items. They come up every 
time in many, many instances. Why did you feel that under these 
circumstances, under these circumstances, that that affidavit 
should be included, the result of which we have the strip 
searching of a 10-year-old, 10-year-old that will bear the 
scars of that kind of activity probably for the rest of her 
life.
    The Fourth Amendment is clear, we want to protect the 
innocent. We want to have a search warrant that is precise so 
that the police understand it and the person that it is being 
served to understands it. That was all spelled out in the 
judge's opinion. But you went further than that. You said, 
well, in this case we are going to include the affidavit, and 
as a result of your judgment in this case and the inclusion of 
the affidavit, we have the kind of conduct against this 10-
year-old that she will never forget. Why? Why, Judge Alito?
    Judge Alito. Senator, I wasn't happy that a 10-year-old was 
searched. Now, there wasn't any claim in this case that the 
search was carried out in any sort of an abusive fashion. It 
was carried out by a female officer, and that wasn't the issue 
in the case. And I don't think that there should be a Fourth 
Amendment rule. But, of course, it's not up to me to decide 
that minors can never be searched, because if we had a rule 
like that, then where would drug dealers hide their drugs? That 
would lead to greater abuse of minors.
    The technical issue in the case was really not whether a 
warrant can incorporate a search warrant--an affidavit. There's 
no dispute that a judge or a magistrate issuing a warrant can 
say that the affidavit is incorporated, and that was done here. 
The issue was whether--and it was a very technical issue. Was 
it incorporated only on the issue of probable cause or was it 
also incorporated on the issue of who would be searched? If the 
magistrate had said in the warrant, this warrant is 
incorporated as to the people who may be searched, and then in 
the affidavit it said, and it did say this very clearly, we 
want authorization to search anybody who's on the premises, 
then there would be no problem whatsoever.
    The warrant said it was incorporated on the issue of 
probable cause, and I thought that reading it in a common sense 
fashion, which is what we're supposed to do, that necessarily 
meant that the magistrate said there was probable cause to 
search anybody who's found on the premises and that's what I'm 
authorizing you to do.
    Senator Kennedy. And that is what Judge Chertoff took 
strong exception, in a very eloquent statement in talking about 
the protections and the reasons for the strict interpretation 
for the warrant. Let me move on.
    Judge Alito, your Third Circuit decisions don't exist in a 
vacuum. I'd like to, Mr. Chairman, at this point, since there 
have been some questions about whether we are flyspecking these 
cases, I would like to include in the appropriate place in the 
record the Knight Ridder studies that concluded that Judge 
Alito never found a government search unconstitutional; the 
Yale Law School professors study that found that Judge Alito 
ruled for the government in almost every case reviewed--this 
was their conclusion; the Washington Post stories with regard 
to the cases; and also Professor Cass Sunstein's conclusions 
that Judge Alito rules against individuals 84 percent of the 
time.
    Chairman Specter. In accordance with our practices, if you 
want them in the record, they will be there, without objection.
    Senator Kennedy. So just looking at your writings and 
speeches, Judge Alito, you have endorsed the supremacy of the 
elected branch of government. You have clarified that today. 
You argued that the Attorney General should have absolute 
immunity, even for actions that he knows to be unlawful or 
unconstitutional. You suggested that the Court should give a 
President's signing statement great deference in determining 
the meaning and the intent of the law and argued as a matter of 
your own political and judicial philosophy for an almost all-
powerful Presidency. Time and again, even in routine matters 
involving average Americans, you give enormous, almost total 
deference to the exercise of governmental power. So I want to 
ask you about some of the possible abuses of the Executive 
power and infringement on individual rights that we are facing 
in the country today.
    Judge Alito, just a few weeks ago, by a vote of 90 to nine, 
the Senate passed a resolution sponsored by Senator John McCain 
to ban torture, whether it be here at home or abroad, and as a 
former POW in Vietnam, John McCain knows a thing or two about 
torture. For a long time, the White House threatened to veto 
the legislation, and finally, Senator McCain met with the 
President and convinced him to approve the anti-torture law. 
Two weeks after that, the President issued a signing statement, 
no publicity, no press release, no photo op, where he quietly 
gutted his commitment to enforce the law banning torture. The 
President stated, in essence, that whatever the law of the land 
might be, whatever Congress might have written, the Executive 
branch has the right to authorize torture without fear of 
judicial review.
    Now, I raise this issue with you, Judge, I raise this with 
you because you were among the early advocates of these so-
called Presidential signing statements when you were a Justice 
Department official. You urged President Reagan to use the 
signing statements to limit the scope of laws passed by 
Congress, even though Article I of the Constitution vests all 
legislative powers in the Congress. You urged the President to 
adopt what you described as a novel proposal, to issue 
statements aimed at undermining the Court's use of legislative 
history as a guide to the meaning of the law. You wrote these 
words. The President's understanding of the bill should be just 
as important as that of Congress.
    With respect to the statement issued by President Bush 
reserving his right to order torture, is that what you had in 
mind when you said or wrote, the President's understanding of 
the bill should be just as important as that of Congress?
    Judge Alito. When I interpret statutes, and that's 
something that I do with some frequency on the Court of 
Appeals, where I start and often where I end is with the text 
of the statute. And if you do that, I think you eliminate a lot 
of problems involving legislative history and also with signing 
statements. So I think that's the first point that I would 
make.
    Now, I don't say I'm never going to look at legislative 
history, and the role of signing statements in the 
interpretation of statutes is, I think, a territory that's been 
unexplored by the Supreme Court and it certainly is not 
something that I have dealt with as a judge.
    This memo was a memo that resulted from a working group 
meeting that I attended. The Attorney General had already 
decided that as a matter of policy, the administration, the 
Reagan administration, would issue signing statements for 
interpretive purposes and had made an arrangement with the West 
Publishing Company to have those published. And my task from 
this meeting was to summarize where the working group was going 
and where it had been, and I said at the beginning of the 
meeting that this was a rough--at the beginning of the memo 
that this was a rough first effort to outline what the 
administration was planning to do and I was a lawyer for the 
administration at the time. Then I had a big section of that 
memo saying, and these are the theoretical problems and some of 
them are the ones that you mentioned. And that's where I left 
it, and all of that would need to be explored to go any 
further.
    Senator Kennedy. Well, Judge Alito, in the same signing 
statement undermining the McCain anti-torture law, the 
President referred to his authority to supervise the unitary 
Executive branch. That's an unfamiliar term to most Americans, 
but the Wall Street Journal describes it as the foundation of 
the Bush administration's assertion of power to determine the 
fate of enemy prisoners, jailing U.S. citizens as enemy 
combatants without charging them. President Bush has referred 
to this doctrine at least 110 times, while Ronald Reagan and 
the first President Bush combined used the term only seven 
times. President Clinton never used it.
    Judge Alito, the Wall Street Journal reports that officials 
of the Bush administration are concerned that current judges 
are not buying into its unitary Executive theory, so they are 
appointing new judges more sympathetic to their Executive power 
claims. We need to know whether you are one of those judges.
    In 2000, in the year 2000, in a speech soon after the 
election, you referred to the unitary Executive theory as the 
gospel and affirmed your belief in it. So, Judge Alito, the 
President is saying he can ignore the ban on torture passed by 
Congress, that the courts cannot review his conduct. In light 
of your lengthy record on the issues of Executive power, 
deferring to the conduct of law enforcement officials even when 
they are engaged in conduct that your judicial colleagues 
condemn, Judge Chertoff, Judge Rendell, subscribing to the 
theory of unitary Executive, which gives the President complete 
power over the independent agencies, the independent agencies 
that protect our health and safety, believing that the true 
independent special prosecutors who investigate Executive 
wrongdoing are unconstitutional, referring to the supremacy of 
the elected branches over the judicial branch and arguing that 
the court should give equal weight to a President's view about 
the meaning of the laws that Congress has passed, why should we 
believe that you will act as an independent check on the 
President when he claims the power to ignore the laws passed by 
Congress?
    Judge Alito. Well, Senator, let me explain what I 
understand the idea of the unitary Executive to be, and I think 
it's--there's been some misunderstanding, at least as to what I 
understand this concept to mean. I think it's important to draw 
a distinction between two very different ideas. One is the 
scope of Executive power, and often Presidents or occasionally 
Presidents have asserted inherent Executive powers not set out 
in the Constitution. And we might think of that as how big is 
this table, the extent of Executive power.
    And the second question is when you have a power that is 
within the prerogative of the Executive, who controls the 
Executive? And those are separate questions. And the issue of, 
to my mind, the concept of unitary Executive doesn't have to do 
with the scope of Executive power. It has to do with who within 
the Executive branch controls the exercise of Executive power, 
and the theory is the Constitution says the Executive power is 
conferred on the President.
    Now, the power that I was addressing in that speech was the 
power to take care that the laws are faithfully executed, not 
some inherent power but a power that is explicitly set out in 
the Constitution.
    Senator Kennedy. Would that have any effect or impact on 
independent agencies?
    Judge Alito. The status of independent agencies, I think, 
is now settled in the case law. This was addressed in 
Humphrey's Executor way back in 1935 when the Supreme Court 
said that the structure of the Federal Trade Commission didn't 
violate the separation of powers. And then it was revisited and 
reaffirmed in Wiener v. United States in 1958--
    Senator Kennedy. So your understanding of any unitary 
Presidency, that they do not therefore have any kind of 
additional kind of control over the independent agencies that 
has been agreed to by the Congress and signed into law at--
    Judge Alito. I think that Humphrey's Executor is a well-
settled precedent. What the unitary Executive, I think, means 
now, we would look to Morrison, I think, for the best 
expression of it, and it is that things cannot be arranged in 
such a way that interfere with the President's exercise of his 
power on a functional, taking a functional approach.
    Senator Kennedy. I want to just mention this signing of the 
understanding of the legislation that we passed banning 
torture, what the President signed on to. The Executive branch 
shall construe the Title X in Division A relating to detainees 
in a matter with the constitutional authority of the President 
to supervise the unitary Executive branch as the commander in 
chief, and consistent with the constitutional limitations on 
judicial power. Therefore, it is the warning that the courts 
are not going to be able to override the judgments and 
decisions. That is certainly my understanding of those words, 
which will assist in achieving the shared objective of the 
Congress and the President.
    That statement there, in terms of what was agreed to by 
Congress 90-to-9, by John McCain, by President Bush, and then 
we have this signing document which effectively just undermines 
all of that, is something that we have to ask ourselves whether 
this is the way that we understand the way the laws are to be 
made. It is very clear in the Constitution who makes the laws, 
and Congress and the Senate makes it. The President signs it, 
and that is the law. That is the law. These signing statements 
and recognizing these signing statements and giving these value 
in order to basically undermine that whole process is a matter 
of enormous concern.
    Thank you.
    Chairman Specter. Judge Alito, Senator Kennedy had noted 
that there were substantial gains, as he put it, in the 
Vanguard stock or the Vanguard asset during the period of time 
that you held them, but he did not give you an opportunity to 
answer that. I don't like to interrupt in the midst of a series 
of questions, but you can respond to that if you care to do so 
at this time.
    Judge Alito. Mr. Chairman, I had additional holdings in 
Vanguard during my period of service, but I think that the 
important point as far as that is concerned is that nobody has 
claimed that I had anything to gain financially from 
participating in this case and I certainly did not.
    Chairman Specter. Senator Grassley?
    Senator Grassley. I have a much more positive view of you 
than has just been expressed.
    [Laughter.]
    Senator Grassley. I can't be cynical about your judging. In 
fact, maybe from what I have criticized the Supreme Court in a 
long period of time, I might feel you are too cautious, too 
willing to follow precedent.
    But I think in regard to Vanguard, the point ought to be 
made that you did nothing wrong. You didn't violate any law or 
any ethics rule. And the point is being made that maybe you 
didn't remember a promise that you had made to this Committee, 
but let me assure you, don't lose any sleep over that. If 
Senators kept every word they made to their constituents, there 
wouldn't be any Senators left. There is always shortness of 
memory and without ill intent, whether it is on the part of a 
Senator or whether it is on the part of Judge Alito.
    I hope the viewing public is impressed by your intellect 
and your legal capabilities and your judicial record. Clearly, 
they are seeing that you have the kind of background and 
practical experience that it takes to be a Supreme Court 
Justice. In addition, I think you have demonstrated now after 
five or six of us asking you questions that you are very candid 
in answering questions so far and being honest with our 
Committee.
    These nomination hearings that we are holding are, of 
course, a unique opportunity for all of us, Senators and the 
public, to explore more in depth how Supreme Court nominees 
view the roles of justice, how a nominee approaches 
constitutional interpretation and precedent, as well as a 
nominee's appreciation of the separate branches of government, 
and you have been involved in all of those discussions already 
this morning. It is unfortunate that some extreme liberal 
groups have attacked your commitment to the law as well as your 
honesty and integrity, but now you are doing your best, and I 
think doing a good job, of setting the record straight.
    So before I ask you some questions, I want to bring up some 
of these issues that have been brought up against you, and you 
don't necessarily have to respond in any way. I just think it 
is points that ought to be made as I see you. I am only one 
Senator, but I think I have had a good opportunity to study you 
and particularly your cases.
    I would like to address these ethics charges that we have 
seen generated by some of the left-wing liberal interest groups 
and even my colleagues on the other side of the aisle. These 
allegations are just plain absurd. You are going to see some 
charts that hopefully will be held up that I am not going to 
point to, but bring up some of these charges, because I think 
we want to prove that these allegations are absurd. It is 
puzzling to me that anyone would actually believe these claims, 
especially when people who know Judge Alito the best, people 
who have known him for a long period of time and who have 
worked closely with him, better than any of our Senators would 
know you, they all say that you are a man of honor, integrity, 
and principle. They have no question about that.
    The fact is that the ABA looks at issues such as integrity 
and ethics when it evaluates a judicial nominee and it found 
you, Judge Alito, to be unanimously well qualified, a rating 
that Democrats have always claimed to be a gold standard. The 
ABA didn't find a problem with Judge Alito's record.
    Moreover, several leading ethicists from across the 
political spectrum reviewed these allegations and they all 
agreed that you, Judge Alito, acted properly and that none of 
these charges have merit. It says in a letter from George Mason 
University Law Professor Ronald Rotunda, already referred to by 
members, and in a letter to Chairman Specter, quote, ``Neither 
Federal statute nor Federal rules nor Model Code of Judicial 
Conduct of the American Bar Association provide that a judge 
should disqualify himself in any case involving a mutual fund 
company,'' and they give as examples Vanguard, Fidelity, T. 
Rowe Price, ``simply because a judge owns mutual funds that the 
company manages and holds in trust for a judge,'' end of quote. 
So basically, according to law, Judge Alito was not required to 
recuse himself in the Vanguard case, but he did it anyway.
    So let me repeat, five leading ethicists all say Judge 
Alito did nothing wrong. Professor Thomas Morgan, quote, ``In 
my opinion, Judge Alito's participation in the Vanguard case 
was in no way improper, nor does it give any reason to doubt 
that he would fully comply with his ethical responsibilities, 
if confirmed.''
    And Professor Steven Lubet and David McGowan wrote, ``You 
do not need to be a fan of Alito's jurisprudence to recognize 
that he is a man of integrity. Other judges and Justices would 
do well to follow this example,'' end of quote.
    In addition, no complaint filed against Judge Alito has 
ever been validated, and to top it off, we have heard glowing 
statement after glowing statement from folks closest to the 
Judge, your law clerks, Republicans and Democrats alike, as 
well as lawyers and judges who practiced before and worked with 
the Judge on a daily basis. These people know this nominee best 
and they all say that he is a man of humility, a man of 
principle, and they don't have any question about the Judge's 
integrity.
    So it is patently unfair that some folks, intent on 
torpedoing this nomination, are trying to give these 
allegations weight that they don't deserve. It should be clear 
to everyone that this is a blatant tactic to tar Judge Alito's 
honorable and distinguished judicial record, and I hope this 
puts to rest these outrageous claims that Judge Alito doesn't 
have the integrity to be a Supreme Court Justice. It is 
outlandish and should be rejected.
    I am now getting to a question that I want to ask you about 
Executive power. Some of your critics have questioned your 
ability, and we have just heard it recently, to be independent 
from the Executive branch. They pointed principally to your 
work as a lawyer for the Department of Justice 20 years ago, 
suggesting that you would just rubber-stamp administration 
policy. I would like to give you an opportunity to address 
this. So, Judge Alito, do you believe that the Executive branch 
should have unchecked authority?
    Judge Alito. Absolutely not, Senator.
    Senator Grassley. Judge Alito, you do understand that under 
the doctrine of separation of powers, the Supreme Court has an 
obligation to make sure that each branch of government does not 
co-opt authority reserved to the coordinate branch, and do you 
understand that where constitutionally protected rights are 
involved, the courts have an important role to play in making 
sure that the Executive branch does not trample those rights?
    Judge Alito. I certainly do, Senator. Each branch has very 
important individual responsibilities and they should all 
perform their responsibilities.
    Senator Grassley. So clarify for me. Do you believe that 
the President of the United States is above the law and the 
Constitution?
    Judge Alito. Nobody in this country is above the law, and 
that includes the President.
    Senator Grassley. Judge Alito, would you have any 
difficulty ruling against the Executive branch of the Federal 
Government if it were to overstep its authority in the 
Constitution?
    Judge Alito. I would not, Senator. I would judge the cases 
as they come up and I think that I believe very strongly in the 
independence of the judiciary. I have been a member of the 
judiciary now for the past 15-and-a-half years and I understand 
the role that the judiciary has to play, and one of its most 
important roles is to stand up and defend the rights of people 
when they are violated.
    Senator Grassley. This first question is very general. It 
is a new area. I would like to explore in detail what you 
understand to be the proper role of a judge in a democratic 
society. So could you generally give me what your views are on 
this approach?
    Judge Alito. Yes. Our Constitution sets up a system of 
government that is democratic. So the basic policy decisions 
are made by people who are elected by the people so that the 
people can control their own destiny. But the Constitution 
establishes certain principles that can't be violated by the 
Executive branch or by the legislative branch. It sets up a 
structure of government that everybody has to follow and it 
protects fundamental rights. And it is the job of the judiciary 
to enforce the provisions of the Constitution and to enforce 
the laws that are enacted by Congress in accordance with the 
meaning that Congress attached to those laws, not to try to 
change the Constitution, not to try to change the laws, but to 
be vigilant in enforcing the Constitution and in enforcing the 
laws.
    Senator Grassley. What do you think about judges allowing 
their own political and philosophical views to impact on any 
jurisprudence? Second, do you believe that there is any room 
for a judge's own value or personal beliefs when he or she 
interprets the Constitution?
    Judge Alito. Judges have to be careful not to inject their 
own views into the interpretation of the Constitution, and for 
that matter, into the interpretation of statutes. That is not 
the job that we are given. That is not authority that we are 
given. Congress has the law-making authority. You have the 
authority to make the policy decisions and it's the job of the 
judiciary to carry out the policy decisions that are made by 
Congress when it's enacting statutes.
    Senator Grassley. Further explanation on that point, three 
sub-parts. Do you believe that Justices should consider 
political dimensions of controversial cases? Do you believe 
that when faced with hard cases, the Supreme Court should look 
at pleasing the home crowd or splitting the baby? And what is 
the proper role of the Supreme Court in deciding highly charged 
cases, meaning, I suppose in most cases, we would be talking 
about politically charged cases?
    Judge Alito. The Framers of the Constitution made a basic 
decision when they set up the Federal judiciary the way they 
set up it, and there's a reason why they gave Federal judges 
life tenure, and that is so that they will be insulated from 
all of the things that you mentioned. They will not decide 
cases based on the way the wind is blowing at a particular 
time, that at a time of crisis, for example, when people may 
lose sight of fundamental rights, the judiciary stands up for 
fundamental rights, that it is not reluctant to stand up for 
the unpopular and for what the Court termed insular minorities, 
that the Constitution--that the judiciary enforces the 
Constitution and the laws in a steadfast way and not in 
accordance with the way the wind is blowing.
    Senator Grassley. Let us look at the Bill of Rights and 
many other amendments that are often praised in broad, spacious 
terms. If a judge was so inclined, he or she could expand on 
the interpretation, use, and effect of many provisions of the 
Constitution. Do you agree with the school of thought that 
takes the position that when Congress and the Executive branch 
are slow or do not act in a particular manner, act at all, let 
us say, then the Supreme Court would have a license to create 
solutions based on some of the broad wording contained in the 
Constitution? Do you think that this is a proper role for the 
Supreme Court, or do you take the position that judges have a 
duty to respect constitutional restraints?
    Judge Alito. Judges have to respect constitutional 
restraints. They have to exercise what's called judicial self-
restraint because there aren't very many external checks on the 
judiciary on a day-to-day basis. So the judiciary has to 
restrain itself and engage in a constant process of asking 
itself, is this something that we are supposed to be doing or 
are we stepping over the line and invading the area that is 
left to the legislative branch, for example. The judiciary has 
to engage in that on a constant basis.
    Senator Grassley. Well, just suppose that Congress had not 
even acted in a certain area and there are people that are 
bringing cases before the court that would give an opportunity 
to fill in on something that Congress didn't do. What about 
in--
    Judge Alito. The judiciary is not a law-making body. 
Congress is the law-making body. Congress has the legislative 
power and the judiciary has to perform its role and not try to 
perform the role of Congress or the Executive.
    Senator Grassley. I don't know whether you have ever had a 
case where the Framers--where you are dealing with the problems 
that the Framers maybe in broad ways in the Constitution 
couldn't provide for, but how would you apply the words of the 
Constitution into problems that the Framers could not have 
foreseen?
    Judge Alito. There are very important provisions of the 
Constitution that are not cast in specific terms, and I think 
for good reason. They set out a principle, and then it is up to 
the judiciary to apply that principle to the facts that arise 
during different periods in the history of our country.
    The example that I like to cite here is the prohibition 
against unreasonable searches and seizures in the Fourth 
Amendment. Now, this goes all the way back to the adoption of 
the Fourth Amendment at the end of the 18th century and most of 
the types of searches that come up today are things that the 
Framers never could have anticipated. They couldn't foresee 
automobiles or telephones or cell phones or the Internet or any 
of the other means of communication that have prevented new 
search and seizure issues. But they set out a good principle, 
and the principle is that searches can't be carried out unless 
they're reasonable, and generally, there has to be a warrant 
issued by a neutral and detached magistrate before a search can 
be carried out.
    And so as these new types of searches have arisen and new 
means of communication have come into practice, the judiciary 
has applied this principle and the legislative branch has 
applied the principle in statutes like the wiretapping statute 
to the new situations that have come up.
    Senator Grassley. What factors, if any, and there may not 
be any, but what factors, if any, are there which can affect a 
judge's interpretation of the text of the Constitution? Can 
these factors be determined and applied without involving 
personal bias of judges?
    Judge Alito. I think they can. There would be no, I think, 
basis for judges to exercise the power of judicial review if 
they were doing nothing different from what the legislature 
does in passing statutes. So judges have to look to objective 
things, and if it's a question of absolutely first impression, 
and there aren't that many constitutional issues that arise at 
this point in our history that are completely issues of first 
impression, you would look to the text of the Constitution and 
you would look to anything that would shed light on the way in 
which the provision would have been understood by people 
reading it at the time.
    You certainly would look to precedent, which is an 
objective factor, and most of the issues that come up in 
constitutional law now fall within an area in which there is a 
rich and often very complex body of doctrine that has worked 
out. Search and seizure is an example. Most of the issues that 
arise concerning--freedom of speech is another example. There 
is a whole body of doctrine dealing with that, and that's 
objective and you would look to that and you would reason by 
analogy from the precedents that are in existence.
    Senator Grassley. Let me bring up the tension between 
majority rule and individual freedoms. This involves the 
tensions between the American ideal of democratic rule and the 
concept of individual liberties, where neither the majority nor 
the minority can be fully trusted to define the proper spheres 
of our democratic authority and liberty. I assume that you 
agree that there is tension that has to be resolved?
    Judge Alito. There is tension because our system of 
government is fundamentally a democratic system, as I said. The 
authority to make the basic policy decisions that affect 
people's lives, most of them, most of those decisions are to be 
made by the legislature and by the Executive in carrying out 
the law. But the judiciary has the responsibility to exercise 
the power of judicial review. And so if something comes up that 
violates the Constitution, then it's been established now going 
all the way back to Marbury v. Madison, if that comes up in a 
case, it is the duty of the judiciary to say what the law is 
and to enforce the law in that decision, and if that means 
saying that something that another branch of government has 
done is unconstitutional, then that's what the judiciary has to 
do.
    Senator Grassley. How would you go about your duties as a 
Justice in determining where the right of the silent majority 
ends and where the right of the individual begins? What 
principles of constitutional interpretation help you to begin 
your analysis of whether a particular statute infringes upon 
some individual right?
    Judge Alito. I would look to the text of the provision. I 
would look to anything that sheds light on what that would have 
been understood to mean. I would look to precedent, and as I 
mentioned a minute ago, I think in most of the areas now where 
constitutional issues come up with some frequency, there is a 
body of precedent. That would be--that shapes the decision. 
That's generally what is going to dictate the outcome in the 
case, and if it's a new question, then usually the judiciary 
will see where it fits into the body of precedent and reason by 
analogy from prior precedents.
    Senator Grassley. Some judges and scholars believe that in 
resolving this dilemma, the court's obligation to the intent of 
the Constitution are so generalized and remote that judges are 
free to create a Constitution that they think best fits today's 
changing society. What do you think of such an approach?
    Judge Alito. Judges don't have the authority to change the 
Constitution. The whole theory of judicial review that we have, 
I think is contrary to that notion. The Constitution is an 
enduring document and the Constitution doesn't change. It does 
contain some important general principles that have to be 
applied to new factual situations that come up. But in doing 
that, the judiciary has to be very careful not to inject its 
own views into the matter. It has to apply the principles that 
are in the Constitution to the situations that come before the 
judiciary.
    Senator Grassley. I think you heard in opening comments 
some of the members of this Committee that they view the courts 
as a place taking the lead in creating a more just society. Is 
that a role for the courts, and I don't know whether you want 
to call this judicial activism, but I would, is it ever 
justified?
    Judge Alito. Well, I think that if the courts do the job 
that they are supposed to do, they will produce, we will 
produce a more just society. I think if you take a position as 
a Federal judge, you have to have faith that if you do your 
job, then you will be helping to create a more just society. 
The Constitution and the constitutional system that we have is 
designed to produce a just society.
    It gives different responsibilities to different people. 
You could think of a football team or you could think of an 
orchestra where everybody has a different part to play, and the 
whole system won't work if people start playing--start 
performing the role of someone else. Everyone in the system has 
to perform their role, and I think you have to have faith, and 
I think it's a well-grounded faith, that if you do that, if the 
judiciary does what it is supposed to do, the whole system will 
work toward producing a more just society.
    Senator Grassley. I want to go back and expand on a point I 
referred to as maybe Congress not acting some time and what the 
Court should do about that. This was a line of questioning that 
I also asked Chief Justice Roberts when he was before us. At 
that time, I referred to the confirmation of Justice Souter, 
and Justice Souter responded to my questions regarding the 
interpretation of statutory law by speaking about the Court's 
filling vacuums in law left by Congress. Do you believe that 
the Supreme Court should fill in vacuums in the law left by 
Congress, or is this a way for Justices to take an activist 
role in that they get to decide how to fill in generalities and 
resolve contradictions in law? If you are confirmed by the 
Senate, do you believe that your job is to fill in vacuums?
    Judge Alito. Well, I don't know exactly what Justice Souter 
was referring to when he said that, but just speaking for 
myself, I think that it is our job to interpret and to enforce 
the statutes that Congress passes and not to add to those 
statutes and not to take away from those statutes.
    Senator Grassley. Further on judicial restraint, are there 
any situations where you believe it is appropriate for a 
Supreme Court Justice to depart from the issue at hand and 
announce broad sweeping constitutional doctrine, and if you do, 
could you please describe in detail what those circumstances 
might be?
    Judge Alito. I think that the judiciary should decide the 
case--I think judges should decide the case that is before 
them. I think it's hard enough to do that and get it right. If 
judges begin to go further and announce--and decide questions 
that aren't before them, or issue opinions or statements about 
questions that aren't before them--from my personal experience, 
what happens when you do that is that you magnify the chances 
of getting something wrong. When you have an actual concrete 
case of controversy before you, focus on that. It improves your 
ability to think through the issue and it focuses your thinking 
on the issue and it makes for a better decision if you just 
focus on the matter that is at hand and what you have to decide 
and not speak more broadly.
    If you speak more broadly, I think there is a real chance 
of saying something that you don't mean to say, or suggesting 
something that you don't mean to say and deciding questions 
before they have been fully presented to you, before you have 
heard all the arguments about this other question that isn't 
really central to the case that is before you.
    Senator Grassley. You might sometime be faced with what 
people might call a bad law or some unpopular law which 
nonetheless might be constitutional. Do you believe that--I 
guess the question should be, what do you believe would be the 
court's role in that instance? Is the court ever justified in 
correcting what might be a problem out there, presumably 
created by a law Congress passed?
    Judge Alito. Courts do not have the authority to repeal 
statutes or to amend statutes, and so once a court has 
determined what a statute means, then it's the obligation of 
the courts to enforce that statute. Now, sometimes when a case 
of statutory interpretation comes before a court and your first 
look at the statute seems to produce an absurd result, let's 
say, or a very unjust result, then I think the judiciary has 
the obligation to go back and say, well, is this really what 
the statute means, because the legislature generally is not 
going to want to produce a result like that. So maybe our first 
look at this statute has produced an interpretation that's it's 
an incorrect statute. So I think we have to do that.
    And occasionally, a statute will come along or an 
administrative regulation will come along and the way it's 
applied in a particular case shows that there's a problem with 
the statute or the regulation that maybe Congress didn't 
anticipate or the administrative agency didn't anticipate. And 
in those instances, while I think it is the obligation of the 
judiciary to apply the statute that is before the judiciary, I 
think it is proper for us to say, look, this shows how this 
statute or this regulation plays out in the real world in this 
situation and maybe you didn't think about that and maybe 
that's something that you want to take into account if you're 
going to revise the statute or issue a new regulation. I think 
those are proper roles for us.
    Senator Grassley. What is your position regarding results-
oriented jurisprudence, where the rationale is made secondary 
to the actual result reached? When, if ever, is results-
oriented jurisprudence justified?
    Judge Alito. Results-oriented jurisprudence is never 
justified because it is not our job to try to produce 
particular results. We are not policymakers and we shouldn't be 
implementing any sort of policy agenda or policy preferences 
that we have.
    Senator Grassley. In the past few decades, certain interest 
groups and legal scholars and even some Members of Congress 
have tried to convert the Supreme Court from a legal 
institution into political, social, and cultural ones. Because 
of this, the Court has morphed in that direction, I believe, 
becoming a battlefield for warring interest groups who are 
raising and spending millions of dollars on disinformation 
campaigns and website blogs. There are even blogs going on all 
the time about this hearing. Do you think it is because the 
Supreme Court has injected itself into policy issues better 
left to the elected branches of government, or has the Supreme 
Court tried to act as kind of a roving commission, attempting 
to solve perceived societal problems, or maybe it is none of 
the above? What do you think can be done to restore the sense 
of constitutional balance between the Supreme Court and the 
Executive and legislative branches of government and 
understanding all are co-equal?
    Judge Alito. I think the branches are co-equal and I think 
that the judiciary as a whole, including the Supreme Court, 
must always be mindful of the role that it is supposed to play 
in our system of government. It has an important role to play, 
but it's a limited role and it has to do what it is supposed to 
do vigilantly, but it also has to be equally vigilant about not 
stepping over the bounds and invading the authority of Congress 
or invading the authority of the Executive or other government 
officials whose actions may be challenged. I think the 
challenge for the judiciary.
    Senator Grassley. Thank you, Judge Alito.
    Chairman Specter. Thank you, Senator Grassley.
    Senator Biden?
    Senator Biden. Thank you, Mr. Chairman. I understand, 
Judge, I am the only one standing between you and lunch, so I 
will try to make this painless.
    Judge, I would like to say a few very brief things at the 
outset. I am puzzled, and I suspect you may be puzzled by some 
of the questions. I don't think anybody thinks you are a man 
lacking in integrity. I don't think anybody thinks that you are 
a person who is not independent. I think that what people are 
wondering about and puzzled about is not whether you lack 
independence, but whether you independently conclude that the 
Executive trumps the other two branches. They wonder when you 
back--granted, it is back in 1985 or 1984 when you wrote, ``I 
do not question the Attorney General should have this immunity, 
has absolute immunity. But for tactical reasons,'' et cetera. 
So people are puzzled, at least some are puzzled, and so I 
don't want you to read any of this, at least from my 
perspective, as I have read it so far, that people think that 
this is a bad guy. What people are puzzled about with the 
recusal issue was under oath you said, ``I will recuse myself 
on anything relating to''--and then a case comes up. So they 
are looking for an explanation. So it is not about whether you 
are profiting or whether you are, you know, all this malarkey 
about what you broke judicial ethics. It is a simple kind of 
thing. You know, you under oath said, ``I promise if this ever 
comes up, I will recuse myself,'' and then you gave an 
explanation. You know, it slipped, you forgot, it had been 
years earlier, et cetera.
    So don't read it as, you know, this is one of these things 
where we know you are--the people I have spoken to on your 
court--and it is my circuit--have a very high regard for you, 
and I think you are a man of integrity. The question is 
sometimes some of the things you have said and done at least 
puzzle me. And I would like to--and one of the things--this is 
not part of the line of questioning I wanted to ask, but I did 
ask you when you were kind enough to come to my office about 
the Concerned Alumni of Princeton. Were you aware of some of 
the other things they were saying that had nothing to do with 
ROTC? Because there was a great deal of controversy.
    I mean, I can remember--I can remember this. My son was--
well, anyway, he ended up going to that other university, the 
University of Pennsylvania. But I remember, you know, 
Princeton. I had spoken on campus in the early 1970s. This was 
a big thing, up at Princeton at the Woodrow Wilson School. And 
I remember--I didn't remember Bill Frist, but I remember that 
there was this disavowing, that Bill Bradley, this great 
basketball star and now U.S. Senator, was, you know, 
disassociating himself with this outfit, that there was a 
magazine called Prospect. I remember the magazine. And all I 
want to ask is: Were you aware of the other things that this 
outfit was talking about? Were you aware of this controversy 
going on in 1972?
    Judge Alito. Senator, I don't believe that I was, and when 
it was mentioned that Senator Bradley had withdrawn from a 
magazine, that didn't ring any bells for me. I did not recall 
anything like that.
    Senator Biden. It was a pretty outrageous group. I mean, I 
believe you that you were unaware of it, but here I was, 
University of Delaware graduate, a sitting U.S. Senator. I was 
aware of it because I was up there on the campus. I mean, it 
was a big deal. It was a big deal, at least in our area, the 
Delaware Valley, if you know Princeton, Penn, the schools 
around there had this kind of--because the big thing was going 
on at Brown at the time as well.
    And, by the way, for the record, I know you know. When you 
stated in your application that you are a member--you said in 
1985, ``I am a member''--they had restored ROTC. I mean, ROTC 
was back on the campus. But, again, this is just by way of, you 
know, why some of us are puzzled, because if I was aware of it 
and I didn't even like Princeton.
    [Laughter.]
    Senator Biden. No, I mean, I really didn't like Princeton. 
I was an Irish Catholic kid who thought it hadn't changed like 
you concluded it had. I mean, you know, I admit, I have a 
little--you know, one of my real dilemmas is I have two kids 
who went to Ivy League schools. I am not sure my Grandfather 
Finnegan will ever forgive me for allowing that to happen.
    But all kidding aside, I was not a big Princeton fan, and 
so maybe that is why I focused on it and no one else did. But I 
remember at the time.
    The other thing is, Judge, you know, the other thing you 
should be aware of--and kind of don't take this personally what 
is going on here--every nominee who comes before us is viewed 
by all the Senators, left, right, center, Democrat, Republican, 
at least on two levels, at least in my experience here. One is, 
the first one, individual qualifications and what their 
constitutional methodology, their views are, their philosophy. 
But the other is--and it always occurs--whose spot they are 
taking and what impact that will have on the Court. Everybody 
wrote with Roberts after the fact--and a lot of people voted 
for Roberts that were doubtful. I was doubtful. I voted no. But 
he was replacing Rehnquist. So Roberts for Rehnquist, you know, 
what is the worst that can happen, quote-unquote, or the best 
that can happen?
    Now, I am not being facetious. What is the best or worst? 
If you are conservative, the best that can happen is he is as 
good as Rehnquist. From the standpoint of someone who is a 
liberal, the worst that can happen, he is as good as Rehnquist.
    So, I mean, but you are replacing--I mean, we can't lose 
this, and so people understand this. You are replacing someone 
who has been the fulcrum on an otherwise evenly divided Court. 
And a woman who most scholars who write about her and in a 
retrospective about her say this is a woman who viewed things 
from--the phrase you have used--a real-world perspective. This 
was a former legislator. This was a former practitioner. This 
was someone who came to the bench and applied--to her critics, 
she applied too much common sense. Critics would say that she 
was too sensitive to the impact on individuals, you know, what 
would happen to an individual. So her focus on the impact on 
individuals was sometimes criticized and praised. It is just 
important you understand, at least for my questioning, that 
this goes beyond you. It goes to whether or not your taking her 
seat will alter the constitutional framework of this country by 
shifting the balance, 5-4, 4-5, one way or another.
    And that is the context in which at least I want to ask you 
my questions after trying to get some clarification or getting 
some clarification from you on Concerned Princeton--because, 
again, a lot of this just is puzzling, not able to be answered, 
just puzzling.
    Judge, you and I both know--and clearly one of the 
hallmarks, at least in my view, of Justice O'Connor's position 
was she fully understood the real world of discrimination. I 
mean, she felt it. Graduated No. 2 in her class from Stanford, 
could not get a job, was offered a job by law firms. Granted, 
she is a little older than you are, but could not get a job 
because she was a woman. They offered her a job as a secretary. 
And so she understood what I think everybody here from both 
ends of the spectrum here understand, that discrimination has 
become very sophisticated. It has become very, very 
sophisticated, very much more subtle than it was when I got 
here 34 years ago or 50 years ago. And employers don't say 
anymore, you know, ``We don't like blacks in this company,'' or 
``We don't want women here.'' They say things like, ``Well, 
they wouldn't fit in,'' or, you know, ``They tend to be too 
emotional,'' or, you know, ``a little high-strung.'' I mean, 
there are all different ways in which now it has become so much 
more subtle. And that is why we all, Democrat and Republican, 
wrote Title VII. We wrote these laws to try to get at what we 
observed in the real world.
    What we observed in the real world is it is real subtle, 
and so it is harder to make a case of discrimination, even 
though there is no doubt that it still exists.
    And so I would like to talk to you about a couple of anti-
discrimination cases. One is the Bray case. In that case, a 
black woman said she was denied a promotion for a job that she 
was clearly qualified for--there was no doubt she was 
qualified--and she said, ``I was denied that job because I am a 
black woman.'' And it was, as I said, indisputable she was 
qualified. It was indisputable that the corporation failed to 
follow their usual internal hiring procedures. And the 
corporation gave conflicting explanations as to why they 
reached a decision to hire another woman who they asserted was 
more qualified than Ms. Bray.
    Now, the district court judge said, you know, Ms. Bray had 
not even made a prima facie case here--or she made a prima 
facie, but she had not made a sufficient showing to get to a 
jury, I am finding for the corporation here. And Ms. Bray's 
attorney appealed, and it went up to the Third Circuit. And you 
and your colleagues disagreed. Two of your colleagues said, you 
know, Ms. Bray should have a jury trial here, and you said, no, 
I don't think she should, and you set out a standard, as best I 
can understand it. And I want to talk to you about it. And your 
colleagues said that if they applied your standard in Title VII 
cases, discrimination cases, that it would effectively, their 
words, ``eviscerate Title VII,'' because, they went on to say, 
it ``ignores the realities of racial animus.'' They went on to 
say that ``Racial animus runs so deep in some people that they 
are incapable of acknowledging that a black woman is qualified 
for a job.''
    But, Judge, you dismissed that assertion. You said that the 
conflicting statements that the employer made were just loose 
language, and you expressed your concern about allowing 
disgruntled employees to impose costs of a trial on employers. 
And so your colleagues thought you set the bar, I think it is 
fair to say, pretty high in order to make the case that it 
should go to a jury.
    Can you tell me what the difference is between a business 
judgment as to who is most qualified--because actually you said 
this comes down to ``subjective business judgment''--and 
discrimination? You said, ``Subjective business judgment should 
prevail unless the qualifications of the candidate are 
extremely disproportionate.'' What is the difference between 
that in today's world and discrimination? I know you want to 
eliminate discrimination. Explain to me how that test is 
distinguishable from just plain old discrimination.
    Judge Alito. Well, this case was one of quite a few that we 
get that are on the line, and I think when you think about the 
nature of the appellate system, it stands to reason that it is 
going to work out that way. The really strong cases tend to 
settle; the really weak cases are either dismissed and not 
appealed, or they settle for modest amounts. So the ones that 
are hotly contested on appeal tend to be the ones that are 
close to the line, whatever the legal standard is.
    Now, four Federal judges looked at the facts in this case. 
One was Judge Maryanne Trump Barry, who was then the district 
court judge and is now one of my colleagues on the Third 
Circuit. I was one. And we thought the evidence was not quite 
sufficient. And then my colleague, Theodore McKee, and Judge 
Green, a district court judge from Philadelphia, a fine 
district court judge, sitting by designation, thought that the 
evidence was sufficient. And I think that division illustrates 
this was a factual case on which reasonable people would 
disagree. This was a case in which there was no direct evidence 
of discrimination, and I could not agree with you more that we 
can't stop there. There are subtle forms of discrimination, and 
the judicial process has to be attentive to the fact that 
discrimination exists and today a lot of it is driven 
underground.
    But all there was in this case were--all that the plaintiff 
could point to to show that there were facts from which you 
could infer discrimination were a very--what looked like a 
really minor violation of the company's internal practices. 
They had a policy under which if somebody was being considered 
for a promotion, they would interview that person and they 
would decide we are going to promote or we are not going to 
promote. And if they decided they were not going to promote, 
then they were supposed to tell that person, ``We've decided 
we're not going to promote you,'' before they go on to 
interviewing the next person. And in this instance, it appeared 
that they interviewed Ms. Bray, and they decided they weren't 
going to promote her. And then they interviewed the other 
candidate, Ms. Real, before they told Ms. Bray that they 
weren't going to promote her.
    There was no--they had nothing to gain by doing that. So it 
is a fact to be considered--
    Senator Biden. Judge, I don't mean to interrupt. I want to 
make sure I understand. I think the reason for that policy is 
that that is the way people do discriminate. For example, you 
get somebody in, a woman, a black, a Hispanic, whomever, who is 
qualified but you don't want to hire them. And if you say, OK, 
in your own mind, I am going to keep looking until I find 
someone who is more qualified so that I don't have to hire--I 
mean, just so we both understand. That is why that rule is 
there. It is not just a little deal. It is the real world. That 
is how people work. People don't say anymore, ``I am not going 
to hire that man over there because he is black'' or ``he is 
Jewish'' or ``she is a woman.'' They don't do that anymore. 
What they do is they look around and they keep looking until 
they find someone, aha, I got one here who is a Rhodes scholar, 
I got one here who is a white male who happened to have 
experience doing it. That is why they have that rule.
    So, again, I am not questioning your commitment to civil 
rights. What I do wonder about is whether or not you--it is 
presumptuous of me to say this--whether you fully appreciate 
how discrimination does work today. That is why the corporation 
set that rule up: Interview the one inside the company, that 
was our practice, hire inside, tell them they have the job or 
not, so that the supervisor, who may not want to work with a 
black woman, doesn't get a chance to go, ``I am going to keep 
looking. Send me in''--``find me somebody who has some 
experience somewhere else.'' That is why they have the rule, 
right?
    Judge Alito. Well, I think you make a good point, Senator, 
but in this instance, my recollection is--and, in fact, I am 
quite sure of this. These were both people who were from the 
inside. They were both Marriott employees. And I think they 
were both being considered for the position at the time. So it 
wasn't an instance in which they interviewed Ms. Bray and then 
they said, ``Well, she is qualified, but we really don't want 
to hire her. Let's keep looking.''
    If there had been evidence to that effect, then I would 
certainly think for the reasons that you've outlined that you 
could draw a pretty substantial inference of an intent to 
discriminate from that.
    Senator Biden. Well, Judge--
    Judge Alito. But nothing like that was presented to us in 
that case, as I remember it.
    Senator Biden. Weren't the facts in that case also that 
there was a Mr. Josten, who had held the very job--he was 
leaving the job. That is the job being filled. He said, ``In my 
opinion, which I let be known''--excuse me. I beg your pardon. 
It wasn't Mr. Josten. The person who was giving up the job 
said, ``In my opinion, I let it be known to Mr. Josten''--the 
guy doing the hiring--``which Mr. Josten was aware of, that 
Bray was more than qualified to take over my position as 
Director of Services at Park Ridge. To this day''--this is a 
quote--``I cannot understand why she was not offered the 
position.'' That was in the record. It was in the record that 
Josten had said in a deposition under oath she is not 
qualified, when she clearly was qualified.
    I mean, I guess what I am curious about is why in a close 
case like this wouldn't you let the jury decide it? Why did you 
become essentially the trier of fact? I mean, what was your 
thinking?
    Judge Alito. Well, my thinking was that the standard we 
were to apply was could a reasonable jury find that 
discrimination was proven here. And it was my view and it was 
the view of the district judge that a reasonable jury couldn't 
find that. The district judge actually looked at the 
qualifications of the two candidates and said, ``This isn't 
even close. Ms. Real is much better qualified than Ms. Bray.''
    Now, I didn't say that and I didn't think that. I thought 
that they had somewhat different qualifications, and a 
reasonable person could view it either way. But there just 
wasn't anything that I saw that a reasonable person could point 
to as a basis for a reasonable inference of an intent to 
discriminate.
    Senator Biden. Well, again, I am puzzled by this, just 
trying to understand your reasoning, because as you accurately 
point out, you didn't say the one was more qualified. You said 
they were equally qualified. And that is what puzzled me. And 
what really got my attention in the case was you have a 
collegial court, you know, the Third Circuit. I mean, that is 
my observation. I don't follow it quite as closely as the man 
who has appointed about everybody on that court, our Chairman. 
But I follow it very closely, and I thought it was pretty 
strong language that the majority of your panel said that your 
standard would eviscerate the Ninth Amendment. That in Third 
Circuit language is a pretty strong statement.
    Let me move on to another case, if I may, the Sheridan 
case, another discrimination case. Again, a little puzzling to 
me. This is a case where you were the only judge in this 
circumstance out of 11 judges on your circuit who heard the 
appeal who ruled that a jury trial should have been overruled--
a jury verdict should have been overruled. In this case, a 
woman alleged that she was constructively discharged. For the 
non-lawyers listening to this, it means she basically was 
demoted to the point where she was, as a practical matter, 
forced to quit.
    This woman alleged that she was constructively discharged, 
and she argued that it occurred after she had brought a 
discrimination claim and where the record showed that her 
employer said, ``I am going to hound you like a dog.'' It was 
in the record. ``I am going to hound you like a dog for 
bringing this discrimination claim.''
    Now, there was more than one issue. One was whether this 
was vindictive--I forget the proper phrase--or whether or not 
she should have been promoted. The third was whether she was 
constructively discharged.
    And the jury heard the case and said, ``We conclude she was 
constructively discharged,'' i.e., she was basically forced 
out, and she was forced out because she was being discriminated 
against. And 10 out of 11 of your colleagues reached that same 
conclusion.
    But you said--and this is what I want you to explain to me. 
You said, ``An employer may not wish to disclose his real 
reasons for taking punitive action against someone or not 
hiring someone or for his animosity toward someone.'' And you 
went on to say, ``The reason for the animosity on the part of 
the employer might be based on sheer personal antipathy,'' 
which is OK.
    Now, again, this is a matter of real world versus, you 
know, theoretically. Can you tell me how you can tell the 
difference when an employer is saying, ``Ms. Feinstein, I am 
not going to hire you because the person seeking the job has a 
Rhodes scholarship and I like him better, and it turns out they 
weren't a Rhodes scholar. The real reason is I just don't like 
your glasses. I don't like the way you look.''
    I am not being facetious. That is--
    [Laughter.]
    Senator Leahy. I like the way you look, Dianne. You look 
OK.
    Senator Biden. For the record, I am a fan of the woman from 
California.
    But all kidding aside, I mean, that is how it read to me, 
that sheer personal antipathy is OK even when the employer's 
reason for not hiring the person toward whom they showed sheer 
personal antipathy wasn't true. How do you distinguish that 
from discrimination, subtle discrimination? That is tough for 
me.
    Judge Alito. Well, this case concerned an issue that had 
really divided the courts of appeals at the time when our court 
addressed it. And the courts of appeals--this gets into a 
fairly technical question involving a Supreme Court case called 
the McDonnell Douglas case. But to put it in simple terms, the 
courts of appeals have divided into three camps on this. There 
was the pretext-plus camp, which was the one that was the least 
hospitable to claims by employees. There was the pretext-only 
camp, which was the camp that was most favorable to employees. 
And there was the middle camp. And my position was in the 
middle camp, and when the issue went to the Supreme Court--and 
it did a couple of years later--in Reeves v. Sanderson 
Plumbing, Justice O'Connor wrote the opinion for the Supreme 
Court, and she agreed with my analysis of this legal issue, 
that in most instances pretext is sufficient. In fact, in the 
vast majority of instances if the plaintiff can show or could 
point to enough evidence to show that the reason given by the 
employer is a pretext, is incorrect, then that is enough to go 
to the jury. In the vast majority of cases, that is sufficient, 
but not in every case, and that is what I said in Sheridan and 
that is what Justice O'Connor said when she wrote the opinion 
for the Supreme Court in Reeves v. Sanderson Plumbing.
    Senator Biden. Well, I went back and read Reeves and I 
looked at O'Connor's statements, and with all due respect you 
could argue she used the same standard, but it is clear to me 
she would have reached a different conclusion. She would have 
been with your ten colleagues.
    Here is what she said. She said in the Reeves case that she 
would not send the case to the jury if, and I am quoting, 
``One, the record conclusively revealed some other non-
discriminatory reason for the employer's decision.'' I fail to 
see how the record conclusively showed that, and I doubt 
whether she would have seen that.
    Or, two, continuing to quote, ``If the plaintiff created 
only a weak issue of fact as to whether the employer's reason 
was untrue and there was abundant uncontroverted evidence that 
no discrimination had occurred.'' It seems to me she is much 
more prepared to give the benefit of the doubt to the employee 
in that situation and you are much prepared to give the benefit 
of the doubt to the employer.
    I mean, by her own language, I find it hard to figure how 
she would have reached the same substantive conclusion that you 
did that a jury trial wasn't appropriate, notwithstanding the 
fact that I think you make a good point that the test she said 
was more like the test you said. But the real-world outcome, I 
think, she would have been--presumptuous of me to say it--I 
think it would have been 11 to 1 and not 10 to 2 had she been 
on the court, but who knows?
    Judge Alito. Well, Senator, I think the vote on my court 
was a reflection of the standard that they applied and they did 
not apply the Reeves v. Sanderson Plumbing standard. Of course, 
Reeves hadn't been decided at that point, but they applied the 
standard that said if the plaintiff can create a fact issue as 
to whether it was pretextual, then that alone is sufficient. So 
they didn't get into an evaluation of the sort of evidentiary 
points that you were mentioning.
    Senator Biden. Well, they kind of did talk--you would know 
better than I, Judge. I don't mean to suggest I am correcting 
you, but as I read the case, they did get into the minutia 
about--
    Judge Alito. They did.
    Senator Biden [continuing]. The factual minutia. And in the 
Reeves case, O'Connor, not that it is--because there are two 
different cases we are talking about here; we are talking about 
a similar rule, two different cases. O'Connor reversed the 
Fifth Circuit decision and here is what she said when she 
reversed it. She said that she reversed the lower court 
because, quote, ``It proceeded from the assumption that a prime 
facie case of discrimination combined with sufficient evidence 
for the trier of fact to disbelieve the defendant's legitimate 
non-discriminatory reason for its decision is insufficient as a 
matter of law to sustain a jury finding of intentional 
discrimination.''
    It seems to me that is what you did. In my view, that is 
what you did--that is the conclusion you reached in the 
Sheridan case. She overruled in Reeves, as I read it. But at 
any rate, as someone once said, it is your day job and we do 
this part-time. We have other things like wars and foreign 
policy to deal with, so I am not presuming to be as 
knowledgeable about this as you are.
    Let me move on to a third case very quickly--I only have 
two-and-a-half minutes left--and it is the Casey case, Planned 
Parenthood. And I don't care what your position is on abortion. 
This is not about your abortion position. It is about your 
reasoning here. As a matter of fact, with 2 minutes and 30 
seconds, I probably can't get into the case. maybe I should do 
it in a second round, but I should tell you now I want to talk 
to you about, again, the real world here and kind of the 
effects test.
    And so for me, Judge, where I am still remaining somewhat 
puzzled is on whether or not you--whether it is applying the 
unitary Executive standard and what you mean by that or whether 
it is the assertions made relative to how to look at 
discrimination cases, which are difficult, you seem to come 
down--I am not associating myself with the studies done--I 
don't know enough to know whether they are correct or not--by 
Cass Sunstein or others. I don't disagree with them.
    But as I have tried diligently to look at your record, you 
seem to come down more often and give the benefit of the doubt 
to the outfit against whom discrimination is being alleged. You 
seem to lean--in close cases, you lean to the state versus the 
individual. Now, again, a lot of constitutional scholars would 
argue that is perfectly correct.
    All I am suggesting is if I am right--and we will get a 
chance to do this again--if I am right, that would be a change 
that will occur, more than subtle, on the bench, on this Court, 
on a closely divided Court, which would take it in a direction 
that I am not as comfortable with as others may be.
    But at any rate, you have been very gracious. I appreciate 
you being responsive, and I thank the Chair. And I want to note 
for maybe the first time in history, Biden is 40 seconds under 
his time.
    [Laughter.]
    Chairman Specter. Thank you very much, Senator Biden. It is 
greatly appreciated.
    We are going to stay in session for just ten more minutes 
and call now on Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Chairman, let me begin by just asking the witness if 
you would like to comment again on the unitary Executive. I 
have this specifically in mind because while I think I 
understood your explanation of it, Senator Biden just referred 
to it and I thought maybe it would be useful to draw the 
distinction that I heard you draw with respect to your 
discussion of the unitary Executive power, if you could do 
that, please.
    Judge Alito. Yes, certainly, Senator. As I understand the 
concept, it is the concept that the President is the head of 
the Executive branch. The Constitution says that the President 
is given the Executive power and the idea of the unitary 
Executive is that the President should be able to control the 
Executive branch, however big it is or however small it is, 
whether it is as small as it was when George Washington was 
President or whether it is as big as it is today or even 
bigger.
    It has to do with control of whatever the Executive is 
doing. It doesn't have to do with the scope of Executive power. 
It does not have to do with whether the Executive power that 
the President is given includes a lot of unnamed powers or what 
is often called inherent power. So it is the issue--it is the 
difference between scope and control. And as I understand the 
idea of the unitary Executive, it goes just to the question of 
control. It doesn't go to the question of scope.
    Senator Kyl. Of who eventually has the last say about 
Executive power, which would be the President?
    Judge Alito. Right.
    Senator Kyl. OK, thank you. Now, I want to also ask you a 
question which was asked of Judge Bork in his confirmation 
hearing, and his answer, as I understand it, was not well 
accepted by some Members of the Senate, was expressed as one of 
the reasons for their opposition to him. So it is more than 
just a mundane question, although it is a simple question.
    By accepting the President's nomination, you have obviously 
expressed a willingness to serve on the U.S. Supreme Court. So 
my question is why would you want to serve on the U.S. Supreme 
Court?
    Judge Alito. I think it is an opportunity for me to serve 
the country using whatever talent I have. I think that the 
courts have a very important role to play, but it is a limited 
role. So it is important for them to do a good job of doing 
what they are supposed to do, but also not to try to do 
somebody else's job.
    And I think that this is an area for--this is a way in 
which I can make a contribution to the country and to society. 
I have tried to do that on the court of appeals and I would 
continue to do that if I am confirmed for the Supreme Court.
    Senator Kyl. Thank you. Now, let me ask you a question that 
I also asked now Chief Justice John Roberts, and it is obvious 
from my question that I do not support the use of foreign law 
as authority in United States court opinions.
    I mentioned to him the 2005 case of Roper v. Simmons, in 
which the Supreme Court spent perhaps 20 percent of its legal 
analysis discussing the laws of Great Britain, Saudi Arabia, 
Yemen, Iran, Nigeria and China. And I reminded the Committee of 
Justice Breyer's 1999 dissent from denial of cert in Knight v. 
Florida, in which he relied on the legal opinions of Zimbabwe, 
India, Jamaica and Canada in arguing that a delay caused by a 
convicted murderer's repeated appeals, appeals brought by the 
convict, should be considered cruel and unusual punishment.
    I expressed my view that reliance on foreign law is 
contrary to our constitutional traditions. It undermines 
democratic self-government and it is utterly impractical, given 
the diversity of legal viewpoints worldwide. And I would add 
that it is needlessly disrespectful of the American people, as 
seen through the widespread public criticism of the trend.
    Now, with my cards on the table, I turn to you. What is the 
proper role, in your view, of foreign law in U.S. Supreme Court 
decisions, and when, if ever, is citation to or reliance on 
these foreign laws appropriate?
    Judge Alito. I don't think that foreign law is helpful in 
interpreting the Constitution. Our Constitution does two basic 
things. It sets out the structure of our Government and it 
protects fundamental rights. The structure of our Government is 
unique to our country, and so I don't think that looking to 
decisions of supreme courts of other countries or 
constitutional courts in other countries is very helpful in 
deciding questions relating to the structure of our Government.
    As for the protection of individual rights, I think that we 
should look to our own Constitution and our own precedents. Our 
country has been the leader in protecting individual rights. If 
you look at what the world looked like at the time of the 
adoption of the Bill of Rights, there were not many that 
protected human--in fact, I don't think there were any that 
protected human rights the way our Bill of Rights did.
    We have our own law, we have our own traditions, we have 
our own precedents, and we should look to that in interpreting 
our Constitution. There are other legal issues that come up in 
which I think it is legitimate to look to foreign law. For 
example, if a question comes up concerning the interpretation 
of a treaty that has been entered into by many countries, I 
don't see anything wrong with seeing the way the treaty has 
been interpreted in other countries. I wouldn't say that that 
is controlling, but it is something that is useful to look to.
    In private litigation, it is often the case--I have had 
cases like this in which the rule of decision is based on 
foreign law. There may be a contract between parties and the 
parties will say this contract is to be governed by the laws of 
New Zealand or wherever. So, of course, there, you have to look 
to the law of New Zealand or whatever the country is.
    So there are situations in litigation that come up in 
Federal court when it is legitimate to look to foreign law, but 
I don't think it is helpful in interpreting our Constitution.
    Senator Kyl. Thank you. Now, let me close with this 
question. In the Judiciary Committee's questionnaire to you, 
you were asked about your views of judicial activism, and as 
part of your answer you said something intriguing to me. You 
said some of the finest chapters in the history of the Federal 
courts have been written when Federal judges, despite 
resistance, have steadfastly enforced remedies for deeply 
rooted constitutional violations.
    How does one determine that a constitutional violation is 
deeply rooted, and can you elaborate on what you meant by that 
and when Federal courts should be especially aggressive in 
their use of equitable powers?
    Judge Alito. Well, what I was referring to were the efforts 
of Federal judges, lower Federal court judges in the South 
during the days after the decision in Brown v. Board of 
Education to try to implement that historic decision, despite 
enormous public resistance at times. But they--this was an 
example of the Federal judiciary not swaying in the wind of 
public opinion. There was a lot of opposition and I am sure 
that it didn't make them popular.
    I have read a number of books concerning the situation in 
which they found themselves, but on the whole they behaved--
they did what a Federal judge is supposed to do, which is that 
they enforced the decision of the Supreme Court of the United 
States that, after a long delay, vindicated what the Equal 
Protection Clause of the 14th Amendment was supposed to mean, 
which was to guarantee equal rights to people of all races.
    Senator Kyl. Are there other examples that come to your 
mind of that same application of power? It seems counter 
intuitive, but when you think about it, it is absolutely 
essential for the courts sometimes to buck public opinion and 
enforce what may be considered unpopular laws.
    Judge Alito. Well, there were some examples cited earlier 
today when the courts said that the Executive had overstepped 
the bounds of its authority. The Youngstown Steel case was 
cited, and that is certainly an example where President Truman 
thought that it was necessary to seize the steel mills so as 
not to interfere with the war effort in Korea. But the Supreme 
Court said that this was an overstepping of the bounds of 
Executive authority.
    There was a reference to United States v. Nixon where the 
Supreme Court said that the President of the United States had 
to comply with grand jury subpoena for documents and they stood 
up for what they understood the law to mean, despite the fact 
that there must have been great pressure against them in 
another direction. So when situations like that come up, it is 
the responsibility of the judiciary to hold fast.
    Senator Kyl. Mr. Chairman, since there are just about 30 
seconds left here, rather than ask another question, let me 
just close with quoting three sentences from the letter sent by 
the American Bar Association to you dated January 9. I thought 
this was especially interesting in view of the subjects that 
they dealt with--the integrity of the nominee, as well as his 
abilities and character.
    They said, ``Fifty years ago, a Supreme Court Justice wrote 
of the traits of character necessary to serve well on the 
Supreme Court. He referred to the ability to put one's passion 
behind one's judgment instead of in front of it and to 
demonstrate what he called dominating humility. It is the 
belief of the Standing Committee that Judge Samuel Alito 
possesses those same qualities.''
    I think that is quite a testament to your character and 
your integrity, and I am sure you appreciate the Bar 
Association reaching that conclusion.
    Judge Alito. Thank you very much, Senator.
    Chairman Specter. We will now recess until 2:15, at which 
time Senator Kyl will be recognized for 20 minutes, which is 
the balance of his 30-minute first round.
    Recess until 2:15.
    [Whereupon, at 1:04 p.m., a luncheon recess was taken.]
    [AFTERNOON SESSION 2:15 p.m.]
    Chairman Specter. We will turn now to Senator Kyl, who has 
20 more minutes on his first round of 30 minutes.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. First let me ask 
unanimous consent to put three items in the record, one of 
these items related to--actually, two of them relate to the 
matter of the CAP that we have heard something about. I would 
like to enter into the record two letters by Democratic 
attorneys that make clear that Judge Alito has been extremely 
helpful in advancing the interest of women and minorities. One 
letter notes that as U.S. Attorney, he put women and minorities 
in supervisory positions. The other is from the President-elect 
of the National Bar Association for Women.
    And also a Washington Post article from January 9th, in 
which criminal defense lawyer and Democrat, Alberto Rivas, who 
served in the U.S. Attorney's Office when Judge Alito was in 
charge said, speaking of the judge, ``While he opposed numeric 
hiring quotas, he took steps to diversify an office that had 
the reputation of something of a white boys' club.
    Mr. Chairman, I hope that this will help address what I 
think is almost getting to be a--
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Kyl. Thank you. Secondly, there has been some 
discussion of this Knight-Ridder article that has, to be my 
understanding, been rather completely discredited, and I ask 
unanimous consent that the attached document analyzing that 
article be added to the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. Before the break, Senator Biden suggested 
that--at least I understood him to suggest that there was no 
reason to belong to this organization, CAP, in 1985 because 
ROTC was safely on campus at that time.
    Judge, let me ask you a question. Do you know what year you 
joined the CAP?
    Judge Alito. I don't know, Senator. I tried to rack my 
memory about that, but as I said, if I had been active in my 
membership, I think I certainly would have remembered that, and 
if I had renewed the membership, I think I would remember that. 
So my best reconstruction of this is that it probably was 
sometime around the time when I wrote that statement.
    Senator Kyl. Long after you were gone from the school.
    Judge Alito. That's correct.
    Senator Kyl. In that event, Mr. Chairman, I ask unanimous 
consent to include in the record an article from the campus 
newspaper, the Princeton Packet, dated February 12th, 1985, 
which expressly explains that ROTC was a core motivation behind 
the CAP in 1985.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. Thank you. Mr. Chairman, I noted with interest 
a comment that Senator Durbin made in his opening statement 
because it referred to a good friend and former colleague of 
ours, Senator Simon, who put forth a pretty good test about 
courts. He said that the real test is, is the Court restricting 
freedom or expanding it? I thought about that because it seems 
to me that so many of these cases about expanding freedom or 
restricting it are cases that boil down to the eye of the 
beholder.
    I specifically thought about the Ninth Circuit case, 
because my State is from the Ninth Circuit, outlawing ``under 
God'' in the Pledge of Allegiance, saying that that is 
unconstitutional. I checked, according to the one survey that I 
had access to, 93 percent of the American people support the 
right to say ``under God'' in the Pledge of Allegiance. I know 
that the plaintiff in the case, Michael Newdow, thought that he 
was advancing his freedom or his daughter's freedom in 
successfully getting the Court to strike it down, but it seems 
to me that the majority of the people are having their freedom 
restricted in such a case.
    And I certainly will not ask you because that case could 
well come before the Court again. I would not ask you how you 
would rule on it. But as a general proposition, this matter of 
restricting freedom, is it not the case that in many situations 
you have two competing types of freedom or liberty involved and 
it is a question of interpreting the Constitution rather than 
specifically setting out to advance one sort of freedom as 
opposed to another?
    Judge Alito. I think that's exactly right, Senator. Often 
there are conflicting freedoms and that makes the case 
difficult.
    Senator Kyl. Let me ask you too, there was a concern 
expressed by Senator Biden that the big factor in your 
nomination in his view was the fact that you would be replacing 
Justice Sandra O'Connor, and that that might mean that you 
would change the direction of the Court. That is the concern 
expressed anyway. As has been famously said, I know Justice 
O'Connor. I have been a friend of hers for at least 30 years, 
and I do not think she is any kind of a liberal member of the 
Court. She might properly be called moderately conservative. I 
am not sure how she would characterize herself. But I noted 
that of the 109 Justices to sit on the Supreme Court, nearly 
half, 46 to be exact, have replaced judges appointed by another 
political party, so it is not at all uncommon, indeed, it is 
almost half the situations in which a different party nominates 
the Justice replacing a sitting Justice, and one might expect, 
therefore, some difference.
    But I checked the record because this had been brought up 
by Senator Brownback yesterday. I found in the nomination of 
Justice Ginsburg and the confirmation hearings there, she 
replaced Justice White, who I think rightly has been called a 
centrist on the Court, certainly not a liberal, and yet I saw 
not one expression of concern by any Senator, Democrat or 
Republican, that Justice Ginsburg might be ruling quite a bit 
differently than Justice White in decisions in the Court.
    So it seems to me that that is not a test that is rightly 
applied. That is a results-oriented test, exactly the same kind 
of thing that you have said that judges should not do when they 
approach cases.
    Let me get to a point that Senator Kennedy made. He said 
that you have been overly deferential to Executive power, and 
criticized what he called--and I think I have this quotation 
exactly--``your almost total disregard of the impact of these 
powers on the rights of individuals.'' I would like to know 
what your response is to that charge and whether you can cite 
some specific cases that would refute what he said.
    Judge Alito. Certainly, Senator. I have tried to decide 
every case on its own merits, and sometimes that means siding 
with the Government, and sometimes it means siding with the 
party who's claiming a violation of rights, and I do it on an 
individual basis. Cases that show that I do that are cases like 
United States v. Kithcart, which was a case in which an 
African-American man had been stopped by police officers 
because he was--because there had been a description of some 
robbery suspects, and they had been described as--the 
perpetrator was described as a black man in a black car, and 
Mr. Kithcart was a black man in a black car. And they thought 
that was sufficient to stop the car, and I wrote an opinion 
saying that that was insufficient, and that was basically 
racial profiling and was not permitted.
    Another example is Bolden v. Southeastern Pennsylvania 
Transportation Authority, which had to do with a drug test, and 
I found that the test there constituted a search and a seizure 
and would be a violation absent consent on the part of the 
party who was searched. There have been a number of criminal 
cases in which I've sided with the person claiming a violation 
of rights. Carpenter v. Vaughn was a case in which I wrote an 
opinion reversing a death--I joined an opinion reversing a 
death penalty. The Bronshtein case was another case that came 
up fairly recently in which I joined an opinion reversing a 
death penalty. There have been quite a few cases of this 
nature, Senator.
    Senator Kyl. I noted a tax case too, or a case involving 
tax evasion, Leveto v. Lapina. Do you remember that 2001 case?
    Judge Alito. I do. That was the case in which there was a 
search of a--I believe it was the office of a veterinarian, and 
in a way that is a similar case to the Mellott case that I was 
discussing earlier, although in Mellott I thought that the 
search was carried out properly. In the Leveto case, on the 
facts of that case, I thought the search was not carried out 
properly, that the officers violated the Fourth Amendment in 
the way they went about carrying out that search. They forced 
the occupants of these premises to remain on the premises for a 
very extended period of time while the search was being 
conducted, and violated their Fourth Amendment rights, and 
that's what I said in the opinion.
    Senator Kyl. Do you have an idea of how many cases that 
have gone to decision that you have participated in on your 15 
years as a Circuit Court Judge?
    Judge Alito. I think it's well over 4,000 on the merits.
    Senator Kyl. I suspect that of those 4,000 cases there 
might be one or two that I would disagree with your decisions 
on, maybe even more than that. But the point here is there are 
numerous cases in which you have found that the Government 
acted improperly in criminal law context, in warrant context, 
in discrimination context, in other cases in which you have 
found either that the Government acted properly, or that at a 
minimum, Government officials were entitled to some immunity 
with respect to being privately sued; is that correct?
    Judge Alito. That's correct, Senator.
    Senator Kyl. Let me also address this question of 
discrimination, especially racial discrimination. This is a 
matter that was discussed in some prior questioning. 
Specifically, in Senator Biden's questions, it dealt with the 
Sheridan case in which you were the sole dissenter. In the 
subsequent U.S. Supreme Court case, the Reeves decision, my 
understanding from your answer is that the Supreme Court 
addressed the same issue of law that you and your colleagues 
had disagreed about, and that the U.S. Supreme Court voted 
unanimously, and in an opinion written by Justice O'Connor, 
that the test that you used in the Sheridan case was the 
correct test to use; is that correct?
    Judge Alito. Yes, Senator, that is correct.
    Senator Kyl. Now, there are some other cases involving 
employees claiming racial discrimination that I have looked at, 
and one of the Senators seemed to suggest in a comment that he 
made that you had never written opinions or decided cases for a 
black plaintiff. Is that a fair statement?
    Judge Alito. No, it's not accurate.
    Senator Kyl. Do you recall cases in which you upheld the 
discrimination claims of racial minorities?
    Judge Alito. There was the case of Goosby v. Johnson & 
Johnson, and that case could be considered together with the 
Bray case that I was discussing before the break. Those were 
both cases in which my colleague, Judge McKee wrote the 
opinion, and in the Goosby case I agreed with him. It was a 
similar case, but it was a case where I thought the facts fell 
on the other side of the line.
    There was a case called Smith v. Davis, which was another 
case where I joined an opinion upholding the claim of an 
African-American who was claiming racial discrimination. The 
Robinson case involved claims of race and gender 
discrimination, as I recall. There are a number of cases in the 
criminal law context. I just mentioned the Kithcart case. There 
was the Brinson case. There was Williams v. Price. There have 
been many cases involving other forms of discrimination, age 
discrimination, the Showalter case; disability case, the 
Mondzelewski case; the case of Shapiro v. Lakewood Township. 
There was Zubi v. AT&T, which was a case involving the statute 
of limitations for a claim of racial discrimination.
    Senator Kyl. And you were the lone dissenter in that case, 
is that correct?
    Judge Alito. I was the dissenter in that case.
    Senator Kyl. And your position was what?
    Judge Alito. My position was that--the majority's position 
was that the claim had to be thrown out because the statute of 
limitations had been violated, and my position was that the 
claim should be allowed to go forward because the statute of 
limitations was longer than the majority had recognized. And 
that case--that issue later went to the Supreme Court in a case 
called Jones v. Donnelley and the Supreme Court agreed with my 
position, that the longer statute of limitations applied.
    Senator Kyl. I note there is another case involving an 
African-American woman who claimed that her coworkers had made 
racial and sexual slurs against her, denied her training 
opportunities and so on, and you ruled that she was entitled to 
$124,000 in damages and attorneys' fees, a case called Reynolds 
v. USX Corporation. Do you remember that case?
    Judge Alito. That's right, Senator.
    Senator Kyl. So the bottom line is there are numerous cases 
in which you have ruled in favor of minorities, in particular, 
African-Americans in discrimination situations, and also where 
you have dissented in a situation which your position was to 
support the claim of discrimination, and that it would be 
inaccurate to say that you have not taken that position in the 
4,000 plus cases that you have decided; is that correct?
    Judge Alito. That's certainly correct, Senator.
    Senator Kyl. There has been a lot of talk about precedent 
and stare decisis. It is certainly something that we lawyers 
are familiar with. We regard it as a key principle in deciding 
cases. There was a case that was mentioned by a couple of my 
Democratic colleagues that I am sure will be discussed further, 
but I thought I would give you an opportunity to talk about it 
because it certainly seemed to me to be a case in which you 
were very--that you were trying to apply a Supreme Court 
precedent, the precedent being the Lopez v. United States case, 
a case, by the way, which I note that is one of those decisions 
that Justice O'Connor was in the majority, a 5-4 decision, 
which her position could be characterized as the swing vote.
    Now you, in United States v. Rybar, agreed with Justice 
O'Connor and the way that the law should be applied relative to 
intrastate possession of a weapon. The Lopez case dealt with a 
congressional Act that said that weapons should not be 
possessed near schools. The Court struck that down, saying that 
that went beyond the Commerce Clause capability of commerce to 
legislate in matters of interstate commerce. In Rybar, what was 
the issue? You dissented.
    By the way, one of the reasons why this case is interesting 
to me is because the Ninth Circuit Court of Appeals, again, 
which is my circuit, has subsequently ruled--and this is not a 
conservative court in most people's estimation--recently agreed 
with your dissent in a case called U.S. v. Stewart, a 2003 
case, in which the Court overturned the defendant's conviction 
under the very same statute, holding that the law exceeded 
Congress's commerce powers.
    It seems to me that it would be hard to argue that your 
position is per se unreasonable, but could you describe it in 
your own words?
    Judge Alito. My position in Rybar was really a very modest 
position, and it did not go to the question of whether Congress 
can regulate the possession of machine guns. In fact, I 
explained in the opinion that it would be easy for Congress to 
do that in a couple of ways that differed from the way in which 
it was done in Rybar.
    The statute in Rybar was very similar to the statute that 
was at issue in Lopez. In fact, I think they are the only two 
Federal firearm statutes that have been cast in that mold. They 
simply prohibited the possession of firearms without either 
congressional findings concerning the effect of the activity on 
interstate commerce, or a jurisdictional element. And I knew 
from my experience as a Federal prosecutor that most of the 
Federal firearms statutes have a jurisdictional element right 
in the statute. What that means is that when the prosecutor 
presents the case in court, the statute that is used most 
frequently is the statute that makes it a crime for someone 
who's been convicted of a felony to possess a firearm.
    And in that case, when the prosecutor presents the case in 
court, the prosecutor has to show that the defendant has been 
convicted of a felony, and that the firearm in question had 
some connection with interstate commerce.
    Under Supreme Court precedent, a case called Scarborough, 
all that's necessary is to show that the firearm, at some point 
in its history, passed an interstate or foreign commerce, was 
manufactured in one State and then later turned up in another 
State, or manufactured in a foreign country and brought to the 
United States.
    From my experience, this was never a practical problem, and 
this was how all the Federal firearms statutes had been framed. 
But for whatever reasons, the statute in Lopez and the statute 
in Rybar were lacking that jurisdictional element. So an easy 
way in would Congress could regulate the possession of a 
machine gun would be to insert a jurisdictional element. And as 
I pointed out, as I just pointed out, in my experience as the 
U.S. Attorney in New Jersey, that was never a practical 
problem.
    The Supreme Court in Lopez said that there were three 
reasons why there was a problem with the statute there, and 
that case had been decided just the year before. And it was my 
obligation as a lower-court judge to follow it. The first was 
that it involved what the Court characterized as the 
noncommercial activity, and that was the possession of a 
firearm. And, of course, that was exactly the same activity 
that was at issue in Rybar. The second was the absence of a 
jurisdictional element, and there was no jurisdictional element 
in either statute. And the third was the absence of a 
congressional finding connecting the activity that was being 
regulated with interstate commerce. And I pointed out in my 
opinion that I would have viewed the Rybar case very 
differently if there had been a congressional finding, or if 
the Justice Department, in presenting its argument to us, had 
been able to point to anything that showed that there was a 
substantial effect on interstate commerce, which is what the 
Supreme Court says is required.
    Senator Kyl. So this is one of those situations in which, 
if the result was not what was intended, you were willing to 
point out in your decision what Congress could relatively 
easily have done to get the result that it appeared that 
Congress wanted to achieve?
    Judge Alito. That's exactly correct.
    Senator Kyl. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Kohl?
    Senator Kohl. Thank you very much, Mr. Chairman.
    Judge Alito, we heard a lot of discussion yesterday about 
the proper role of the judge in our system. Some said that a 
judge should favor neither the ``big guy or the little guy, but 
simply apply the law and not make the law.'' Based on what you 
said yesterday, I believe that you would agree generally with 
this characterization.
    However, to me it is not quite so simple. Just as no two 
umpires call the same game exactly, no two judges see a case in 
exactly the same way. Laws and the Constitution are often 
ambiguous and capable of many interpretations. Those 
interpretations are the result of judges with different 
judicial philosophies. Some judges have a more liberal judicial 
philosophy, while others are more conservative, and we are here 
trying to figure out what your judicial philosophy is. That is 
probably the principal point of this hearing.
    If the law were so simple, we would not have as many 5-4 
decisions. It seems to me that many of the most fundamental 
protections of civil rights and civil liberties that we take 
for granted today, things such as school integration, the 
principle of one person/one vote, the principle that the 
accused have a right to a lawyer in criminal cases, and the 
right of contraception, just to name a few, have come when 
judges have been willing to look beyond rigid legal doctrines 
that prevailed at the times of those rulings. The neutral 
approach, that of the judge just applying the law, is very 
often inadequate to ensure social progress, right historic 
wrongs, and protect civil liberties so essential to our 
democracy.
    So isn't it true, Judge Alito, that a neutral judge would 
never have reached these conclusions? In fact, for decades, 
courts did not reach these conclusions. So would you agree that 
these cases were rightly decided, No. 1, and required, No. 2, 
that judges apply a more expansive, imaginative view of the 
Constitution?
    Judge Alito. I think that the Constitution contains both 
some very specific provisions, and there the job of 
understanding what the provision means and applying it to new 
factual situations that come up is relatively easy. The 
Constitution sets age limits, for example, for people who want 
to hold various Federal offices, and there can't be much debate 
about what that means or how it applies. But it also contains 
some broad principles--no unreasonable searches and seizures, 
the guarantee that nobody will be deprived of life, liberty, or 
property without due process of law, equal protection of the 
laws. And in those instances, it is the job of the judiciary to 
try to understand the principle and apply it to the new 
situations that come before the judiciary.
    I think the judiciary has to do that in a neutral fashion. 
I think judges have to be wary about substituting their own 
preferences, their own policy judgments for those that are in 
the Constitution. They have to identify the principle that is 
to be applied under these broader provisions of the 
Constitution and apply it, but I don't see that as being the 
same thing as the judge's injecting his or her policy views or 
preferences or ideas about the direction in which the society 
should be moving into the decisionmaking process.
    Senator Kohl. These decisions to which I just referred push 
society into new directions, and they came about, didn't they, 
as a result of the Supreme Court's willingness to look at the 
Constitution in perhaps a different way, in a new way, and take 
a new approach and a new avenue, which is not entirely 
consistent with a neutral judge simply applying the law. The 
law is the law. It is not hard to find that out. As you 
somewhat suggested, if you are an umpire, a ball is a ball, a 
strike is a strike. I am suggesting that it is--and I think I 
would like to hope you would agree. It is somewhat, if not a 
lot more complex and sophisticated. If it weren't true, we 
could have a lot of views here today.
    I think you are unique in many ways, and part of that is 
your complexity, your sophistication, your ability to look at 
the Constitution and, if necessary, see new meanings that 
weren't seen there before. Isn't that true?
    Judge Alito. Well, Senator, I would never say that it is an 
easy process. There are some easy cases, but there are a lot of 
very difficult cases. And once you have identified the 
principle, the job of applying it to particular cases is often 
not easy at all. But what the judge has to do is make sure that 
the judge is being true to the principle that is expressed in 
the Constitution and not to the judge's principle, not to some 
idea that the judge has. And sometimes this results in ground-
breaking decisions. Sometimes that is because new issues come 
up. Sometimes it is because the principle that is embodied in a 
constitutional provision has long been neglected.
    That was certainly true with respect to the Equal 
Protection Clause. There was a long period between Plessy v. 
Ferguson and Brown v. Board of Education when the true meaning 
of the Equal Protection Clause was not recognized in the 
decisions of the Supreme Court, and when Brown was finally 
decided, that was not an instance of the Court changing the 
meaning of the Equal Protection Clause. It was an instance of 
the Court righting an incorrect interpretation that had 
prevailed for a long period of time.
    Senator Kohl. Judge Alito, one of the ways you get at a 
person's judicial philosophy is to look at the people whom they 
admire. In an interview that you gave in 1988, you were asked 
about your thoughts about Judge Robert Bork's nomination, and 
you said, and I quote, ``Judge Bork was one of the most 
outstanding nominees of this century.''
    Many Americans do not share Judge Bork's narrow views about 
the Constitution, views that would undermine many of the rights 
that we now take for granted, Judge Alito. Judge Bork thought 
that Americans had no constitutional right to use 
contraception, saying, and I quote, ``The right to procreate is 
not guaranteed explicitly or implicitly by the Constitution.''
    Judge Bork thought minorities had no constitutional right 
to have their votes counted equally, saying that in 
guaranteeing one man/one vote, the Court ``stepped beyond its 
boundaries as an original matter.''
    In 1981, Judge Bork called Roe v. Wade ``an 
unconstitutional decision, serious and wholly unjustifiable 
usurpation of State legislative authority.''
    In addition, he had an unreasonably broad view of Executive 
power, claiming that a law requiring the President to obtain an 
order from a court before conducting surveillance in the United 
States and against U.S. citizens for foreign intelligence 
purposes was ``a thoroughly bad idea, and almost certainly 
unconstitutional.''
    Can we assume from your admiration of Judge Bork that you 
agree with some of these statements or at least that you 
support some of these beliefs if you were sitting on the 
Supreme Court? Frankly, it is curious to me that someone like 
yourself would consider someone with his views to be ``one of 
the most outstanding nominees of this century.''
    Judge Alito. Senator, when I made that statement in 1988, I 
was an appointee in the Reagan administration, and Judge Bork 
had been a nominee of the administration, and I had been a 
supporter of the nomination. And I don't think the statement 
goes beyond that.
    There are issues with respect to which I probably agree 
with Judge Bork, and there are a number of issues on which I 
disagree with him. And most of the things that you just 
mentioned are points on which I would disagree with him. I 
expressed my view about Griswold earlier this morning. On the 
issue of reapportionment, as I sit here today in 2006--and I 
think that is what is most relevant--I think that the principle 
of one person/one vote is a fundamental part of our 
constitutional law. And I think it would be--I don't see any 
reason why it should be re-examined, and I don't know that 
anybody is asking for that to be done. Every legislative 
district in the country and every congressional district in the 
country has been reapportioned, has been redistricted numerous 
times in reliance on the principle of one person/one vote. And 
the old ways of organizing State legislatures have long been 
forgotten. So I think that is very well settled now in the 
constitutional law of our country.
    Under the Fourth Amendment, I have no question about the 
decision in United States v. United States District Court, 
which held--and I think that is what you were referring to, 
which held that a warrant is required for domestic security 
surveillance, and that was the decision that led to the 
enactment of the Foreign Intelligence Surveillance Act.
    Senator Kohl. Of course. I was only referring to or trying 
to refer to your quote with respect to him and the positions he 
held, which I suggested were at variance with the positions I 
thought you held, which you are affirming here in your answer. 
So that the quote you are pointing out was something you made 
as an employee of the Reagan administration?
    Judge Alito. I was, and that was in--I saw that quoted in 
the paper yesterday. I think that was in 19--
    Senator Kohl. Not necessarily expressing your own real 
views?
    Judge Alito. I was a supporter of the nominee of the 
administration, and he was the nominee of the administration. 
He was and is an accomplished scholar. He had contributed a 
great deal to constitutional debate with his writings. But I 
don't agree with him on a number of issues, and I mentioned--
you hit some of the issues on which I would definitely disagree 
with him.
    Senator Kohl. Very good.
    Judge Alito, in a document appended to your job 
applications, you also wrote that, ``I disagree strenuously 
with the usurpation by the judiciary of decisionmaking 
authority that should be exercised by branches of Government 
responsible to the electorate.'' The statement is especially 
troubling given that elsewhere in this application you wrote, 
``I developed a deep interest in constitutional law motivated 
in large part by disagreement with Warren Court decisions, 
particularly in the areas of criminal procedure, Establishment 
Clause, and reapportionment.''
    Judge Alito, what Warren Court cases were you specifically 
talking about--Miranda, one person/one vote, any of the privacy 
decisions? What in particular were you talking about?
    Judge Alito. Well, Senator, I am happy to address that. The 
statement was made in that 1985 form, and, of course, that was 
written 20 years ago. And in the form, what I was doing was 
sort of outlining the development of my thinking about 
constitutional law, and I went so far as to go back to my 
college days, which were before, of course, I had even attended 
law school, much less practiced law or served as a judge.
    I mentioned some of the leading areas that were covered by 
decisions of the Warren Court, and the decisions of the Warren 
Court really stimulated my interest in constitutional law. And 
I mentioned a book that had been published the time, Alexander 
Bickel's book ``The Supreme Court and the Idea of Progress,`` 
which was probably the first book about what you might call 
constitutional theory that I had read. And he was someone who I 
think most people would describe as a liberal, but he was a 
critic of the Warren Court for a number of reasons. And he was 
a great proponent of judicial self-restraint, and that was the 
main point that I took from my pre-law school study of the 
Warren Court.
    I spoke a bit about the reapportionment decisions. I don't 
believe that I--in fact, I am quite sure I never was opposed to 
the one person/one vote concept. I do recall quite clearly that 
my father's work at the time working for the New Jersey 
Legislature and working on reapportionment had brought to my 
attention the question of just how far that principle of one 
person/one vote had to be taken in drawing legislative 
districts.
    The New Jersey Legislature and many other legislatures at 
the time were trying to redraw their districts in accordance 
with Reynolds v. Sims, which set out the one person/one vote 
principle. But it wasn't clear how exactly equal the districts 
had to be in population. And in some of the late Warren Court 
decisions, the Court seemed to suggest--did say so for 
congressional districts that they had to be almost exactly 
equal in population. And this idea, if applied to the 
legislatures and to the New Jersey legislative plan, would have 
wiped the plan out because there were population deviations 
which, although not very large, were much larger than the Court 
had said they were going to tolerate in the case of 
congressional districts. And I do remember that quite 
specifically.
    Professor Bickel made the argument that the Court had taken 
the one person/one vote principle too far, and I know my father 
had said that although he thought it was a good idea, the idea 
of trying to get the districts to be exactly equal in 
population at the expense of looking at other factors, such as 
the shape of the district and respecting county lines or 
municipal lines, was a bad idea.
    Senator Kohl. Judge Alito, you stated in that same job 
application that one element of the conservative philosophy 
that you believe ``very strongly'' was the ``legitimacy of a 
government role in protecting traditional values.'' What 
traditional values were you referring to? And who decides what 
is a ``traditional value'' ?
    Judge Alito. Well, again, I'm trying to remember what I 
thought about that 20 years ago, and I'm trying to reconstruct 
it.
    I think a traditional value that I probably had in mind was 
the ability to live in peace and safety in your neighborhood, 
and that was a big issue during the time of the Warren Court, 
and it was still a big issue in 1985 when I wrote that 
statement because that was a time of very high crime rates. I 
think that is a traditional value.
    I think the ability of people to raise a family and raise 
their children in accordance with their own beliefs is a 
traditional value. I think the ability to raise a family, raise 
children in a way that they are not only subjected to--they are 
spared physical threats but also psychological threats that can 
come from elements in the atmosphere is a traditional value. I 
think that the ability to practice your own conscience is a 
traditional value.
    That is the best I can reconstruct it now, thinking back to 
1985.
    Senator Kohl. Very good. Judge Alito, in Casey you argued 
that the requirement that a woman notify her husband did not 
impose an undue burden upon a woman. You reasoned in part that 
the number of married women who would seek an abortion without 
notifying their husbands would be rather small. In other words, 
only some women would be affected. The majority in that case 
disagreed with you and stated, ''Whether the adversely affected 
group is but a small fraction of the universe, a pregnant woman 
desiring an abortion seems to us irrelevant to the issue.''
    This disagreement begs the question. Is a constitutional 
right any less of a right if only one person suffers a 
violation? Or should greater value be placed on that right if a 
larger number of people had that right violated?
    Judge Alito. Trying to apply the undue burden test at that 
time to the provisions of the Pennsylvania statute that were 
before the court in Casey was extremely difficult, and I can 
really remember wrestling with the problem and I took it very 
seriously and I mentioned that in my opinion and it presented 
some really difficult issues. Part of the problem was that the 
law just was not very clear at that time.
    The undue burden standard had been articulated by Justice 
O'Connor in several of her own opinions and there were just a 
few hints in those opinions about what she meant by it. But 
what she said was that an undue burden consisted of an absolute 
obstacle or an extreme burden. Those may not be exact quotes, 
but they're pretty close. And she did say that it was 
insufficient to show simply that a regulation of abortion would 
inhibit some women from going forward and having an abortion. 
Those were the--that was the information that was available in 
her opinions to try to understand what this test meant.
    And so then the question became, how do you apply that to 
the numerous provisions of the Pennsylvania statute that were 
before us, and it was a difficult task. The plaintiffs argued 
that all the provisions constituted an undue burden, and when 
the case went to the Supreme Court, Justice Stevens agreed with 
that. He said they all were an undue burden. Things like a 24-
hour waiting period, that was an undue burden because it would 
inhibit some women from having an abortion. An informed consent 
provision, Justice Stevens thought and plaintiffs argued that 
would be an undue burden.
    The majority on my panel and the joint opinion on the 
Supreme Court found that most of the provisions of the statute 
did not amount to an undue burden, the 24-hour waiting period, 
the informed consent provision, and all of them. We disagreed 
on only one, and that was the provision regarding spousal 
notification with a safety valve provision there that no sort 
of notification was needed if the woman thought that providing 
the notification would present a threat of physical injury to 
her. And I wrestled with that issue, but based on the 
information that I had from Justice O'Connor's opinions, it 
seemed to me that this was not what she had in mind. Now, that 
turned out not to be a correct prediction about how she herself 
would apply the undue burden standard to that statutory 
provision, but that was the best I could do under the 
circumstances.
    Senator Kohl. Judge Alito, in your 1985 job application 
memo again, you identified reapportionment as one of the three 
issued decided by the Warren Court with which you disagreed. 
You even stated that your disagreement was so strong that it 
was one of the reasons that you became a lawyer. The Supreme 
Court's Warren Court decisions on this topic, of course, stood 
for the fundamental principle of one person/one vote, meaning 
as a matter of constitutional law that each person's vote must 
count equally and each electoral district must have the same 
population.
    These decisions were more than 20 years old by the time of 
your 1985 job application and these decisions stand for a 
fundamental principle of democracy. By 1985, virtually no 
serious scholar or constitutional lawyer could be found to 
disagree with the principle that each person's vote should 
count equally. So what was your disagreement with the Warren 
Court's decisions on this issue, Judge Alito, in 1985? Isn't 
one person/one vote a basic principle of democracy? Wasn't it 
in 1985?
    Judge Alito. Senator, I don't believe that I disagreed with 
the principle of one person/one vote in 1985. I was talking 
about how I got interested in constitutional law back in 
college and I was certainly stimulated at that time by my 
consideration of the issue of one person/one vote. But the 
issue that troubled me toward the end of the Warren Court, and 
this was during the time when I was in college, was the 
question of how far this principle went when it came to drawing 
legislative districts. Did they have to be almost exactly equal 
in population in accordance with the last census, or were 
larger population variations permitted?
    In a case called Kirkpatrick v. Preisler and another one 
called Wells v. Rockefeller that were decided around 1969, 
which was right at the end of Chief Justice Warren's tenure on 
the Supreme Court, the Court held that in the case of 
congressional districts, they had to be almost exactly equal in 
population, and as I said, my father was deeply involved in 
this. When the issue came up again in the context of 
congressional districting in Carcher v. Daggett, which was 
around 1985, that was the case where he had been an expert 
witness and the Court struck down the New Jersey congressional 
districting plan even though the population variations were 
under 1 percent. Now, the Court also later said that when 
you're talking about legislative districts, considerably larger 
deviations are allowed and you can take into account municipal 
lines and county lines and things of that nature.
    But as of the time when I was in college, as in the time of 
the two cases that I mentioned, it seemed likely--a lot of 
people thought, and certainly I as a college student thought 
that the rule was going to be the same for congressional 
districts as it was for legislative districts and that seemed 
to say that the districts would have to be almost exactly equal 
in population based on the last census.
    Now, a problem with that is that while the census is very 
accurate, it's not perfect and it doesn't stay accurate 
throughout the 10-year period from census to census. People 
move around. The population grows. The population diminishes in 
certain areas. So it didn't seem to make a whole lot of sense, 
let's say in the middle of a decade, to insist on absolute 
population equality based on the last previous census when 
everybody knew that the census figures had changed, and in 
doing that, in insisting on practically equal population 
districts, districts of almost exactly equal population, you 
disregard municipal lines, you disregard county lines. People 
don't know which district they're going to be voting in. You 
introduce the possibility of other factors figuring into the 
districting plan.
    Senator Kohl. OK. Family and Medical Leave Act, Judge 
Alito. In my view, one of the most important pieces of social 
legislation enacted in the last two decades was the Family and 
Medical Leave Act in 1993. Among other things, it gives 
employees the right to take up to 12 weeks of unpaid leave to 
care for a newborn child or an ill parent or a spouse. The 
statute also gives an employee the right to sue his or her 
employer for damages if the employer violates the employee's 
rights under this law.
    I was disturbed to learn that in the Chittister case, Judge 
Alito, your ruling denied a State employee the ability to sue 
his employer for money damages. Your reasoning was directly 
repudiated by the 2003 Supreme Court decision of Nevada 
Department of Human Resources v. Hibbs. In that case, the 
Supreme Court, in a decision written by Chief Justice 
Rehnquist, held that the Family and Medical Leave Act was 
congruent and proportional to Congress's interest in preventing 
discrimination based on gender, and therefore States could be 
sued for money damages under the law.
    So we are concerned that your view shows a lack of 
understanding of the problems of ordinary working Americans and 
the right of women to be free of discrimination in the 
workplace. Isn't it true that under your view, potentially 
millions of working Americans would not get the protections 
that they rely on under the Family and Medical Leave Act? Judge 
Alito?
    Judge Alito. Well, Senator, I'm happy to address that 
because I think there's been some confusion about what the 
issue was in Chittister and how it relates to the Supreme 
Court's decision in Nevada v. Hibbs, and they're actually two 
entirely different provisions of the Family and Medical Leave 
Act.
    The provision that was at issue in my case was not the one 
in Hibbs and at last count, seven circuits had decided that 
issue, the issue that was before my court in Chittister, 
exactly the same way we did. I counted up the number of Court 
of Appeals judges who endorsed that position and it's over 20. 
I think it's 22. And they include some of the most 
distinguished Court of Appeals judges in the country and judges 
who have been appointed by Presidents of both parties.
    The issue in Hibbs had to do with a provision of the Family 
and Medical Leave Act that requires employers to provide 
employees with a certain amount of leave for the purpose of 
taking care of another family member. The provision--and that 
was the one that the Supreme Court addressed in the Hibbs case. 
The provision in the Chittister case is a provision that 
requires employers to give employees a certain amount of leave 
for personal illness. The standard that has to be applied here 
is the one the Supreme Court has set out, and it's a 
controversial standard, but as a lower court judge, it's the 
one I had to apply, and that was whether what was done was 
congruent and proportional to constitutional violations.
    What the Court said in Hibbs was that there was a record of 
constitutional violations, and remember, here we're talking 
about the provision that has to do with leave to take care of 
another person, and what they said was that there were many 
instances in which employers, State employers, had plans that 
provided more leave for that purpose for women than for men and 
the reason was because of the stereotype that if somebody in 
the family got sick, it would be the woman, not a man, who 
would have to take off from work to take care of that person.
    But the provision that was at issue in Chittister had to do 
with leave for one's own personal illness and there was no 
record that employers give--and a man was subjected to this, 
and there was no record that State employers, or for that 
matter any other employers, had plans that provided more sick 
leave for men than for women or that any stereotypes were 
involved in the situation. And so that was why I concluded, and 
the unanimous panel that I sat on concluded, and all of these 
seven other circuits concluded that that provision did not 
satisfy the standard that the Supreme Court had established.
    Senator Kohl. A last question. Judge Alito, I understand 
that you're reluctant to comment on cases that you would likely 
have coming before you in the future, but I'd like to ask you a 
question about a case that the Supreme Court certainly will 
never see again, the 2000 Presidential election contest between 
President Bush and Vice President Gore. Many commentators see 
the Bush v. Gore decision as an example of judicial activism, 
an example of the judiciary improperly injecting itself into a 
political dispute. Indeed, it appears to many of us who have 
looked at your record that Bush v. Gore seems contrary to so 
many of the principles that you stand for, that the President 
has said you stand for when making your nomination in talking 
about judicial restraint, not legislating from the bench and, 
of course, respecting the rights of the States.
    So, Judge Alito, I'd like to ask you, was the Supreme Court 
correct to take this case in the first place?
    Judge Alito. Well, Senator, I think you're probably right 
and I hope you're right that that sort of issue doesn't come 
before the Supreme Court again. Some of the--the Equal 
Protection ground that the majority relied on in Bush v. Gore 
does involve principles that could come up in future elections 
and in future cases.
    But as to that particular case, my answer has to be, I 
really don't know. I have not had the opportunity--I have not 
studied it in the way I would study a case that comes before me 
as a judge and I would have to go through the whole judicial 
process--
    Senator Kohl. That was a huge, huge case and I would like 
to hope, and I would bet, that you thought about it an awful 
lot because you are who you are. And I would like for you to 
give an opinion from the convictions of your heart, as a person 
who's very restrained with respect to judicial activism, this 
being a case of extreme judicial activism. Were they correct in 
taking this case, in your opinion?
    Judge Alito. Well, there's the issue of whether they should 
have taken it and the issue of how it should be decided, and 
Senator, my honest answer is I have not studied it in the way I 
would study the issue if it were to come before me as a judge 
and that would require putting out of my mind any personal 
thoughts that I had on the matter and thinking about the--
listening to all the arguments and reading the briefs and 
thinking about it in the way that I do when I decide legal 
issues that are before me as a judge. That's the only--that's 
the best answer I can give you to that question. It was 
obviously a very important and difficult and controversial 
case, and in a situation like that, the obligation of a judge 
all the more is to be restrained and not to--is to go through 
the judicial decisionmaking process, and only at the end of 
that reach a conclusion about the issue.
    Senator Kohl. Thank you, Judge. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kohl.
    Senator DeWine?
    Senator DeWine. Thank you, Mr. Chairman.
    Judge, you have almost turned the corner here, so that's 
the good news. The bad news is, this is just the first round.
    [Laughter.]
    Senator DeWine. Let me respond, if I could, Judge, to three 
things that I've heard so far during these hearings that have, 
frankly, disturbed me. First, I am bothered by what I consider 
to be distortions of your record, really in an effort to make 
you look like something that you are not.
    I just read a very interesting article by Stuart Taylor 
from the National Journal about this issue, and I would like, 
Mr. Chairman, to make this a part of the record, this article, 
if I could.
    Chairman Specter. Without objection.
    Senator DeWine. Mr. Taylor describes the opinions of a, 
quote, ''right-wing jurist.'' This judge has consistently ruled 
against minorities, striking down affirmative action programs, 
making it harder for victims of race and gender discrimination 
to vindicate their rights.
    Chairman Specter. Senator DeWine, your unanimous consent 
request is granted.
    Senator DeWine. Thank you, sir. This judge has struck down 
a Federal law to protect kids from guns, ruled that State and 
local governments cannot be sued under the Fair Labor Standards 
Act, leaving 4.7 million workers without a remedy in court. 
This judge has immunized the President from suit, even when he 
illegally wiretaps political opponents. This judge approved a 
police officer's fatal shooting in the back of an unarmed 15-
year-old African-American boy. Finally, this judge has called 
abortion, and I quote, ``morally repugnant'' and declared Roe 
v. Wade to be on, quote, ``on a collision course with itself.''
    Based on such a record, no right-thinking Democrat could 
ever support such a judge. But as Taylor tells us, this judge 
is none other than Sandra Day O'Connor, the same Sandra Day 
O'Connor who has been praised for the past few days as a model 
of moderation.
    Judge, the point Mr. Taylor made is clear. You can distort 
and misrepresent anyone's record, and that, I believe, 
unfortunately, is what some of your opponents are doing to you. 
It is unfair, it is inaccurate, and it is just flat-out wrong.
    Second, I would like to respond to the allegation that you 
have not written an opinion in favor of plaintiff alleging race 
discrimination on the job. You did a very good job a moment ago 
when Senator Kyl was talking to you in describing some of these 
cases. I think the facts of these cases are what is 
particularly interesting. In Reynolds v. USX Corporation, you 
ruled that an African-American woman whose coworkers and 
supervisors regularly made racial and sexual slurs against her 
and denied her training opportunities was, in fact, entitled to 
$124,000 in damages and in attorney fees.
    In Zubi v. AT&T Corporation, you dissented. You dissented, 
arguing against a stringent limitations period which prevented 
a civil rights plaintiff from filing a claim, and your position 
was vindicated. You were vindicated by the United States 
Supreme Court unanimously a few years later.
    In Smith v. Davis, you disagreed with the district court, 
which had dismissed an African-American employee's claim of 
discrimination. Instead, you found that there was evidence to 
support a finding that the employer's stated reasons for firing 
the plaintiff were not genuine.
    In Goosby v. Johnson & Johnson, you ruled that the 
plaintiff, an African-American woman, was entitled to a trial 
under claims of employment discrimination because you found 
that there was evidence that the employer was treating white 
male employees differently than it was treating the plaintiff. 
There are more cases, as you have testified to, but I think we 
make the point.
    We would all be better off and this process, Mr. Chairman, 
would be better off and would be more instructive if we could 
evaluate your nomination, Judge, based on your full and 
complete record.
    Finally, let me add my two cents on this Vanguard issue. I 
am going to take it from a little different perspective than 
has been done so far. To me, this is really a non-issue. In the 
so-called Vanguard lawsuit, two people were in a financial 
dispute. The plaintiff sued to force the defendant to turn over 
$170,000 held by him in some Vanguard accounts. The defendant 
went to court to prevent Vanguard from turning over the money.
    Now, while Vanguard was technically part of the suit and 
was technically a defendant, it wasn't really a defendant in 
any sense of the term that would be used by the public or 
understood by the public. It was not accused of any wrongdoing, 
it didn't stand to lose anything.
    Really, the only question was whether Vanguard would 
transfer some of the funds it held for one person over to 
another. It was simply being asked, who do I pay the money to, 
who do I give the money to. That is all Vanguard was being 
asked to do, so nothing in the classic sense of being a 
defendant. Nothing about this case could realistically have 
affected Vanguard as a company, let alone affected your mutual 
fund. It is a joke, it is ridiculous, it is absurd, and 
everybody on this panel knows that.
    Now, for the sake of the process, I hope we can put these 
issues behind us. This hearing is really our opportunity to 
fully and fairly evaluate your qualifications for the High 
Court and to get some idea about how you think as a judge, how 
you process things, what kind of a judge you will be on the 
United States Supreme Court.
    Now, let me turn to the substance. Judge Alito, I want to 
turn to an issue that is very important to me. In a number of 
recent cases, the Supreme Court of this country has restricted 
congressional power in a way that I think is not required by 
the Constitution.
    In my opening statement, I mentioned the Supreme Court's 
decision in Board of Trustees v. Garrett, a five-to-four 
decision. To me, that case is the best example of this recent 
trend, and it is not a good trend, in my opinion.
    Garrett involved a woman who claimed that she had been 
discriminated against because she was disabled. She was 
employed by the State of Alabama and she sued the State under 
the Americans with Disabilities Act. The Supreme Court threw 
out the suit, however, holding that Congress lacked the power 
to make the State subject to suit.
    Now, Judge, as I see it, the problem with Garrett is that 
the Court ignored findings made by Congress. While we were 
considering the ADA, we held 13 hearings and even set up a task 
force that held hearings in every State in the Union, attended 
by more than 30,000 individuals. Based on these hearings, we 
found hundreds of examples, hundreds of examples of people with 
disabilities being discriminated against by the States in 
employment decisions.
    Further, we found that, and I quote, ``Two-thirds of all 
disabled Americans between the ages of 16 and 64 were not 
working at all, even though a large majority of them were 
capable of doing so.'' And, finally, we found that this 
discrimination flowed from, and I quote, ``stereotypic 
assumptions about people with disabilities,'' as well as, and I 
quote, ``purposeful unequal treatment,'' end of quote. Sadly, 
however, in Garrett the Court said that this was just not 
enough. In fact, it held that we had not pointed to any 
evidence that the States discriminated in employment decisions 
against people with disabilities.
    Judge Alito, from a review of your decisions, it appears to 
me that you tended to defer in close cases to the decisions of 
those individuals closest to the problem at hand. I applaud you 
for taking that approach.
    Now, let me ask you, in your opinion, what role should a 
judge play when reviewing congressional fact-finding, and how 
can you assure us that you will show appropriate deference to 
the role of Congress as the representatives of the people in 
this democracy when we pass important legislation?
    Judge Alito. I think that the judiciary should have great 
respect for findings of fact that are made by Congress. And in 
the Rybar decision that I was discussing earlier, although it 
is controversial and it involved an application of the Lopez 
decision, I stated that that decision would have been very 
different from--that case would have been very different for me 
if Congress had made findings, and that is because of two 
things.
    I am fully aware of the fact that the members of the 
judiciary are not the only officers in the United States who 
take an oath to support and defend the Constitution of the 
United States. Members of Congress take an oath to support the 
Constitution and officers of the Executive branch take an oath 
to support the Constitution, and I presume that they go about 
their work in good faith.
    The second point--and this goes directly to the issue of 
findings--is that the judiciary is not equipped at all to make 
findings about what is going on in the real world, not this 
sort of legislative findings. And Congress, of course, is in 
the best position to do that. You have constituents. Members of 
Congress hear from their constituents. Congress can have 
hearings and examine complex social issues, receive statistical 
data, hear testimony from experts, analyze that and synthesize 
that and reduce that to findings. And when Congress makes 
findings on questions that have a bearing on the 
constitutionality of legislation, I think they are entitled to 
great respect.
    Senator DeWine. Well, Judge, I appreciate your response. We 
can't ask you, obviously, to decide any particular case, but 
what we are trying to do today is get a general idea of how you 
approach cases. And we have, as I said, looked at your previous 
cases. We have a good idea from that, but I appreciate this 
exchange.
    Let me followup with this. Garrett is the law of the land 
today. Nonetheless, let me ask you whether, after Garrett, 
Congress might still have a way to protect the disabled. Rather 
than focus on the problem caused by Garrett, let me focus on 
the solution. To me, even after Garrett, Congress still has the 
power to protect the disabled under the Spending Clause of the 
Constitution. I would like to explore maybe that with you, if I 
could. Let me give you an example of how this might work.
    You, of course, are very familiar with South Dakota v. 
Dole. In that case, Congress had wanted to establish a national 
drinking age of 21. As you know, we, of course, don't have the 
power to require that under our Constitution. Therefore, 
Congress used its power under the Spending Clause. We said to 
the States, if you don't establish a 21-year-old drinking age, 
you will lose 5 percent of your Federal highway dollars.
    This left the States with a choice: adopt a 21-year-old 
drinking age or lose 5 percent of their Federal money. When 
presented with such a choice, the States kept the money and 
changed their drinking age to 21. It seems to me that Congress 
might be able to use this same approach to require the States 
to waive their immunity from suit under statutes like the ADA.
    Judge, based on your experience, could you give me your 
understanding of what Congress can do and what it can't do 
under its Spending Clause power, maybe just go back and look at 
some recent cases and give me a little--
    Judge Alito. Yes, certainly, Senator. Well, I think you 
have pointed to the leading case in this area, and that is 
South Dakota v. Dole. South Dakota v. Dole recognizes that 
Congress has broad powers under the Spending Clause, and that 
when Congress provides money to the States, Congress can attach 
conditions to that money, to the receipt of the money, provided 
that certain standards are met.
    One thing that has to be done under the Supreme Court's 
cases is that there has to be a clear statement that the 
conditions are attached to the receipt of the money. And the 
Supreme Court views this like a contract, so that the parties 
need to have--the party receiving the notice has to have clear 
and fair notice about what it is agreeing to by taking the 
money. And then beyond that, the condition--if that is 
satisfied, then the condition has to be germane to the purposes 
of the funds.
    And in South Dakota v. Dole, the Court found that the 
drinking age and the 55-mile-an-hour speed limit were germane 
to the purpose of the expenditures, and these, I believe, were 
Federal highway funds. So those are the standards that would be 
applied to any future legislation under the current precedents 
if the future legislation invokes Congress's broad power under 
the Spending Clause.
    Senator DeWine. That is helpful. Thank you, Judge.
    During the confirmation hearing of Chief Justice Roberts, 
Chairman Specter showed us a chart stating that the Supreme 
Court had the opportunity to overrule Roe v. Wade in 38 cases. 
Because of this, the Chairman suggested that Roe was not only 
super precedent, but super duper precedent. The Chairman has 
made the same argument at the hearing today. In fact, he 
brought the chart out again today.
    Now, Judge, just to show you that not all members of this 
panel are like-minded, I want to tell you that I disagree. To 
me, Roe is not super precedent. I believe Roe is a precedent, 
but I don't believe it is super duper precedent or super 
precedent.
    First, although the Court has applied Roe in 38 cases, it 
has not directly taken up the issue of whether to overrule Roe 
in every one of those cases. In fact, out of those 38 cases, I 
have only found 4 in which the Court directly addressed the 
status of Roe as binding precedent.
    In Webster, the Court asked whether Roe should be 
reaffirmed, but ultimately avoided the issue. In three cases--
City of Akron, Thornburgh and Casey--the Court did reaffirm 
Roe. But the last of these, Casey, did so in a way that hardly 
left Roe on firm footing. In fact, Casey altered Roe by 
eliminating the strict scrutiny standard of review and 
replacing it with a lesser undue burden test. The result has 
been that many restrictions on abortion have been upheld.
    Second, just because Roe has been applied and reaffirmed 
does not make it a special form of precedent. Many other cases 
have been applied for decades before eventually being 
overruled. For example, Plessy v. Ferguson, the case 
establishing the principle of separate but equal, was upheld 
for nearly 60 years before it was overruled, and certainly 
discredited today.
    Lochner v. New York, a case that greatly limited the power 
of the States to protect children and workers, was consistently 
applied for more than 30 years before it was overruled. And 
Swift v. Tyson, a case establishing the doctrine of Federal 
common law, was a bedrock principle of American law repeatedly 
applied and upheld for nearly 100 years before it too was 
struck down. Thus, the mere fact that Roe has been upheld for 
more than 30 years does not mean that it is entitled to special 
deference.
    Third, from the start, Roe has been criticized by lawyers, 
scholars and judges, whether Democrats or Republicans and, to 
date, it does remain controversial.
    Fourth, much has happened over the last 30 years to 
undermine the soundness of Roe. Senator Brownback has mentioned 
how the facts of Roe have changed. We now know that the 
plaintiff in Roe based her case on false statements and that 
she wants the case overturned. We also know much about the life 
of babies in utero that we did not know 30 years ago.
    We even know something about the internal deliberations of 
the Justices who decided Roe. In an internal Supreme Court 
memo, Justice Harry Blackmun, the author of Roe, acknowledged 
that the trimester framework established in his opinion was, 
and I quote, ''arbitrary.'' And Justice Lewis Powell said that 
he could not find a right to an abortion within the 
Constitution and decided instead to rely on his gut.
    Finally, whatever the term ``super precedent'' means, I do 
not think that it describes Roe. In an article by William 
Landis and Richard Posner, super precedent was defined this 
way. It is a, and I quote, ``precedent that is so effective in 
defining the requirements of the law that it prevents legal 
decisions arising in the first place, or if they do arise, 
induces them to be settled without litigation,'' end of quote. 
In other words, super precedent is precedent that is so firmly 
entrenched in our legal system that people simply don't 
question it.
    Marbury v. Madison, the case establishing the power of 
judicial review, is super precedent. It is so well settled that 
litigants do not challenge it in court. In fact, it is one of 
the fundamental assumptions upon which our constitutional 
system is built. Roe is hardly Marbury. Is Roe Supreme Court 
precedent? Certainly, but in my view it is not super duper 
precedent or even super precedent. It is precedent, nothing 
more.
    Judge, I want to turn now to another topic, to an issue 
that several Federal judges in Ohio have brought up to me 
during our conversations. As you know, the Supreme Court 
currently decides about 75 cases a term. This number is down 
dramatically from where it was just a generation ago. In 1976, 
for example, the Court decided almost 400 cases on the merits, 
more than five times what it does today.
    This incredible shrinking Supreme Court docket has been the 
focus of much attention over the past few years, a lot of 
discussion. One result of the Court deciding fewer and fewer 
cases is that more and more circuit splits are left unresolved, 
which is what I want to talk to you about.
    As we all know, a circuit split occurs when two or more 
Federal Courts of Appeals disagree on an issue of Federal law. 
As of late, circuit splits have become so pervasive that the 
Seton Hall Law School came out last year with a new Law Review 
dedicated exclusively to that issue. There is also a website 
written by a law professor at the University of Richmond, 
solely committed to identifying new circuit splits. Hardly a 
week passes when at least one does not emerge.
    To me, these pervasive and unaddressed circuit splits 
create three problems: one, organizations that transact 
business across State lines, get caught in the cross-hairs of 
the his confusion, being subject to one interpretation of 
Federal law in California and a different one in the State of 
Ohio; second, Federal judges are placed in a difficult 
situation trying to figure out what the law requires. In fact, 
a number of Federal judges in Ohio have talked to me, as I 
said, about this; and finally, circuit splits undermine the 
goal of having uniformity in our Federal law.
    Let me just ask what is your opinion about this issue? In 
your experience has the Supreme Court's shrinking docket caused 
problems for businesses, lower court judges, individuals? Is 
there a problem with the number of unresolved circuit splits? 
And if the Court takes more cases, do you think that will solve 
the problem?
    Judge Alito. Well, that's a difficult issue for me to 
address from my current position as a judge of a court of 
appeals because the Supreme Court is my boss, and I am 
reluctant to suggest that I think they should be doubling their 
workload.
    [Laughter.]
    Senator DeWine. Oh, go ahead.
    [Laughter.]
    Judge Alito. That's not the sort of--or even increasing it 
at all. That's not the sort of thing that subordinates 
generally do regarding superiors. But circuit splits are 
certainly undesirable, and I think everybody recognizes that, 
and that's one of the grounds for granting certiorari. I know 
that when Justice White was on the Court he regularly would 
dissent from denial of certiorari in cases where there was a 
circuit split because he felt strongly that circuit splits 
should be resolved by the Supreme Court.
    I have friends, former colleagues from prior times in my 
career, who are appellate attorneys who specialize in cases 
before the Supreme Court and in appellate litigation generally, 
and occasionally I hear them complain about unresolved circuit 
splits that are difficult for their clients. So I'm aware of 
their complaints.
    I haven't personally kept track of the number of circuit 
splits that exist, but certainly they are undesirable thing, 
and it is a ground for granting certiorari, and I think one of 
the jobs that the Supreme Court has is to iron out circuit 
splits. There can be disagreements about whether there really 
is a circuit split, obviously, in a particular case, and there 
can be differences of opinion about the timing for resolving 
circuit splits. Sometimes the Supreme Court thinks it's 
advisable to wait and see how an issue plays out in a number of 
circuits before the Supreme Court decides to take on the issue, 
and that may improve their ability to resolve the issue when 
the case generally--when the case eventually comes before them.
    Senator DeWine. Judge, let me suggest that I think it is a 
problem and I think the Supreme Court needs to deal with it. 
Chief Justice Roberts indicated that he thought the Court could 
take on more, and I would suggest that they could. I appreciate 
your comments.
    Judge Alito, let me ask you about Congress's power to 
protect our children from the proliferation of pornography on 
the Internet. This is an important issue. I raised it at the 
last hearing. It is one that I think is very troubling. 
Congress has tried several times to protect our children from 
being exposed to pornography on the Internet. In 1996, we 
passed the Communications Decency Act, but the Supreme Court 
struck it down, citing the First Amendment. A few years later 
we passed the Child Online Protection Act. Again, the Court 
struck it down.
    What bothers me about these cases is they fail to account 
for something that to me seems relatively simple. At the core 
of the First Amendment is the protection of political speech, 
but it seems to me that pornography is altogether different. 
Unlike political speech, pornography has very little value if 
it has any value at all. It does not communicate a message 
other than one that degrades women. It does not contribute to 
the public debate, and actually causes harm to the victims who 
take part in making it, and those who use it.
    There are, of course, a number of cases that seem to 
recognize that pornography is of lesser value speech. In Young 
v. American Mini Theaters the Court upheld zoning regulations 
on adult theaters. In doing so, Justice Stevens had this to 
say, and I quote, ``Even though we recognize that the First 
Amendment will not tolerate the total suppression of erotic 
materials that have some arguably artistic value, it is 
manifest that society's interest in protecting this type of 
expression is of a wholly different and lesser magnitude than 
the interest and untrammeled political debate.''
    Let me ask you, Judge, what is your thinking on this 
subject? Is pornography lesser value speech, as Justice Stevens 
has seemed to suggest, and are there, or should there be, 
different levels of speech under the First Amendment?
    Judge Alito. I think that the problem of protecting 
children from pornography on the Internet illustrates the fact 
that although the task of the judiciary is to apply principles 
that are in the Constitution and not make up its own 
principles, to apply those to different factual situations when 
the world changes, and in particular, in the First Amendment 
context, when means of communication changes. The job of 
applying the principles that have been worked out--and I think 
in this area worked out with a great deal of effort over a 
period of time--in the pre-Internet world, applying those to 
the world of the Internet is a really difficult problem, and I 
understand it. Congress has been struggling with it, and I know 
the judiciary has been struggling with it.
    The law, of course, as you know, constitutional law draws a 
distinction between obscenity, which has no First Amendment 
protection but is subject to a very strict definition, and 
pornography, which is not obscenity but is sexually related 
materials, with respect to minors, the Supreme Court has said 
that it's permissible for a State to regulate the sale of 
pornography to minors, has greater authority there. I think 
that's the Ginsburg case. It has greater authority there than 
it does with respect to the distribution of pornography to 
adults.
    Now, in the pre-Internet world, the job of preventing 
minors from purchasing pornography was a lot simpler. If they 
wanted to get it, I guess they would have to go to a store or 
some place and buy it. But on the Internet, of course, it's 
readily available from any computer terminal, and a lot of 
minors today are a lot more sophisticated in the use of 
computers than their parents, so the ability of parents to 
monitor what they're doing and supervise what they're doing is 
greatly impaired by this difference in computer aptitude. I 
can't say much more about the question than that. It is a 
difficult question. I think that there needs to be additional 
effort in this area, probably by all branches of Government so 
that the law fully takes into account the differences regarding 
communication over the Internet and access to materials over 
the Internet by minors.
    Senator DeWine. Judge, I have one last question. If 
confirmed to the Supreme Court, only part of your job will be 
hearing arguments and issuing opinions. An equally important 
part of the job will involve deciding which cases to hear in 
the first place. Each year the Supreme Court receives 
approximately 8,000 petitions for cert., cert. petitions, as 
they are called. These are petitions by a party to a lawsuit 
asking the Court to hear its case. Out of these 8,000 annual 
requests, the Court decides to hear only about 75 to 80. For 
many years individual Justices would review each cert. petition 
and cast a vote on whether to hear the case. Today, however, 
eight of the Justices are part of what is called the cert. 
pool. Here is how it works. All petitions are put into a pool. 
A single law clerk then picks up a petition, writes a memo 
recommending for or against hearing the case. That memo is then 
circulated to the eight Justices in the cert. pool who use it 
to cast their vote on whether to hear the case. Justice Stevens 
is the only one who does not participate in this pool. Instead 
he has his staff prepare a memo on each case with a 
recommendation tailored to his own thinking on an issue. It 
would seem to me that the cert. pool greatly limits the 
exchange of ideas among members of the Court.
    I wonder if you could tell me how you would intend to 
proceed, if you are going to use the pool or if you are going 
to do what Justice Stevens does, or if you have thought about 
it.
    Judge Alito. I have--I'm aware of the issue, but I have not 
thought past what might happen with these confirmation 
proceedings. So it's not the kind of issue that I have really 
thought through in my mind. If I'm fortunate enough to be 
confirmed, I think I would assess the situation at that time 
and talk to the Supreme Court Justices and see what their views 
are, the reasons why they're proceeding in one way or another.
    I know from my perspective as a lower court judge, that 
there is a constant conflict between the obligation that we 
have to deal with a very heavy caseload and the need for the 
judge, as opposed to a law clerk or a staff employee of the 
Court to deal with the cases. We cannot delegate our judicial 
responsibility, but we do need to call on--we need to find 
ways, and we do find ways, of using--of obtaining assistance 
from clerks and staff, employees, so that we can deal with the 
large caseload that we have.
    Senator DeWine. Thank you, Judge.
    Chairman Specter. Thank you, Senator DeWine.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Good afternoon, Judge. Because Sandra Day O'Connor was the 
fifth vote on both Lopez and Morrison, I think I would like to 
start with the Commerce Clause, and your views of federalism. 
Do you agree with the direction the Supreme Court took in 
Lopez?
    Judge Alito. Well, Senator that really relates to the next 
case in the Lopez-Morrison line of cases that might come before 
the Supreme Court, and so I don't know how I can address that 
question without knowing what that case is, and of course, my 
resolution of it would--
    Senator Feinstein. I was just asking you about Lopez, but--
    Judge Alito. Well, Lopez is--
    Senator Feinstein [continuing]. If you do not want to 
answer, that is OK.
    Judge Alito. Lopez is a precedent of the Court, and it's 
been followed in Morrison, and then it has to be considered 
within connection with the Supreme Court's decision in Raich, 
and I think that all three of those have to be taken into 
account together. I don't think there's any question at this 
point in our history that Congress's power under the Commerce 
Clause is quite broad, and I think that reflects a number of 
things, including the way in which our economy and our society 
has developed, and all of the foreign and intrastate activity 
that takes place, we do still have a Federal system of 
Government, and I think most people believe that that is the 
system that's set up by our Constitution.
    Senator Feinstein. Having said that, I pulled the Rybar 
case and read it over the noon break. Let me just see if we 
agree on the facts, and stop me if you think I am misquoting or 
misstating anything. The Rybar case essentially took place the 
year after Lopez. It involved Mr. Rybar, who was a federally 
licensed gun dealer who went to a gun show in Pennsylvania and 
bought a Chinese type 54, 7.62-millimeter submachine gun one 
day, sold it to Mr. Baublitz, went back the next day and sold 
him a military M-3, 45 caliber submachine gun. The grand jury 
indicted him on two counts of unlawful possession of a machine 
gun in violation of the law, and two counts of unlawful 
transfer of an unregistered firearm. He changed his plea, pled 
guilty to two counts. I think he pled conditionally guilty to 
two counts.
    When the case came before you, and I read with great 
interest your dissenting opinion, you said, and I quote, ``If 
Lopez, which happened the year before, does not govern this 
case, then it may well be a precedent that's strictly limited 
to its own peculiar circumstances, but our responsibility is to 
apply Supreme Court precedent. That responsibility, it seems to 
me, requires us to invalidate the statutory provision at issue 
here in its present form.''
    And then you went on to say that the present form ``might 
be sustainable in its current form if Congress made findings 
that the purely intrastate possession of machine guns has a 
substantial effect on interstate commerce, or if Congress or 
the Executive assembled empirical evidence documenting such a 
link. If, as the Government and the majority boldly insist, the 
purely intrastate possession of machine guns has such an 
effect, these steps are not too much to demand to protect our 
system of constitutional federalism.''
    So if I understand this, you essentially said that you 
wanted to follow precedent, newly established law in this area, 
and you left a little hedge that if the Congress did make 
findings in that law, then that might be a different situation. 
If Congress did make findings, would you have agreed that that 
statute would have been constitutional?
    Judge Alito. Well, what I said in the opinion and what I 
will reiterate this afternoon is that it would have been a very 
different case for me. I don't think I can express an opinion 
on how I would have decided a hypothetical case.
    Senator Feinstein. It is not hypothetical. I am just asking 
you if there were findings, as you said, you might have 
sustained the law--
    Judge Alito. And I read it like that. I think it would have 
been--
    Senator Feinstein. I am just asking you, would you have 
sustained the law for findings--
    Judge Alito. I don't think that I can give you a definitive 
answer to the question because that involves a case that's 
different from the case that came before me. But I repeat what 
I said there, it would have been a very different matter if 
Congress had made findings. I have the greatest respect for 
findings. This is an area where Congress has the expertise and 
where Congress has the opportunity to assemble facts and to 
assess the facts. We on the appellate judiciary don't have that 
opportunity. So if Congress had made findings--and I didn't 
insist on findings. If the Executive branch, which was 
defending the statute, had pointed to testimony at hearings--
and that's been done in other Commerce Clause cases--or 
statements by responsible Government officials with expertise 
in the area of firearms control, or any other evidence that 
substantiated this, it would have been a very different case 
for me, and of course, if there had been a jurisdictional 
element, then I think it's perfectly clear under the precedents 
that it would have been constitutional.
    Senator Feinstein. I accept that with one exception. I 
think most people know that guns, particularly machine guns, do 
affect interstate commerce, and there is generally no question 
about that. With one look at the gun trace, even before Mr. 
Rybar had the gun, the likelihood was that it came across State 
lines, particularly the Chinese model. So I think that is a 
difficult extrapolation for me to understand, but that is not 
necessarily dispositive.
    Let me go on. At the conclusion of your dissent, you wrote 
that, ``Even today, the normative case for federalism remains 
strong.'' Now, federalism is often used to describe the 
strengthening of State powers at the expense of the Federal 
Government. What exactly did you mean by that statement?
    Judge Alito. I meant that there are activities that--and I 
think there is general agreement on this, and it goes beyond 
what the Constitution requires into areas of policy that I 
think Congress respects. I think there is general agreement 
that there are some activities that have traditionally been 
handled by the States and by local governments. Those are areas 
in which they have taken the lead because the view has been 
that they are in the best position to deal with that. And that 
was the issue that was directly addressed by Justice Kennedy's 
concurrence in Lopez. He relied in large part on the fact 
that--he put heavy reliance on the fact that what was involved 
in Lopez was a law relating to schools. And although the 
Federal Government certainly has a role in education, 
traditionally that has been regarded as something that is 
primarily to be handled at the State and local level.
    Senator Feinstein. OK. Now, you cited a law review article 
by a professor named Stephen Calabrese. In that article, he 
argues that Lopez was a revolution that shattered forever the 
notion that after 50 years of Commerce Clause precedent, we 
could never go back to the days of limited national power. Do 
you agree with that?
    Judge Alito. I agree that Lopez was a startling development 
for a lot of people. When I was in law school, I think the 
traditional wisdom was that the commerce power reached 
everything, that there was no limit to the power, that nothing 
could ever exceed the power. And Lopez and the Lopez line of 
cases have not made huge inroads on that principle, but it was 
the first time in a long time that a statute had been held to 
exceed Congress's commerce power. So to that extent, yes, it 
was a revolution, but how big of a one--
    Senator Feinstein. See, I would say not yet has it made 
that kind of a dent, and that is why your nomination is so 
important, because you could be a decisive vote in this area.
    Do you believe that the Supreme Court's Commerce Clause 
decisions in the 50 years preceding Lopez are settled law?
    Judge Alito. I think that--I'd have to talk about 
individual cases, but I do think most of those are--the ones 
that come to my mind I think are well-settled precedents.
    Senator Feinstein. OK. Now, unlike the machine gun law in 
Rybar, the Family and Medical Leave Act in Chittister did 
include congressional findings of fact, as the Supreme Court 
confirmed, and yet you authored the majority opinion to 
invalidate the law.
    Judge Alito. Well, in Chittister--
    Senator Feinstein. Do you see a contradiction in that?
    Judge Alito. I don't, Senator. I don't believe that there 
were congressional findings in Chittister that went to the 
issue in Chittister.
    Senator Feinstein. OK. That is good. Now, let me ask you 
some questions. Is it enough for Congress to provide findings 
of fact in a statute, or do the findings of fact need to be 
deemed sufficient by a court?
    Judge Alito. Well, what the Supreme Court has said is that 
findings of fact are very helpful when they are provided. And 
the Court will certainly treat them with respect. But they are 
neither--they are not necessarily definitive, and they also are 
not necessary. Congress doesn't have to make findings. It is 
helpful when it does it, and under the Supreme Court's cases, 
the findings are not necessarily definitive. That is what the 
Supreme Court has said about this.
    Senator Feinstein. Yes, but you struck down Rybar. 
Essentially, you said it would have a much better chance with 
you if it had findings of fact. And this was a case where prior 
laws had major findings of fact with respect to machine guns. I 
mean, this wasn't a new thing.
    Judge Alito. Senator, I looked very carefully at all of the 
materials that were cited by the other judges in Rybar and that 
were provided by the Government. And the things that were cited 
from the legislative history of the prior statutes did not, in 
my view, go to the issue in Rybar. All of those prior statutes 
were statutes that had jurisdictional elements in them. All 
that I was looking for was some evidence that the possession of 
a machine gun--not the transfer of a machine gun or the sale of 
a machine gun, but the mere possession had a substantial effect 
on interstate commerce. That is what I understood the Supreme 
Court precedent to require. And it is not a very heavy burden 
to show that something has a substantial effect on interstate 
commerce, but that is what I understood the Supreme Court 
precedent to require and that is what I was looking for.
    Senator Feinstein. OK. Let's move to the issue of a woman's 
right to choose and Roe. This morning, Senator Specter talked 
about how Casey reaffirmed the original soundness of Roe and 
then put emphasis on precedent. And he then asked, ``How would 
you weigh that consideration were this issue to come before 
you, if confirmed? '' And in response, you said, and I would 
like to quote, ``Well, I agree that in every case in which 
there is prior precedent, the first issue is the issue of stare 
decisis, and the presumption is that the Court will follow its 
prior precedents. There needs to be a special justification for 
overruling a prior precedent.''
    Can you give us a few examples of a special justification, 
not including Brown v. Board of Education, which you think 
would qualify?
    Judge Alito. There are a number of factors that figure in 
the application of stare decisis in particular cases. There are 
factors that weigh in favor of stare decisis, and there are 
factors that weigh against stare decisis. Factors that weigh in 
favor of stare decisis are things like what the initial vote 
was on the case, the length of time that the case has been on 
the book, whether it has been reaffirmed, whether it has been 
reaffirmed on stare decisis grounds, whether there has been 
reliance, the nature and the extent of the reliance, whether 
the precedent has proven to be workable. Those are all factors 
that have to be considered on an individual basis.
    Senator Feinstein. But I am asking you what the special 
justification would be, that you mentioned this morning, to 
overcome precedence and reliance?
    Judge Alito. Well, I think what needs to be done is a 
consideration of all of the factors that are relevant. This is 
not a mathematical formula. It would be a lot easier for 
everybody if it were. But it is not. The Supreme Court has said 
that this is a question that calls for the exercise of 
judgment. They have said there has to be a special 
justification for overruling a precedent. There is a 
presumption that precedents will be followed. But it is not--
the rule of stare decisis is not an inexorable command, and I 
don't think anybody would want a rule in the area of 
constitutional law that pointed in that--that said that a 
constitutional decision, once handed down, can never be 
overruled.
    So it's a matter of weighing all of the--taking into 
account all of the factors and seeing whether there is a strong 
case based on all the relevant--
    Senator Feinstein. My question was a different one, 
respectfully.
    Judge Alito. I am sorry, Senator.
    Senator Feinstein. It was, can you give me a few examples 
of what you think would qualify as a special justification for 
overruling prior precedent? And the reason I ask you this is in 
our private conversation, you said to me that you did not think 
there had been any case you could think of that had been more 
tested than Roe.
    Judge Alito. Well, Roe has--sorry.
    Senator Feinstein. What special circumstance would there be 
which would overcome this kind--whether you call it super 
precedent or super duper or anything, but this kind of 
protracted testing over a 33-year period of time?
    Judge Alito. Senator, I'm sorry if I didn't understand your 
question previously. One situation in which there is a special 
justification for overruling a precedent is if the rule has 
proven to be unworkable. An example where the Supreme Court 
thought that a rule had proven to be unworkable is provided by 
National League of Cities and San Antonio Transit Authority v. 
Garcia. National League of Cities asked whether something was 
traditionally a sovereign function. And that resulted in a 
whole series of cases in the lower courts, a large number of 
cases in the lower courts, and a number of cases in the Supreme 
Court in which the courts had to decide whether something was 
on one side of this line or not, and it proved in the view of 
the Supreme Court to be a very difficult standard to work with. 
And, finally, in Garcia, they said this is unworkable, and we 
are going to overrule National League of Cities, and we are 
going to leave it to Congress to deal with the federalism issue 
that is presented here. This is an example of the Supreme Court 
saying there is a federalism concern here, but it is one that 
Congress rather than the Court would have to deal with.
    Sometimes changes in the situation in the real world can 
call for the overruling of a precedent. An example of that is 
provided by Katz v. United States, which I was talking about 
this morning in relation to wiretapping. The old rule under 
Olmstead was that in order for there to be a search, you had to 
look to property law. You had to see whether there was an 
invasion of a property interest. And then with the development 
of electronic communications and electronic surveillance, 
wiretapping or other forms of electronic surveillance, which is 
what was involved in Katz, the Supreme Court said this isn't a 
sensible way to apply the Fourth Amendment principle under the 
conditions of the modern world, and they said famously that the 
Fourth Amendment protects people, not places. So they shifted--
they found the doctrinal underpinnings of the old Olmstead rule 
to be undermined by developments in the society, and they 
shifted the focus from property law to whether somebody had an 
expectation of privacy.
    So those are examples.
    Senator Feinstein. Well, and you did say that you believe 
the Constitution provides a right of privacy.
    Judge Alito. I did say that. The 14th Amendment protects 
liberty. The Fifth Amendment protects liberty. And I think it 
is well accepted that this has a substantive component, and 
that that component includes aspects of privacy that have 
constitutional protection.
    Senator Feinstein. Let me ask you about your dissent in 
Casey. You reasoned that most women seeking abortions are 
either unmarried or would tell their husbands and, therefore, 
few would be harmed if spousal notification was required. 
Justice O'Connor, on the other hand, ruled, and I quote, ``The 
proper focus of constitutional inquiry is the group for whom 
the law is a restriction, not the group for whom the law is 
irrelevant.''
    Why did you propose a different approach than Justice 
O'Connor?
    Judge Alito. Well, I mentioned the fact in my opinion that 
this provision applied only to married women, but I don't think 
that was really the focus of what I was getting at. I think--
and I agree with her that you look at the group that's 
affected, not the group that's unaffected, and the standard 
that she had--so that would be women who fell within this 
provision of the Pennsylvania law. And the standard that she 
had articulated in the earlier cases was, as I described it a 
couple of minutes ago, that an undue burden in her view had to 
be an absolute obstacle or an extreme obstacle, and it could 
not be simply something that inhibited some women. The ``some 
women'' phrase was her phrase, not my phrase.
    Senator Feinstein. Now, I am going to ask you about one 
other quote that some of my colleagues may disagree with what 
Justice O'Connor said, but she said it, and that is, ``The 
State may not give to a man the kind of dominion and control 
over his wife that parents exercise over their children.'' Do 
you agree with that?
    Judge Alito. I never equated the situation of an adult 
woman who fell within the notification provision of the 
Pennsylvania statute with the situation of a minor who was 
required to provide notice. There is an analogy, and the 
earlier case that Justice O'Connor had decided, the Hodgson 
case, was a minor notification statute. But I think I made it 
quite clear in my opinion that this was nothing more than an 
analogy and that there was no close--these situations were very 
distinct, and I was aware of that, and I think I pointed that 
out.
    Senator Feinstein. Let me move on, if I might. One of the 
core principles of Roe is that a woman's health must be 
protected. In Casey, Justice O'Connor specifically wrote that 
after viability, the State may, if it chooses, regulate and 
even proscribe abortion, except where it is necessary in 
appropriate medical judgment for the preservation of the life 
of the mother. This requirement to protect a woman's health was 
also reaffirmed in Stenberg v. Carhart, where it was said the 
Court rejects Nebraska's contention that there is no need for 
health exception.
    Do you agree, if the statute restricts access to abortion, 
that it must protect the health of the mother in order for it 
to be constitutional?
    Judge Alito. Well, I think that the case law is very clear 
about protecting the life and the health of the mother is the 
compelling interest throughout pregnancy. I think that's very 
clear in the case law.
    Senator Feinstein. Thank you. I appreciate that.
    In 1985, at the time you wrote the strategy memo on 
Thornburgh, the Court had already held in Roe, Akron, and 
eventually 30 other cases, that a woman had a constitutional 
right to choose whether to continue a pregnancy. In addition, 
in your memo, you specifically wrote that in the Akron case, 
the Supreme Court reaffirmed Roe. However, despite this, your 
memo outlined a strategy to eventually overturn Roe.
    My question is a little different from what you discussed 
somewhat yesterday. What was your view of precedent at the time 
you wrote that memo?
    Judge Alito. Well, I think there are two things that I 
should say in response to that. The first is that I did not 
advocate in the memo that an argument be made that Roe be 
overruled, and therefore, the whole issue, had the Government 
proceeded with the argument that I recommended, the issue of 
stare decisis wouldn't have been presented and so there wasn't 
any occasion for me to talk about stare decisis in the memo and 
I did not talk about it. I think there's a mention of it in a 
footnote. So I didn't address it and there wasn't an occasion 
to address it.
    The second thing I would say is that stare decisis is a 
concern for the judiciary much more than it is for an advocate. 
An advocate is trying to achieve a result, and so an advocate 
is--for an advocate, stare decisis can be either a great 
benefit if it is in your favor or an obstacle to get over. But 
it isn't the kind of issue that needs to be grappled with in 
the way in which a court has to grapple with stare decisis.
    Senator Feinstein. OK. In Casey, you wrote about the harms 
caused by spousal notification to the practical effect that the 
law will not amount to an undue burden unless the effect is 
greater than the burden imposed on minors. Just to go back to 
that, is this what you meant?
    Judge Alito. Well, Senator, I don't--I do not equate the 
situation of a married woman with the situation of a minor--
    Senator Feinstein. I know you keep saying that, but I keep 
going back to the words and they seem to say something else.
    Judge Alito. Well, I think if you look at the words, I 
actually said that I don't equate these two situations. I was 
mindful of the fact that they are very different situations. 
But often, the law proceeds on the basis--legal reasoning is 
based on analogy, and so if you take a situation that's quite 
different and yet has some relationship to a situation that 
comes up later, you can draw some analogies while still 
recognizing that the two situations are very different.
    If you're talking about the potential for abuse, that 
certainly is something that can come up in either of these two 
contexts and it's a tragedy in either context. If a single 
minor is abused as a result of notification, that's a tragedy. 
If a single adult woman is abused as a result of notification, 
it's a tragedy.
    But what I think I'm getting at there is that this is what 
we had. This is what I had. This was the information that I had 
to work with to try to understand what this provision meant. 
And so you work with what you've got and that's what I had and 
I was trying to see to what degree the prior situation was 
relevant and to what degree it wasn't relevant to the issue 
that was before me.
    Senator Feinstein. I'd like to quickly just switch subjects 
for a moment just to clarify something you said this morning, 
and this has to do with electronic surveillance of Americans. 
As you know, in 1978, the Congress, after a lot of 
introspection, passed a bill called the Foreign Intelligence 
Surveillance Act, which we call FISA, which essentially set up 
the parameters for all electronic surveillance within the 
United States. It's very specific, if you read it. There is a 
great concern right now because of what's been happening with 
respect to electronic surveillance, quite possibly involving 
Americans as well as foreigners.
    You said something interesting this morning. You said, 
generally, there has to be a warrant issued by a neutral and 
detached magistrate before a search can be carried out. Now, 
with respect to the FISA law, Senator Birch Bayh, the Chairman 
of the Intelligence Committee at the time, spells out in the 
Committee Report that this covers all surveillance in the 
United States. And then President Carter, when he signed the 
law, said this covers all surveillance within the United 
States. So there is a burgeoning question as to whether the 
President now has the authority to wiretap Americans without 
going to the FISA court.
    When you said, generally, there has to be a warrant, what 
that said to me was you were providing for an exception. Is 
that correct? Are you providing for an exception?
    Judge Alito. I think that what I was addressing when I said 
that was what the Fourth Amendment means, the general principle 
that is set out in the Fourth Amendment, and the case law under 
the Fourth Amendment says that a warrant is generally required, 
but there are well-recognized situations in which a search can 
be carried out without a warrant. Exigent circumstances is a 
situation that comes immediately to mind if--
    Senator Feinstein. Well, let me stop you here. Do you 
recognize Justice Jackson's comment in the 1952 steel case 
where he set up that tripartite framework--
    Judge Alito. I do--
    Senator Feinstein [continuing]. Of Presidential authority 
and when it is at its weakest is when Congress has legislated? 
And in 1978, Congress did legislate and covered the horizon, so 
to speak?
    Judge Alito. Yes, Senator, I recognize that and I think 
that's a very useful framework for addressing issues of 
Executive power. Now, there is a question about what the 
meaning of what Congress did, and that would be a statutory 
question. What is the meaning of the provision of FISA in 
question, and maybe there's no substantial argument about what 
was meant there, but maybe there would be an issue about what 
was meant there, and certainly there could be an issue about 
the meaning of the authorization on the use of military force. 
How far was that intended to go?
    And so the statutory question, I think, would--that 
certainly would be an issue that could come up in this 
situation and probably you would need to--I think you would 
have to resolve the statutory question before you could figure 
out which of the three categories that Justice Jackson set out 
the case fell into.
    Senator Feinstein. Thank you. I've run out of time. I'll 
continue this next session. Thank you.
    Judge Alito. Thank you, Senator.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman. We've got a good 
hearing, I believe. A lot of exchanges have occurred. I will 
agree with Senator Biden. I can't remember a nominee being this 
forthcoming. You have gone into more detail about questions 
that may come up before you without going too far, in my 
opinion, than we have seen before. You have been very open and 
I have been very impressed with your analytical spirit and your 
ability to handle these cases.
    We need an aggressive hearing. I agree with those who say 
that questions need to be propounded to the nominee because 
this is the only chance that, politically, that we will have, 
that you will ultimately be on the bench for life, 
unaccountable to the political process. So it is good to ask 
questions.
    My concern is similar to that of Senator DeWine, that many 
of the accusations and allegations are unfounded or distortions 
are really not fair, and some of the things that have been said 
about you are not correct. If they were correct, you would not 
receive the overwhelming support of your colleagues and have 
that admiration so totally as you do.
    Judge Alito, we talk about the role of a judge and how you 
handle cases that come before you. You were asked, what is your 
opinion on Lopez, and you said, well, I haven't studied that 
case precisely, or at least the background of it. I didn't sit 
on it. Would you explain to us, as an appellate judge, as you 
do today, but also even more so as a Supreme Court Justice, how 
cases come to you and what you should do before you make a 
decision or express an opinion on the ultimate outcome of a 
case, why you should be careful and what this great legal 
system that we have arranges for before a judge makes that 
final decision?
    Judge Alito. Well, certainly, Senator. We have an adversary 
system and that means that both sides get the opportunity to 
present their arguments, and we have established judicial 
procedures and they are time consuming and they are burdensome 
and maybe some people would say that some of them are old 
fashioned. But I think they work well and they are designed to 
make sure that there's the vigorous presentation of both sides 
of the issue that is presented in the case at hand, not some 
abstract issue that might be addressed in a law review article 
or a broad issue that might be addressed in a piece of 
legislation, but an actual concrete case, a dispute between 
real parties that comes before the court. Both sides have the 
opportunity to present the arguments that they think have a 
bearing on that case. The judges get the opportunity to read 
the briefs, and then in--
    Senator Sessions. Can I interrupt you there? And you are 
talking about the appellate court.
    Judge Alito. That's correct.
    Senator Sessions. There has been a trial with jurors and 
witnesses and trial judges and those kinds of things that has 
already occurred. It is now on appeal. No witnesses are being 
called, but the transcript is available and one side or the 
other is alleging that they weren't treated fairly, is that 
correct?
    Judge Alito. That's correct.
    Senator Sessions. So you decide whether or not a fair trial 
occurred. Continue now with the process and how you ultimately 
come to make a decision.
    Judge Alito. Well, we receive briefs and the briefs are 
well thought out by the attorneys and it provides, if the case 
is well briefed, a strong presentation of the positions on both 
sides of the question, and if it's an issue of great public 
importance, there may be other people who file briefs, so 
called friends of the court. On the Supreme Court now these 
days, they get a lot of those on both sides of many of the big 
issues that come before them. So that ensures that they have a 
strong presentation of all the arguments that can be made on 
both sides of the issue, both sides of the case.
    The first step in the process would be to read all of those 
and then there would be an oral argument. At that point, the 
Justices of the Supreme Court or the judges of my court--
    Senator Sessions. Now, oral argument means the lawyers for 
each party come and orally argue the case before the court, is 
that correct?
    Judge Alito. That's right, and--
    Senator Sessions. Now, you should not have made up your 
mind even at that point, should you?
    Judge Alito. You shouldn't. I think very often, I come into 
an oral argument with a tentative idea about how the case 
should be decided. I've thought through the issue as much as I 
can, but my mind is open to the possibility that something will 
happen during the oral argument or later in my discussion with 
the other judges that might change my mind.
    So we have the oral argument and the lawyers will make 
their presentation. In that situation, I have the opportunity 
to ask questions, unlike today. That's a better situation to be 
in, but it gives me a chance to explore the issues in the case 
that are troubling to me and I can pose hypotheticals to the 
lawyers and try to explore how far their arguments go.
    And after we have the argument, the judges get together in 
what's known as the conference. That's a private meeting when 
just the judges are present. And we each discuss the case, and 
very often one of my colleagues will say something that makes 
me think about the case differently than I did going into the 
conference. But at the end of the conference, if we've all 
voted, then we exchange our views and we come to a conclusion 
about how a case should be decided.
    And it's only at the end of that process that we actually 
have a vote on the decision, and then somebody is given the job 
of writing an opinion and sometimes things even change during 
the opinion writing process. There have been numerous cases in 
which I've had the opinion and I've been given the job of 
writing an opinion to affirm and in the process of--or the 
reverse, and in the process of writing the opinion, I see that 
the position that I had previously was wrong. I changed my 
mind. And then I will write to the other members of the panel 
and I will say, I have thought this through and this is what I 
discovered and now I think we should do the opposite of what we 
agreed, and sometimes they'll agree with me and sometimes they 
won't.
    So it's a long process and it's only at the end of that 
whole process that I think a judge is in the position, when the 
opinion is actually going to be issued, the judge is in the 
position to say, now I've done everything I can with this and 
this is how I analyze the issue.
    Senator Sessions. And you said in your opening statement 
that one of the habits that a good judge should develop is the 
habit of delaying reaching conclusions until everything has 
been considered, and I suppose that's why you would be somewhat 
reluctant to express an opinion on Lopez or Bush v. Gore or 
some of these other great decisions, because you would know 
before you rendered such an important decision in a case like 
that that you've given it the most thorough analysis and you've 
read all the briefs and considered all the arguments of the 
parties involved, is that correct?
    Judge Alito. That's an important part of the legal process. 
If anybody has sat on a jury, they've probably been instructed 
by the judge not to reach any conclusions about the case until 
they've heard all the evidence, not to reach premature 
conclusions, and judges have the same obligation. Now, it 
doesn't mean you don't think about things. You do think about 
them, but you don't reach your final conclusion until you've 
gone through this entire process.
    Senator Sessions. You said earlier that no person in this 
country, no matter how high or powerful, is above the law, and 
no person is beneath the law. Can you assure us that you have 
the courage and the determination to rule according to your 
best and highest judgment of the value of the case, regardless 
of whether or not the person who appointed you or the Congress 
who confirmed you or any other political pressures that may 
fall upon you?
    Judge Alito. I can, Senator. I would do that to the best of 
my ability. That is what I've tried to do on the court of 
appeals, and if I'm confirmed, that's what I would do on the 
Supreme Court.
    Senator Sessions. I believe you will. That is your 
reputation. That is what other lawyers say about you. That is 
what professionals who know you conclude. I think it is an 
important commitment that you have made to us.
    You know, we have arguments about a number of cases and the 
Rybar case has come up a good bit. It involves the machine gun. 
I was a United States Attorney, as you were, and I prosecuted 
machine gun cases for years. The Supreme Court said, on Section 
922, there is no jurisdictional element. Now, historically, 
criminal statutes of Federal law have jurisdictional elements. 
The most common statutes historically that were prosecuted were 
interstate transportation of stolen motor vehicles. It is not a 
stolen motor vehicle, it is the interstate transportation that 
makes it a Federal crime, or the interstate transportation of a 
stolen property, or kidnapping. Kidnapping within a State is 
not a Federal crime, it is only kidnapping that goes 
interstate.
    So I guess I would ask you to explain for those who may be 
listening today what this historical procedure is that requires 
a jurisdictional element of an interstate nexus for the Federal 
Government to be able to prosecute a crime in some State or 
county in America.
    Judge Alito. Yes, Senator. Certainly. Well, let me start 
with the Constitution. The Constitution gives the legislative 
branch certain powers, and they're enumerated in the 
Constitution. One of those powers is the power to regulate 
interstate and foreign commerce, and a great deal of 
legislation that Congress passed during the 20th century was 
regulation that was based on its power to regulate interstate 
and foreign commerce, and many of the criminal statutes that 
Congress has passed, the Federal criminal statutes, are based 
on Congress's power to regulate interstate and foreign 
commerce.
    So it's necessary for each of these statutes to fall within 
this power to regulate interstate and foreign commerce, and one 
of the ways of ensuring that each exercise of this power falls 
within Congress's authority under the Commerce Clause is to 
require that the jurisdictional element be proven in the case. 
In the case of firearms, as I mentioned earlier, the Supreme 
Court has said it's enough to show that the firearm at some 
point in its history traveled in interstate and foreign 
commerce, and my experience as a U.S. Attorney and before that 
as an Assistant U.S. Attorney was that this is not a difficult 
burden for prosecutors to meet. I can't recall a case during 
the time I was U.S. Attorney where anybody expressed the 
slightest problem with satisfying this. So this is a very 
simple way of satisfying the interstate commerce element in the 
case of firearms offenses.
    Senator Sessions. I couldn't agree more, and that is what 
all the traditional firearms laws call for and that is how we 
proved every case that I prosecuted. I approved it once because 
it said, ``Made in Italy'' on the gun. But you prove that the 
gun has been transported in interstate commerce and that is an 
element that gives the Federal jurisdiction. As I understand 
your opinion, you said if the Congress had simply put that in 
the statute as an element of the offense, then it would have 
met constitutional muster.
    So I guess I would say to my colleagues on the other side 
and others, maybe we ought to check this law out and write a 
piece of legislation that puts in the jurisdictional element 
like all the other historic criminal offenses have and we get 
this thing done instead of fussing about it. I feel strongly 
about that.
    But when you don't make it a jurisdictional element, then 
it is not a matter of proof, is that not right, Judge Alito, 
and therefore, the defendant does not have all the elements of 
the case proven beyond a reasonable doubt to the jury that here 
is the case? That is why it is important.
    Judge Alito. That is correct.
    Senator Sessions. We talked about a lot of these cases. I 
would just generally like to express my disagreement with those 
who criticize the Garrett case. It did involve the University 
of Alabama. I believe that the Attorney General of Alabama was 
correct to assert that the plaintiff could sue, could get back 
wages, could get their job back, but under the Sovereign 
Immunity Doctrine that protects States from lawsuits, that 
under the way that statute was passed, they could not get money 
damages against the State of Alabama. I think that was the core 
issue in it.
    I also would like to join with Senator DeWine in his very 
cogent analysis of precedent and super precedent. I think that 
was insightful for us and would like to be on the record as 
joining with that.
    Judge Alito, back 20 years ago, you wrote a memorandum to 
Solicitor General Charles Fried, who was a law professor, I 
guess, before he became Solicitor General and went back to 
Harvard and is there now, a brilliant legal mind. He was the 
Solicitor General. You worked for him. You submitted a 
memorandum on a Pennsylvania case, a case that came out of 
Pennsylvania, and it seemed to me to be a preliminary analysis 
of that issue and the question of whether or not that case 
should be--whether the Department of Justice should intervene 
in that case and file a friend of the court brief. Was it a 
preliminary overview of the issue and not the final brief or 
final summary of argument for the appeal?
    Judge Alito. And that's the Thornburgh case that you're 
referring to, Senator.
    Senator Sessions. Thornburgh.
    Judge Alito. Yes. It wasn't a brief. It was a memorandum 
about whether the government should file a brief as a friend of 
the court.
    Senator Sessions. And you pointed out a number of points in 
that decision that was being questioned that I thought were--
the court had overreached and gone too far. A number of them 
are quite erroneous, it appeared to me, and you analyzed that 
very carefully. But before you concluded your argument, you 
suggested, and not suggested, you stated that you did not think 
a frontal assault on Roe v. Wade would be appropriate, is that 
correct?
    Judge Alito. Yes, that's correct.
    Senator Sessions. And was it not the position of President 
Reagan and the Attorney General of the United States at that 
time that Roe v. Wade was wrongfully decided and they would 
seek the opportunity at some point to seek the overruling of 
it?
    Judge Alito. That was the express position of President 
Reagan himself. He had spoken on the issue and he had written 
on the issue.
    Senator Sessions. So your opinion to the Solicitor General 
as a young staff attorney in the Solicitor General's office 
was, in some ways, contrary to that of the President of the 
United States?
    Judge Alito. Well, I was doing what I thought my job was as 
an advocate, which was to outline the litigation strategy that 
would be in the best interests of my client, given what my 
client was interested in, and it seemed to me that the strategy 
that I recommended was the best strategy to be followed.
    Senator Sessions. And did they follow your suggestions?
    Judge Alito. No, they did not. They argued that Roe v. Wade 
should be overruled and the Supreme Court rejected that--
    Senator Sessions. They, in fact, carried out a frontal 
assault and it was not approved by the Court. So I think that, 
to me, plus your other decision in which you ruled that Health 
and Human Services funds could be utilized to fund an abortion 
for those who qualified was a closed question, that case was, I 
thought. There was a dissent in it, but you ruled in favor of 
the pro-choice, the pro-abortion side of that case even though 
a dissent argued that it was in error, is that correct?
    Judge Alito. That is correct. That's what I thought the law 
required. I thought we were required to defer to the Department 
of Health and Human Services's interpretation of the statute 
and so that's how I voted. And if I'd been out to implement 
some sort of agenda to strike down--to uphold any abortion 
regulation that came along, then I would not have voted the way 
I did in that Elizabeth Blackwell case.
    Senator Sessions. Back in your memorandum in 1985 on the 
question of abortion, one of the provisions of the Pennsylvania 
law that was struck down by the court of appeals simply said 
that there must be a humane and sanitary disposal of aborted 
fetuses, and you thought that was unwise and you pointed out 
that there's a Federal statute already on the books that 
mandates the humane disposal of excess wild free-roaming horses 
and burros, did you not?
    Judge Alito. Yes, that's correct. That was the statute.
    Senator Sessions. So this idea that every time a court 
rules on a pro-abortion opinion, that they're always correct, I 
think is not true. I think the court has been awfully arrogant 
and dismissive of the States' rights and legitimate concerns in 
some of these questions that we're dealing with.
    Judge Alito, you know the salary that a Federal judge 
makes, is that right?
    Judge Alito. I do, all too well.
    [Laughter.]
    Senator Sessions. You know what it would be on the Supreme 
Court?
    Judge Alito. I actually don't know exactly, no.
    Senator Sessions. It's a little more, I think, not much. Do 
you think you can live on that?
    Judge Alito. I can. I've lived on a Federal judge's salary 
up to this point.
    Senator Sessions. You've been accused of favoring an all-
powerful Executive a couple of times in this Committee. Can the 
President cut your pay?
    Judge Alito. No, he can't do that. That's in--the 
Constitution says that, fortunately. Well, nobody can. The 
President certainly can't and Congress can't, either.
    [Laughter.]
    Senator Sessions. Have a sigh of relief there. They can 
increase it, though, right?
    Judge Alito. They can, yes.
    [Laughter.]
    Senator Sessions. Well, we have a tight budget. Senators 
and Congressmen feel, sometimes privately they will tell you 
they think they need to be paid more, but we are paid pretty 
generously, in my view, and maybe we need to set some examples 
about financial management. Maybe we would like to do more, but 
it is difficult.
    But I raise that point because a Supreme Court can declare 
null and void a legislative enactment by the Congress, can it 
not, if it violates the Constitution--
    Judge Alito. Yes. Yes, it can.
    Senator Sessions [continuing]. In their opinion?
    Judge Alito. Yes.
    Senator Sessions. Does anybody review the Supreme Court's 
review?
    Judge Alito. No. No.
    Senator Sessions. And Congress can cut off money for any 
program they want to. In fact, the Anti-Deficiency Act says it 
is a crime for any agency of government to spend money that has 
not been appropriated by Congress. Is that a reviewable Act by 
anyone, for Congress not to fund a program or agency of the 
U.S. Government?
    Judge Alito. No, I don't think that's reviewable.
    Senator Sessions. And aren't there things that the 
Executive branch can do that are not reviewable?
    Judge Alito. There are certainly some things that are not 
reviewable. Vetoes are not reviewable. Pardons are not 
reviewable.
    Senator Sessions. So the mere allegation that an act of the 
President is unreviewable may not be as disastrous as it sounds 
or as bad as it sounds, because certain branches are given 
certain powers.
    Judge Alito. That's correct.
    Senator Sessions. I would like to talk a little bit about 
this question of activism, and I want to be frank about it. 
Some of our liberal colleagues have correctly made the point 
that conservatives can be activists, too. And if you take the 
definition of activism as an action by a judge who allows their 
personal, political, or social or moral values to override 
their commitment to the law, do you believe that a judge who is 
conservative can be an activist just as easily as one who is 
liberal?
    Judge Alito. Yes, I do. I don't think that activism has 
anything to do with being a liberal or being a conservative. It 
has to do with not following the proper judicial role. It has 
to do with a judge's substituting his or her own views for what 
the Constitution means and for what the laws mean.
    Senator Sessions. Now, if a statute passed by Congress 
plainly violates the Constitution, is it an activist decision 
if the Court strikes it down, in your opinion?
    Judge Alito. No, I think that's been settled since Marbury 
v. Madison back at the beginning of the 19th century, that when 
a case is presented to the Supreme Court and there is a 
question raised about the constitutionality of a statute and 
the Court concludes that the statute is unconstitutional, it's 
the obligation of the Court to follow the Constitution and not 
the statute.
    Senator Sessions. Well, if you take the definition of 
activism I think that Senator Hatch and others have used that 
indicates, as we just discussed, that it is departing from the 
faithful application of the law, I think you can have liberal 
and conservative activists. But I would just say to you the 
mere striking down of a statute that is unconstitutional is not 
activism, not if you are faithful to the Constitution and to 
the laws of the land.
    And I would say this: I believe on our side of the aisle, 
the deep concern that we have about judicial activism is a 
legitimate one. We believe that there has been a liberal social 
agenda being promoted too often by the courts that is foreign 
to our history and contrary to the wishes of the American 
people. I believe your philosophy is not one to enforce a 
conservative activism. I believe your philosophy is simply to 
follow the law and let the political branches debate these 
issues and decide them through the proper political process.
    Is that fair to say?
    Judge Alito. That's exactly correct. The judiciary should 
do what it is supposed to do, but it has to have respect for 
the political process. And our constitutional system sets up a 
Government under which most of the decisions, the policy 
decisions, the things that affect people in their daily lives--
the spending of money, taxing, decisions about foreign policy, 
and many other areas--are to be made by the political branches 
of the Government, and the judiciary's role is confined to 
enforcing the Constitution and enforcing the laws and not going 
beyond that.
    Senator Sessions. As you analyze how to interpret the 
Constitution of the United States or a statute passed by the 
U.S. Congress, do you believe that authoritative insight can be 
obtained by reading the opinions of the European Union?
    Judge Alito. I don't. I don't think that it's very 
helpful--in fact, I don't think it is helpful to look at the 
decisions of foreign courts for the interpretation of our 
Constitution. I think we can do very well with our own 
Constitution and our own judicial precedents and our own 
traditions. And I don't say that with disrespect to the other 
countries. But I don't think that there are insights to be 
provided on issues of American constitutional law by examining 
the decisions of foreign courts.
    I think that it's very interesting from a political science 
perspective to see what they've done, and I've personally been 
interested in this over the years. And I think it's flattering 
to us that so many other countries have followed our judicial 
traditions. But on issues of interpretation of our 
Constitution, I don't think that that's useful.
    Senator Sessions. Judge Alito, this is a big deal in our 
country today. Millions of Americans believe that the Court is 
losing discipline, that it is not remaining faithful to the 
Constitution. And, in fact, I share many of those views. A lot 
of people do.
    Do you think that if a court, in fact, is not faithful to 
the law but allows personal or political or social views to 
influence their decisions, that this could in the long run 
endanger public respect for law and even undermine the great 
heritage of the rule of law that we have in this country?
    Judge Alito. I think that everybody who holds a public 
office under the Constitution has a solemn responsibility to 
follow the Constitution and the laws that define the role that 
that person, that officer is supposed to play. And I think that 
the continued success of our constitutional system and public 
respect for the constitutional system are dependent on people 
who have the public trust doing that, making a really strong 
effort to follow the provisions of the Constitution and other 
laws that define the role that they are supposed to play.
    Senator Sessions. I would like to just once more touch on 
this Groody case in which there was a search of a young girl. A 
warrant was issued, was it not, by a Federal magistrate? Was it 
a Federal magistrate?
    Judge Alito. It was a State magistrate.
    Senator Sessions. A State magistrate. And the police 
officers go to the State magistrate, and they get a warrant, 
and the magistrate says that the affidavit is made a part of 
the search warrant. And the officers take it, and in their 
search warrant, they made affidavit that the individuals in 
this house known for distributing drugs often had drugs on 
their persons. And they then went and executed the warrant 
after going to the court and getting approval. And they find 
people on the premises, and there were two females, and a 
female officer took the two females into an upstairs bedroom 
and did a quick search by asking them to pull down their outer 
garments--not all their garments--pull up their blouse, and 
determined they had no contraband or weapons on them. And that 
was that. And the case came before you, years later, I suppose, 
on a lawsuit against the police officers. And that is what you 
were ruling on, were you not?
    Judge Alito. That's right, whether they were liable for 
money damages. And under the law, if they had a reasonable 
belief that they were authorized by the warrant to search 
people who were found on the premises, then they should not be 
liable for civil damages. The warrant had been--the warrant had 
incorporated the affidavit for purposes of establishing 
probable cause, and the officers had said in the affidavit that 
there is probable cause to believe that people on the premises 
may have drugs on their possession, and the magistrate judge 
had accepted that by incorporating the affidavit for purposes 
of probable cause. And under those circumstances, I thought 
that at a minimum it was reasonable for the officers to believe 
that the judicial officer, the magistrate, had said that they 
were to do exactly what they did.
    Senator Sessions. I agree.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Sessions. Thank you, 
Judge Alito.
    At this point we will take a break until 5 minutes to 5.
    [Recess 4:39 p.m. to 4:55 p.m.]
    Chairman Specter. We now turn to Senator Feingold for 30 
minutes.
    Senator Feingold. Judge, thank you for all your patience 
today and throughout this process.
    Judge Alito. Thank you, Senator.
    Senator Feingold. There has already been a lot of 
discussion of this topic today, but I would like to be sure I 
understand your opinion about whether the President, as 
Commander in Chief, can ignore or disobey an express 
prohibition that Congress has passed. The Torture Statute is 
one example, but, obviously, I could imagine a variety of 
others as well, as I am sure you could.
    So here is the question: what are the limits, if any, on 
the President's power to do what he thinks is necessary to 
protect national security regardless of what laws Congress 
passes?
    Judge Alito. Well, when you say regardless of what laws 
Congress passes, I think that puts us in that third category 
that Justice Jackson outlined, the twilight zone, where 
according to Justice Jackson, the President has whatever 
constitutional powers he has under--he possesses under Article 
II, minus what is taken away by whatever Congress has done, by 
an implicit expression of opposition or the enactment of a 
statute. And to go beyond that point, I think we need to know 
the specifics of the case. We need to know the constitutional 
power that the President--the type of Executive power the 
President is asserting and the situation in which it's being 
asserted, and exactly what Congress has done.
    Senator Feingold. Then let us take a more concrete example. 
Does the President, in your opinion, have the authority, acting 
as Commander in Chief, to authorize warrantless searches of 
Americans' homes and wiretaps of their conversations in 
violation of the criminal and Foreign Intelligence Surveillance 
statutes of this country?
    Judge Alito. That's the issue that's been framed by the 
developments that have been in the news over the past few 
weeks, and as I understand the situation, it can involve 
statutory questions, the interpretation of FISA, and the 
provision of FISA that says that no wiretapping may be done 
except as authorized by FISA or otherwise authorized by law, 
and the meaning of the authorization for the use of military 
force, and then constitutional questions. And those would be--
those are issues, as I said this morning, that may well result 
in litigation. They could come before me on the Court of 
Appeals for the Third Circuit. They certainly could come before 
the Supreme Court. And before--those are weighty issues 
involving two of the most important considerations that can 
arise in constitutional law, the protection of a country and 
the protection of people's fundamental rights, and I would have 
to know the specifics and the arguments that were made.
    Senator Feingold. They are indeed important questions, and 
that is why it is so important for me to try to figure out 
where you would be heading on this kind of an issue, and in 
fact, the question I just asked you was not something I 
formulated right now. It is the question that I asked word for 
word of the Attorney General of the United States at his 
confirmation hearing in January 2005. He answered as follows: 
``Senator, the August 30th memo--that's the memo that we 
sometimes refer to as the torture memo--has been withdrawn. It 
has been rejected, including that section regarding the 
Commander in Chief authority to ignore the criminal statutes. 
So it's been rejected by the Executive branch. I categorically 
reject it. And in addition to that, as I've said repeatedly 
today, this administration does not engage in torture and will 
not condone torture. And so what you're really discussing is a 
hypothetical situation,'' was the end of his quotation.
    Well, we now know, of course, that it was not a 
hypothetical situation at all, and when the Attorney General 
said he categorically rejected the torture memo, including the 
section regarding the Commander in Chief's authority to ignore 
criminal statutes, he was also not being straight with this 
Committee. So I would like you to try to answer this question. 
Can the President violate or direct or authorize others to 
violate the criminal laws of the United States?
    Judge Alito. The President has the obligation, under 
Article II of the Constitution, to take care that the laws are 
faithfully executed. And the laws mean, first and foremost, the 
Constitution of the United States. That applies to everybody. 
It applies to the President. And the President, no less than 
anybody else, has to abide by the Constitution. And it also 
means that the President must take care that the statutes of 
the United States that are consistent with the Constitution are 
complied with, and the President has an obligation to follow 
those statutes as well.
    Those are the important general principles, and the 
application of them in a particular case depends on the facts 
of the case and the arguments, and a judge needs to know the 
arguments that are being made on both sides before reaching a 
conclusion about the result. Those are the overriding 
considerations.
    Senator Feingold. I take that answer--and, obviously, you 
may not be able to comment on it because of the possibility of 
it coming before you--I take that to be a pretty serious answer 
in terms of the President's responsibilities to uphold and make 
sure that the laws are followed, including the criminal laws of 
the United States. So given the fact that this interpretation 
of the FISA law may well come before you at some point, I take 
it, as you have indicated, that would not only be an initial 
part of your analysis, but an awfully important analysis of 
whether the President has the power to override these criminal 
statutes. I certainly want to say for the record I do not 
believe the President has the ability to do that in this case, 
and in fact, I think, it would be almost impossible to 
interpret the FISA law in any other way than it clearly states, 
that it is the exclusive authority with regard to wiretapping 
outside of the criminal law.
    You said earlier today, Judge, in response to Senator 
Leahy, that these types of gravely important constitutional 
questions very often do not end up being resolved by the 
judiciary, but rather by the other two branches. So what is the 
proper role of the judiciary in resolving a dispute over the 
President's power to disobey an express statutory prohibition?
    Judge Alito. Well, the judiciary has the responsibility to 
decide cases and controversies that are presented to the 
judiciary, and that means that there has to be a concrete 
dispute between parties, and the parties have to have standing 
under the Constitution, and there's a whole doctrine that's 
called the Political Question Doctrine, but it's a very 
misleading term for people who are not lawyers. It doesn't mean 
that a dispute has something to do with politics or anything 
like that, it means that the dispute--in the sense in which 
people usually use the term ``politics''--it means that it's a 
kind of dispute that the Supreme Court has outlined as being 
not a proper dispute to be resolved by the judiciary, involving 
a constitutional issue that should be resolved often between 
the branches of Government.
    And I was talking earlier about some things that the 
President does that are not reviewable, vetoes, pardons, et 
cetera. There are things that Congress does that are not 
reviewable, impeachment, et cetera. In Baker v. Carr, Justice 
Brennan's opinion outlined a whole list of factors that inform 
the analysis of whether something is a justiciable dispute, and 
sometimes these disputes between the branches of Government are 
held by the Supreme Court to fall into that category of being 
disputes that can't properly be resolved by the courts.
    Senator Feingold. Do you expect that this matter of the 
warrantless searches is likely to be resolved with regard to 
the initial political question doctrine, or do you think it 
would be likely to be resolved on the merits with regard to the 
statute and the Constitution?
    Judge Alito. I don't think I could answer that without 
providing sort of an advisory opinion about something that 
could well come up. If this does come up in litigation, then 
the courts have an obligation to decide whether it's a 
justiciable dispute.
    The Political Question Doctrine, this doctrine of issues 
that are not justiciable, often involves conflicts between the 
branches of the Government, and when a person is asserting the 
person's individual rights are violated, that is the type of 
case that is often resolved, I mean typically resolved by the 
judiciary.
    Senator Feingold. Judge, are we not going to be in kind of 
a tough spot if we find out the Supreme Court cannot help us 
figure out whether the FISA law is an exclusive authority or 
not? Is that not going to be hard to resolve between the 
Executive and the Congress?
    Judge Alito. Well, Senator, when I was--when I referred--
when I said in reference to Senator Leahy's question that often 
disputes between the two branches are resolved without 
resorting to the courts, I don't think I was referring 
specifically to this issue, and if I gave that impression, that 
was a false impression.
    I think I was--what I meant to say, and what I hope that I 
did say, was that separation powers disputes in general 
sometimes fall within this doctrine.
    Senator Feingold. You noted a few times today that the 
questions of the President's power in the wiretapping area and 
other areas will likely come before the courts, including the 
Supreme Court. You just did that. As I understand it, you have 
prepared for these hearings over the past few months with a 
variety of practice sessions. Some have called them moot courts 
or murder boards. Was the question of the President's power in 
time of war to take action contrary to a Federal statute ever 
raised in any way during any of the practice sessions for these 
hearings?
    Judge Alito. I have had practice sessions on a great 
variety of subjects, and I don't know whether that specific 
issue was brought up. It may have been. But what I can tell 
you--
    Senator Feingold. You do not recall whether this issue or 
the question of--
    Judge Alito. Well, exactly--no, the issue of FISA certainly 
has been something that I have studied, and FISA is not 
something that has come before me as a judge.
    Senator Feingold. But you do not recall whether or not this 
was covered in the practice session?
    Judge Alito. No, no. The specific question that you raised 
about the conflict between the President's authority to say 
that a statute enacted by Congress should not be followed, but 
the general area of wiretapping and foreign intelligence 
surveillance wiretapping--
    Senator Feingold. And in fact, the recent events that have 
led to this dispute--
    Judge Alito. And the recent--
    Senator Feingold [continuing]. And the possibility--
    Judge Alito. And the recent events.
    Senator Feingold [continuing]. That it may come before you, 
right, Judge?
    Judge Alito. That's correct, but--
    Senator Feingold. OK. Who was present at these practice 
sessions where these questions were discussed, and who gave you 
feedback or suggestions or made any comment whatsoever on the 
answers you gave?
    Judge Alito. Nobody at these sessions or at any of the 
sessions that I had has ever told me what to say in response to 
any question, and--
    Senator Feingold. I just asked--were there no comments or--
    Judge Alito. The comments that I've received--
    Senator Feingold. No advice?
    Chairman Specter. Let him answer the question, Senator 
Feingold.
    Judge Alito. The advice that I've received has gone 
generally to familiarizing me with the format of this hearing, 
which is very different from the format of legal proceedings in 
which I have participated either as a judge or previously when 
I was arguing a legal issue as a lawyer. But nobody has told me 
what to say. Everything that I have said is an expression of my 
own ideas.
    Senator Feingold. And I do not question that. Judge, I 
asked you though whether anybody gave you any feedback or 
suggestions or made any comment whatsoever on the answers you 
gave in the practice session?
    Judge Alito. In general, yes, they've given me feedback, 
mostly about the form of the question--the form of the answers.
    Senator Feingold. Have you received any other advice or 
suggestions, directly or indirectly, from anyone in the 
administration on how you should answer these questions?
    Judge Alito. Not as to the substance of the question, no, 
Senator.
    Senator Feingold. Only as to the style?
    Judge Alito. That's correct, as to the format, not as to 
the--not as to what I should say I think about any of these 
questions, absolutely not. I've been a judge for 15 years, and 
I've made up my own mind during all that time, and--
    Senator Feingold. And again, I am not suggesting that. I am 
asking whether or not--
    Judge Alito. No, I just want to make that clear.
    Senator Feingold [continuing]. Somebody talked about the 
possible legal bases that the President might assert with 
regard to the ability to do this wiretapping outside of the 
FISA statute. Was that kind of a discussion held?
    Judge Alito. Nobody actually told me the bases that the 
President was asserting. I found the letter that was released 
last week or the week before by an Assistant Attorney General, 
setting out arguments relating to this, on the Internet myself, 
and printed it out, and I studied it to get some idea of some 
of the issues that might be involved here. And I looked at some 
other materials that legal scholars have put out on this issue, 
but nobody in the administration actually has briefed me on 
what the administration's position is with respect to this 
issue.
    Senator Feingold. Does it strike you as being inappropriate 
for members of the Department of Justice or the White House 
staff, who are currently defending the President's actions and 
the NSA domestic spying program, to be giving you advice on how 
you might handle questions about that topic in the hearing?
    Judge Alito. It would be very inappropriate for them to 
tell me what I should say, and I wouldn't have been receptive 
to that sort of advice, and I did not receive that kind of 
advice.
    Senator Feingold. Thank you, Judge. I want to come back to 
Mitchell v. Forsythe, in which you participated in the 
Solicitor General's Office. As we have already heard, that case 
considered the Government's argument that President Nixon's 
Attorney General, John Mitchell, should be granted absolute 
immunity for authorizing warrantless wiretaps, and you signed 
the Government's brief, making that argument. The Supreme Court 
rejected the claim of absolute immunity, noting that the 
Attorney General, acting in the inherently secretive national 
security context, has few built-in restraints. Justice White, 
writing for the Court in Mitchell, said, ``The danger that high 
Federal officials will disregard constitutional rights in their 
zeal to protect national security is sufficiently real to 
counsel against affording such officials an absolute 
immunity.''
    Now, that statement still has a lot of relevance today, 
does it not?
    Judge Alito. Yes, it does. Absolute immunity is quite 
restricted under our legal system, but there are some high-
ranking officials in all three branches of the Government, who 
do have absolute immunity just from civil damages, not from 
criminal liability or from impeachment, or removal from office, 
but for--or for injunctive relief, they can be ordered to 
comply with the Constitution, but as far as civil damages are 
concerned.
    Senator Feingold. But when you were at the Solicitor 
General's Office you wrote this memo about the case, saying, 
``I do not question the Attorney General should have this 
immunity for authorizing warrantless wiretap.'' Why did you not 
question the Attorney General's absolute immunity?
    Judge Alito. First of all, because it was the position that 
our client, whom we represented in an individual capacity, and 
it was his money that was at stake here, wanted to make. So we 
had an obligation that was somewhat akin to the obligation of a 
private attorney representing a client.
    Second, it was an argument to which the Department was 
committed. It has been made in Kissinger v. Halperin in the 
Carter administration. It was repeated in Harlow v. Fitzgerald 
in the Reagan administration. In Harlow v. Fitzgerald, the 
Supreme Court, while rejecting the idea that cabinet officers 
in general should have absolute immunity from civil damages, 
had said something like, and I'm not going to be able to 
provide an exact quote, but something like, but the situation 
could well be different for people who are involved in 
sensitive national security matters or foreign matters.
    Senator Feingold. But you said in your memo that, quote, 
``I do not question the Attorney General's absolute immunity.'' 
You did not say it is, quote, ``it is the position of our 
office,'' or as you were just saying, this administration has 
argued this in the past. You, in effect, injected yourself into 
the statement. Clearly, you were expressing your personal 
opinion on this legal issue, were you not?
    Judge Alito. Senator, I actually don't think I was 
expressing a personal opinion. I was saying that in my capacity 
as the writer of this memo who was recommending that the 
argument not be made, even though it was one that our client 
wanted to have made, I wasn't disputing the general argument to 
which the Department was committed. But I thought that we 
should take a different approach, that we should just argue the 
issue of appealability. But that was not the approach that was 
taken.
    Senator Feingold. Let us go on to the Solicitor General's 
brief in the Mitchell case, which you signed. That brief argues 
strongly for the need for absolute immunity, arguing that it is 
far more important to give the Attorney General as much 
latitude as possible in the national security context than to, 
as the brief puts it, quote, ``defer the occasional malevolent 
official,'' from violating the law. Now, I find this statement 
particularly troubling today in light of the current 
administration's warrantless wiretapping in the name of 
national security. Do you agree with that statement in the 
brief, that broad deference is warranted even if some Attorneys 
General may abuse their power?
    Judge Alito. I think the issue of the scope of the immunity 
that the Attorney General has is now settled by Mitchell v. 
Forsythe. That is the law. It was considered--the argument was 
considered by the Supreme Court and they decided the question.
    Judges have absolute immunity for their judicial decisions. 
Members of Congress and their staff have absolute immunity for 
things that they do that are integral to the legislative 
process. The President has absolute immunity from civil damages 
for the President's official acts. But absolute immunity is 
used very sparingly because of just the considerations that 
you're referring to. But the consideration on the other side is 
that people who are involved in lots of things that make other 
people angry--judges deciding cases, Members of Congress 
passing legislation, Presidents doing all sorts of things--
would otherwise be subjected to the threat of so many political 
reprisals that they would be driven from office. It's a policy 
judgment that our law has made that some people should have 
absolute immunity, but it's used very sparingly.
    Senator Feingold. I find your comments interesting because, 
of course, the argument is often fairly made that after 9/11, 
we have to recognize the important role that our Executive 
plays in protecting the American people. But I would also argue 
that it is a particularly compelling time to make sure there 
isn't undue deference, given the types of powers that the 
Executive may seek to use in trying to fight this threat.
    In your class notes from a seminar you gave at Pepperdine 
Law School on ``Civil Liberties in Times of Emergency,'' you 
repeatedly raised the question of whether the judiciary has the 
capability to review certain types of determinations made by 
the Executive branch in national security cases in particularly 
factual issues, and we have recently seen an example of a court 
evidently expressing its frustration at a national security 
case when the facts presented to it by the Executive, which it 
had accepted, apparently did not hold up. Of course, I am 
talking about the Fourth Circuit's serious concern it hadn't 
been told that Jose Padilla needed to be held militarily as an 
enemy combatant because he had plotted to use a dirty bomb in 
the United States, and then finding out that three-and-a-half 
years later, the Justice Department wanted to transfer him to 
law enforcement authorities to stand trial for entirely 
different and much less serious crimes. In Padilla, the Fourth 
Circuit was originally willing to defer to the Executive's 
assertion that it needed to hold Padilla militarily. It was 
quite upset, and justifiably, I think, to find out that it 
might not have deserved such deference.
    I am not going to ask you about that case because I know 
that case is coming before the Supreme Court, but I do want you 
to say something about the role of the judiciary in evaluating 
the facts presented to it in national security cases by the 
Executive branch. How does a court decide whether to rely on 
the facts presented to it by the Executive in a national 
security case?
    Judge Alito. What I was doing in that talk at Pepperdine 
was framing that question, and it's a lot easier to frame the 
question and to ask students to think about it and give me 
their reactions than it is to answer it. We've had examples of 
instances in which the judiciary in the past has had to 
confront this issue of reviewing factual presentations of the 
Executive in times of national crisis and there have been 
instances in which the judiciary has accepted--and I'm thinking 
of the Japanese internment cases, has accepted, which were one 
of the great constitutional tragedies that our country has 
experienced--has accepted factual presentations by the 
political--by the Executive branch that turned out not to be 
true, and from my reading of what went on, were not believed to 
be true by some high-ranking Executive officials at the time.
    But there is the problem of judicial fact finding, which I 
was talking about earlier, and the context of things that may 
be taking place on the battlefield, for example, or things that 
are taking place in wartime probably are more difficult for the 
judiciary to evaluate than other factual questions. So that's 
the dilemma and I can't say that I can provide a clear answer 
to it.
    Senator Feingold. I do appreciate your referencing the 
Korematsu case and the problem there and how this is going to 
become an even more serious issue.
    I want to switch to something else, the matter of the 
Vanguard case and the recusal. This has been characterized 
today as a non-issue. One Senator said it is a joke, it is 
ridiculous. Another one said it is an absurd, just plain 
absurd. And another, the same Senator said it was a blatant 
tactic to torpedo your nomination.
    Well, Judge, I was the Senator that asked Judge Roberts 
very searching questions about whether or not he should have 
recused himself in the Hamdi case. I am sure he didn't enjoy 
it. I didn't particularly enjoy asking the questions, but in 
the end, I voted for him.
    So let me just say to my colleagues, I reject this idea 
that when we come here to do our job of examining a nominee, 
that asking questions about an ethical issue is somehow a 
political game or an attempt to torpedo a nomination. You know, 
this idea of insulating yourselves and insulating the nominee 
before we even ask questions about a subject really is not 
conducive to the kind of process that this Chairman and this 
Ranking Member have made possible on the first nomination and 
this one, as well. So I think this is our job and I ask you 
these questions in this spirit. I might add, although my time 
is limited, that when you hear the actual facts of it, whatever 
conclusions we draw, it is certainly not a trivial matter. It 
is something that I think we ought to cover.
    So let me begin by following up on Senator Kennedy's 
question regarding the promise you made to the Committee. In 
1990, in your Senate questionnaire at the time of your 
nomination to the Third Circuit, you were asked how you would 
handle potential conflicts of interest. You told the Committee 
that you did not believe conflicts of interest relating to your 
financial interests were likely to arise. Nevertheless, you 
wrote, quote, ``I would, however, disqualify myself from any 
cases involving the Vanguard Companies, the brokerage firm 
Smith Barney, or the First Federal Savings and Loan of 
Rochester, New York.'' You also wrote that you would disqualify 
yourself from any case involving your sister's law firm and 
from any case in which you participated or that was under your 
supervision in the United States Attorney's Office. Now, 
whether or not such recusals were required under the Federal 
recusal law, your statement to the Committee was clear, 
unambiguous, and not time limited. Now, I think for that reason 
alone, it is more than legitimate to ask some questions in 
front of this Committee about this.
    This morning, Senator Hatch read from a letter from the 
ABA, apparently received yesterday, although we did not see it 
until today. That letter talked about what you told the ABA 
when you asked about Vanguard and the other ethics issues. You 
also answered a number of questions from Senator Hatch about 
the case.
    But your responses to both the ABA, as far as we can tell 
from the letter, and Senator Hatch did not say anything at all 
about your promise to this Committee. Instead, you responded by 
saying that you didn't notice the recusal issue because you did 
not get so-called clearance sheets in this case because it was 
a pro se case and that you didn't, quote, ``focus'' on the 
issue of recusal. You also didn't mention something that the 
clerk of your court told us in a letter, that all judges have 
standing recusal lists that all cases--all cases--both pro se 
cases and cases where the parties are represented by counsel 
are checked against before they are sent to judges.
    So my first question is this. After you were sworn in as 
judge, did you notify the court of your commitments to the 
Senate and request that the Vanguard Companies, Smith Barney, 
and First Federal Savings and Loan be included on your standing 
list of parties whose involvement in a case would require your 
recusal?
    Judge Alito. Senator, I don't have a copy of the initial 
computer list, so I can't answer that question. At some point, 
Vanguard--the computer lists that are available from, I think, 
1992 and 1993 do not have Vanguard on it and I don't know why 
that is so--
    Senator Feingold. So you don't recall whether you notified 
them or not?
    Judge Alito. I do not know.
    Senator Feingold. Judge, we know you notified the court in 
1990 that the U.S. Attorney's Office and your sister's law firm 
should be on your standing recusal list because you recused 
yourself from a number of such cases in the first several years 
you were on the bench. And we also finally received additional 
documents just yesterday from the court. These documents show 
that the Vanguard Companies and the other financial entities 
you listed in 1990 were not on your standing recusal list, 
which you approved in 1993, 1994, 1995, or 1996. Do you 
remember removing them from your standing recusal list, or is 
it fair to assume--or is it your belief that they were never 
put on your recusal list?
    Judge Alito. Senator, I don't know. I don't know whether 
I--whether they were removed. I don't think I ever told the 
clerk's office, take them off. It may be that at some point, I 
submitted a new list and they were not on the list. I do think 
it's important to keep in mind that this list is just an aid 
for the judge. This is not a comprehensive list of everything 
that will cause a judge to recuse himself.
    Senator Feingold. I understand. I just want to get the 
facts down. So to be clear on the facts, there is no evidence 
that you requested that Vanguard appear on your standing 
recusal list before 2003 when you informed the clerk that 
Vanguard and apparently also Smith Barney should be added, and 
you don't have any independent recollection of adding them to 
the list before then, either--
    Judge Alito. That's correct.
    Senator Feingold [continuing]. Isn't it?
    Judge Alito. That's correct.
    Senator Feingold. Now, you explained to the ABA that the 
problem in these cases was that the conflict screen system was 
not working in these cases and you told Senator Kennedy and 
Senator Hatch this morning that there were some oversights in 
this case, and you wrote in a November 10 letter to Senator 
Specter, due to an oversight, it did not occur to you that 
Vanguard's status might call for your recusal. But it seems 
that the problem was not that the screening program was not 
working or that there was a computer glitch, as you and the 
White House originally suggested, but either that Vanguard was 
not on your recusal list and you didn't remember your promise, 
or that you did not recognize that Vanguard was a party in the 
case. Isn't that a fair characterization?
    Judge Alito. Well, there was an oversight and the oversight 
was on my part in not focusing on the issue of recusal when I 
first received the case.
    Senator Feingold. So there wasn't--so the problem really--
you can admit now, can't you, that this was not a computer 
glitch or a failure of the screening system. You are really 
saying something very different at this point.
    Judge Alito. I am not saying something different as to the 
screening system. The screening system was exactly what I 
described this morning, and I described that to the ABA, 
involving--
    Senator Feingold. But you don't think it was a computer 
glitch anymore, do you?
    Judge Alito. It was not a complete computer glitch, and if 
I could just explain, the origin of that was that when I was 
down here shortly after the President announced his intention 
to nominate me, I started to be--I started to receive questions 
about this Vanguard issue and I was receiving information from 
our clerk's office, and that based on the information that I 
received, it was my impression that there had been a computer 
glitch and that was the origin of that statement and that 
information that constitutional--
    Senator Feingold. Let me ask you this in my last few 
seconds. When you wrote to Judge Scirica indicating that you 
would recuse yourself from the Monga v. Ottenburg case, why did 
you feel the need to argue that you weren't, in fact, required 
to do so? Why not just admit you made a mistake, agree to 
recuse, and move on? Why didn't you just do that when the issue 
was raised here instead of coming up with these different 
explanations that in some cases, I think, have become 
unconvincing?
    Judge Alito. Well, Senator, when the recusal motion came 
in, I was disturbed by it and I wanted to see what the Code of 
Conduct exactly required in this context. Twelve years had gone 
by and no Vanguard case had come up and I hadn't had an 
occasion to look at this issue. And when I looked at it, it--
the recusal motion was very harsh and it accused me of 
unethical conduct and I took it seriously and I wanted to see 
what the Code required, and I researched it and it was my 
conclusion that I was not required by the Code to recuse, but 
then I went on and said, but I still don't want to participate 
in this case and I would like to have the initial decision 
vacated and make sure that Ms. Maharaj had an entirely new 
appeal, and that's what I asked for and that's what was done.
    Senator Feingold. Thank you, Judge.
    Senator Hatch. Mr. Chairman?
    Chairman Specter. Senator Hatch?
    Senator Hatch. On this particular issue, could I take just 
2 minutes out of my next round?
    Chairman Specter. If you want to comment, you may, and 
Senator Feingold can have an opportunity to respond.
    Senator Hatch. Sure. On your form that you filled out, the 
question was, explain how you will resolve any potential 
conflict of interest, including the procedure you will follow 
in determining these areas of concern. Identify the categories 
of litigation and financial arrangements that are likely to 
present potential conflicts of interest during your initial 
service in the position to which you have been nominated. Now, 
this case arose 12 years later, didn't it?
    Judge Alito. Yes, it did, Senator.
    Senator Hatch. That is hardly your initial service. To be 
held to that type of a standard, especially in a case that 
every ethics professor I know of says you didn't do anything 
wrong in, seems to me is going a little bit beyond the pale 
here and it is overblown. Frankly, I think you have got to read 
the whole thing. You are a good lawyer and you have agreed to 
do it, but it was during your initial service. Now, I guess you 
could interpret initial service to be a year or two or 3 years, 
but 12 years? I don't think so.
    Senator Feingold. Mr. Chairman?
    Chairman Specter. Senator Feingold, do you care to--
    Senator Feingold. Yes. I mean, the fact is the nominee 
continues to have the holdings in Vanguard. They have 
appreciated in value. The time hasn't changed that. I think the 
Judge here was at least trying to suggest there might have been 
some mistake made here and instead we are getting sort of 
after-the-fact justifications that put some kind of a time 
limit on the promise he made to this Committee, and there was 
no time limit on the promise that was made to the Committee.
    Senator Hatch. I still have 30 seconds left. Judge, No. 1, 
you have researched it and you didn't have to recuse yourself. 
You concluded that?
    Judge Alito. Yes, I did.
    Senator Hatch. No. 2, these ethics professors have 
concluded that, right?
    Judge Alito. That is right.
    Senator Hatch. No. 3, you have tried to comport with the 
highest standards of ethics during your whole 15 years on the 
bench, right?
    Judge Alito. I have tried to do that and to go beyond 
what--
    Senator Hatch. No. 4, I believe we will have judges from 
that court who will say that you have.
    Chairman Specter. Senator Feingold?
    Senator Feingold. Mr. Chairman, I am curious if this isn't 
a situation where he felt the need to recuse himself why he 
wouldn't have put Vanguard on the list as something he should 
recuse himself from--
    Senator Hatch. Because he was mistaken, that is why.
    Chairman Specter. We are going to move on now. I think that 
this slight exchange is permissible as an exception to our 
general rules. It livens up the afternoon.
    [Laughter.]
    Senator Hatch. I want my 2 minutes back.
    Chairman Specter. Anything at about 5:30 in the afternoon 
is welcome.
    [Laughter.]
    Chairman Specter. Senator Graham?
    Senator Graham. That was an interesting exchange. I guess 
there is no rule against beating a dead horse or we would all 
have quit a long time ago, so--
    [Laughter.]
    Senator Graham [continuing]. So in the next 30 minutes, I 
am going to ask you the same questions you have been asked for 
a whole day, and I hope you will understand if any of us come 
before a court and we can't remember Abramoff, you will tend to 
believe us.
    [Laughter.]
    Senator Graham. Now I know why they give you a lifetime 
appointment for doing this. I was skeptical before, but I think 
once is enough in a lifetime.
    For what it is worth, I think you have done a great job. 
You have been very forthcoming. You have seldom used--I may 
have to decide that you have answered a lot of questions and I 
particularly enjoyed Senator Feingold's questions about 
Executive power and I will pick up on that.
    No. 1, from a personal point of view, do you believe the 
attacks on 9/11 against our Nation were a crime or an act of 
war?
    Judge Alito. That is a hard question to answer and--
    Senator Graham. Good.
    Judge Alito. That is a way of buying 30 seconds while I 
think about the answer. Senator, I think that what I think 
personally about this is really not something that would be--
that would inform anything that I would have to do as a judge.
    Senator Graham. Well, Judge, I guess I disagree because I 
think we are at war and the law of armed conflict in a wartime 
environment is different than dealing with domestic criminal 
enterprises. Do you agree with that?
    Judge Alito. It certainly is.
    Senator Graham. We have laws on the books that protect us, 
the Fourth Amendment included, from our own law enforcement 
agencies coming against our own citizens. But we also have laws 
on the books during a time of war to protect or country from 
being infiltrated by foreign powers and bodies who wish to do 
harm to us. That is a totally different legal concept. Is that 
correct?
    Judge Alito. I am reluctant to get into this because I 
think that things like act of war can well have particular 
legal meanings in particular contexts and, you know, under the 
Constitution.
    Senator Graham. Do you doubt that our Nation has been in an 
armed conflict with terrorist organizations since 9/11, that we 
have been in an undeclared state of war?
    Judge Alito. In a lay sense, certainly we have been in a 
conflict with terrorist organizations. I am just concerned that 
in the law all these phrases can have particular meanings that 
are defined by the cases.
    Senator Graham. That is very important, and let's have a 
continuing legal education seminar here about the law of armed 
conflict in the Hamdi case. The Hamdi case is precedent. Is 
that correct? It is a decision of the Supreme Court.
    Judge Alito. It certainly is, yes.
    Senator Graham. And it tells us at least two to three 
things. No. 1, it tells us something that I find reassuring 
that the Bill of Rights, the Constitution, survive even in a 
time of war.
    Judge Alito. That is certainly true.
    Senator Graham. So there is a holding in that case that I 
want to associate myself with, and I think Senator Feingold 
does, that even during a time of war when your values are 
threatened by an enemy who does not adhere to those values, 
they will not be threatened by your Government unless there is 
a good reason. Do you agree with that?
    Judge Alito. Senator, I agree that the Constitution was 
meant to deal with all of the contingencies that our country 
was going to face. And I think the Framers hoped that we would 
not get involved in many wars, but they were students of 
history and I am sure they realized that there would be wars. 
They provided for war powers for the President and for 
Congress, and the structure is meant to apply both in peace and 
in war.
    Senator Graham. And you said in your previous testimony 
that no political figure in this country is above the law, even 
in a time of war.
    Judge Alito. That is correct.
    Senator Graham. There is another aspect of the Hamdi case 
that no one has picked up upon, but I will read to you. ``In 
light of these principles, it is of no moment that the 
authorization to use military force does not use specific 
language of detention, because detention to prevent a 
combatant's return to the battle field is a fundamental 
incident of waging war. In permitting the use of necessary and 
appropriate force, Congress has clearly and unmistakably 
authorized detention in the narrow circumstances considered 
here, and those circumstances were a person alleged by the 
Executive branch to be an enemy combatant.''
    And one of the principles we found from the Hamdi case is 
that because we are, in my opinion, at war and Congress has 
authorized the President to use force against our enemies, the 
Executive branch, according to the Hamdi case, inherent to his 
power of being Commander in Chief, can detain people who have 
been caught on the battle field.
    Does that make sense to you? Do you agree that is the 
principle of the Hamdi case?
    Judge Alito. That is the principle of the Hamdi case.
    Senator Graham. And it makes perfect sense because if we 
catch someone in Afghanistan or Iraq or any other place in the 
world who is committing acts of violence against our troops or 
our forces, or we catch people here in the United States who 
have infiltrated our country for the purpose of sabotaging our 
Nation, there is no requirement in the law to catch and release 
these people, is there?
    Judge Alito. Well, Hamdi speaks to the situation of an 
individual who was caught on the battlefield.
    Senator Graham. In the history of our Nation, when we 
captured German and Japanese prisoners, was there ever a legal 
requirement anybody advanced that after a specific period of 
time you have to let them go?
    Judge Alito. It is my understanding that the prisoners of 
war who were taken in World War II were held until the conflict 
was over.
    Senator Graham. It would be an absurd conclusion for a 
court or anyone else to tell the executive branch that if you 
caught somebody legitimately engaged in hostile activities 
against the United States that you have to let them go and go 
back and fight us again. That makes no sense, does it?
    Judge Alito. Well, I explained what my understanding is 
about how this matter of holding prisoners was handled in prior 
wars. This issue was addressed in Hamdi, in what was discussed 
in Hamdi in the context of--
    Senator Graham. In the Padilla case, they held an American 
citizen who was engaged in hostile activities against the 
United States allegedly as an enemy combatant and the Fourth 
Circuit said the President, during a time of hostility, has the 
ability to do that.
    Do you agree that that is a part of our jurisprudence?
    Judge Alito. That was the holding in Padilla.
    Senator Graham. Yes.
    Judge Alito. Yes, that was the holding of the lower court 
in--of Padilla, yes.
    Senator Graham. Now, the point I am trying to make is that 
when you are engaged in hostilities, there are some things that 
we assume the President will do. If we don't kill the enemy, we 
capture the enemy. The President, as the Commander in Chief, 
will make sure they don't go back to the battle.
    No. 2, if we catch someone and there is a question to their 
status, whether or not you are prisoner of war under the Geneva 
Conventions, are you an enemy combatant, who traditionally in 
our constitutional democracy determines whether or not--the 
status of a person engaged in hostilities?
    Judge Alito. Well, Padilla--I am sorry--Hamdi said that a 
person who is being detained, an unlawful person who is 
asserted to be an unlawful combatant and who is being detained, 
has the right--has due process rights. And the issue of the 
type of tribunal--and they explained to some degree how that 
would be handled, but the identity of the particular tribunal 
that would be required to adjudicate that was not an issue that 
was decided in Hamdi or any of the other cases.
    Senator Graham. Can you show me an example in American 
jurisprudence where the question of status, whether a person 
was a lawful combatant or an unlawful combatant, was decided by 
a court and not the military?
    Judge Alito. I can't think of an example. I can't say that 
I am able to survey the whole history of this issue, but I 
can't think of one.
    Senator Graham. Can you show me a case in American 
jurisprudence where an enemy prisoner held by our military was 
allowed to bring a lawsuit against our own military regarding 
their detention?
    Judge Alito. I am not aware of such a case.
    Senator Graham. Is there a constitutional right for a 
foreign non-citizen enemy prisoner to have access to our courts 
to sue regarding their condition of confinement under our 
Constitution?
    Judge Alito. Well, I am not aware of a precedent that 
addresses the issue.
    Senator Graham. Do you know of any case where an enemy 
prisoner of war brought a habeas petition in World War II 
objecting to their confinement to our Federal judiciary?
    Judge Alito. There may have been a lower court case. I am 
trying to remember the exact status of the individual and it 
was--
    Senator Graham. Well, let me help you. There were two 
cases. One of them involved six saboteurs, the In Re Quirin--
    Judge Alito. Quirin case, yes.
    Senator Graham. Would you agree with me that that case 
stood for the proposition that in a time of war or declared 
hostilities, an illegal combatant, even though they may be an 
American citizen--the proper forum for them to be tried in is a 
military tribunal and they are not entitled to a jury trial as 
an American citizen in a non-wartime environment?
    Judge Alito. Well, those were a number of German saboteurs 
who landed by submarine in the United States and they were 
taken into custody and they were tried before a military 
tribunal and the case went up to the Supreme Court. The Supreme 
Court sustained their being tried before a military tribunal. 
At least one of them claimed to be an American citizen, and 
most of them--I think all but one or two actually were 
executed.
    Senator Graham. And our Supreme Court said that is the 
proper forum during a wartime environment to try people who are 
engaged in illegal combat activities against our country. Is 
that correct?
    Judge Alito. Well, they sustained what was done under the 
circumstances that I described.
    Senator Graham. Well, that would be a precedent, then, 
wouldn't it?
    Judge Alito. It is the precedent, yes.
    Senator Graham. OK. There was a case involving six German 
soldiers captured in Japan and transferred to Germany, and they 
brought a habeas petition to be released in the Eisen--I can't 
remember the--
    Judge Alito. Eisentrager.
    Senator Graham. Well, you know it. Tell me what the court 
decided there.
    Judge Alito. Well, they were--as I recall, they were 
Germans who were found in China assisting the Japanese--
    Senator Graham. China and not Japan. You are right.
    Judge Alito [continuing]. Assisting the Japanese after the 
termination of the war with Germany, and they were unsuccessful 
in their habeas petition. And that was interpreted prior to the 
Supreme Court's decisions a couple of years ago to mean that 
there was a lack of habeas jurisdiction over them because they 
were being held in territory that was not U.S. territory.
    Senator Graham. For those who are watching who are not 
lawyers, generally speaking in all of the wars that we have 
been involved in, we don't let the people trying to kill us sue 
us, right? And we're not going to let them go at an arbitrary 
time period if we think they are still dangerous because we 
don't want to go have to shoot at them again or let them shoot 
at us again.
    Is that a good summary of the law of armed conflict?
    Judge Alito. The precedent--I don't know whether I would 
put it quite that broadly, Senator.
    [Laughter.]
    Judge Alito. The precedent that you--Johnson v. 
Eisentrager, of course, has been substantially modified, if not 
overruled. Ex Parte Quirin, of course, is still a precedent. 
There was a lower court precedent involving someone who fought 
with the Italian Army and I can't remember the exact name of 
it, and that was the case that I thought you were referring to 
when you first framed the question. But those are the 
precedents in the area.
    Then if you go back to the Civil War, there is Ex Parte 
Milligan and a few others. Now, in Hamdi--
    Senator Graham. We don't have to go back that far.
    Judge Alito. Well, in this area, I think it is actually 
instructive to do it. But in Hamdi, the Court addressed this 
question of how long the detention should take place and they 
said--because they were responding to the argument that this 
situation is not like the wars of the past which had a more or 
less fixed--it was not anticipated that they would go on for a 
generation and they said we will get to that if it develops 
that way.
    Senator Graham. Who is better able to determine if an enemy 
combatant, properly held, has ongoing intelligence value to our 
country? Is it the military or a judge?
    Judge Alito. On intelligence matters, I would think that is 
an area where the judiciary doesn't have expertise. But we do 
get into this issue I was discussing with Senator Feingold 
about the degree to which--the balance between the judiciary's 
performing its function in cases involving individual rights 
and its desire not to intrude into areas where it lacks 
expertise particularly in times of war and national crisis.
    Senator Graham. So having said that, if we have a decision 
to make as a country when to let someone go who is an enemy 
combatant, I guess we have got two choices: we can have court 
cases, or we can allow the military to make a determination if 
that person still presents a threat to the United States, and 
whether or not that person has an intelligence value by further 
confinement.
    Do you feel the courts possess the capabilities and the 
competence to make those two decisions better than the 
military?
    Judge Alito. The courts do not have expertise in foreign 
affairs or in military affairs, and they certainly should 
recognize that. And that is one powerful consideration in 
addressing legal issues that may come up in this context. But 
there is the other powerful consideration that it is the 
responsibility of the courts to protect individual rights in 
cases that are properly before the Court, cases where they have 
jurisdiction in one way or another, cases that are fit for 
judicial resolution.
    Senator Graham. I totally understand that, but our courts 
have not by tradition gotten involved in running military jails 
during time of war. I can't think of one time where a prisoner 
of war housed in the United States during World War II, a 
German Nazi or a Japanese prisoner was able to go and sue our 
own troops about their confinement. I think there is a reason 
there is none of those cases. It would lead to chaos.
    Now, when it comes to treating detainees and how to treat 
them, I think the Congress has a big, big role to play, and I 
think that the courts have a big role to play. Are you familiar 
with the Geneva Convention?
    Judge Alito. I have some familiarity with it.
    Senator Graham. Do you believe it has been good for our 
country to be a signatory to that convention?
    Judge Alito. I think it has, but it's not really my area of 
authority. That's Congress's area of authority.
    Senator Graham. Well, just as an American citizen, are you 
proud of the fact that your country has signed up to the Geneva 
Convention and that we have laid out a system of how we treat 
people who fall into our hands and how we will engage in war?
    Judge Alito. I think the Geneva Convention--and I'm not an 
expert on the Geneva Conventions, but I think they express some 
very deep values of the American people, and we have been a 
signatory of them for some time, and I think that--
    Senator Graham. Now, let's go back to the legal application 
of the Geneva Convention. If someone was captured by an 
American force and detained, either at home or abroad, would 
the Geneva Convention give that detainee a private cause of 
action against the U.S. Government?
    Judge Alito. Well, that's an issue, I believe, in the 
Hamdan case, which is an actual case that's before the Supreme 
Court. It goes to the question of whether a treaty is self-
executing or not. Some treaties are self-executing.
    Senator Graham. Has there ever been an occasion in all the 
wars we have fought where the Geneva Convention was involved 
whether the courts treated the Geneva Convention as a private 
cause of action to bring a lawsuit against our own troops?
    Judge Alito. I'm not familiar with such a case, but I can't 
say whether there might be some case or not.
    Senator Graham. Now, when it comes to what authority the 
Executive has during a time of war, we know the Supreme Court 
has said it is implicit from the force resolution that you can 
detain people captured on the battlefield. Hamdi stands for 
that proposition. Is that correct?
    Judge Alito. That's what was involved in Hamdi.
    Senator Graham. The problem that Senator Feingold has and I 
have and some of the rest of us have is does that force 
resolution--does it have the legal effect of creating the 
exception to the FISA court? And I know that may come before 
you, but let's talk about generally how the law works.
    You say that the President has to follow every statute on 
the books unless the statute allows an exception for the 
President. Is that a fair statement? Just being President, you 
cannot set aside the law.
    Judge Alito. The President has to follow the law, and that 
means the Constitution and the laws that are enacted consistent 
with the Constitution.
    Senator Graham. There is a statute that we have on the 
books against torture. Are you familiar with that statute?
    Judge Alito. The Convention Against Torture, well, the 
statutes implementing the Convention Against Torture.
    Senator Graham. And the statute provides the death penalty 
for somebody who violates the conventions as a possible 
punishment.
    Judge Alito. That's right. If death results, the death 
penalty is available.
    Senator Graham. So this idea that Senator McCain somehow 
banned torture is not quite right. The Convention on Torture 
and the statute that we have implementing that convention were 
on the books long before this year. Is that correct?
    Judge Alito. Yes, they were.
    Senator Graham. Do you believe that any President, because 
we are at war, could say, ``The statute on torture gets in the 
way of my ability to defend the United States, therefore, I 
don't have to comply with it''?
    Judge Alito. The President has to comply with the 
Constitution and the laws of the United States that are enacted 
consistent with the Constitution. That is the principle. The 
President is not above the Constitution and the laws.
    Now, there are issues about the interpretation of the laws 
and the interpretation of the Constitution, but--
    Senator Graham. Are you a strict constructionist?
    Judge Alito. I think it depends on what you mean by that 
phrase, and if you--
    Senator Graham. Well, let's forget that. We will never get 
to the end of that.
    [Laughter.]
    Senator Graham. Have you heard the term used?
    Judge Alito. I have heard the term used.
    Senator Graham. Is it fair to say that when it is used by 
politicians, people like me, we are trying to tell the public 
we want a judge who looks at things very narrowly, that does 
not make a bunch of stuff up? Is that a fair understanding of 
what a strict constructionist may be in the political world?
    Judge Alito. Well, if a strict constructionist is a judge 
who doesn't make things up, then I'm a strict constructionist.
    Senator Graham. There you go.
    [Laughter.]
    Judge Alito. I agree with that, Senator.
    Senator Graham. Now, if there is a force resolution that 
Congress passes to allow any President to engage in military 
activity against someone trying to do us harm, and the force 
resolution says the President is authorized to use all 
necessary and appropriate force against those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks on September 11, 
2001, or just make it generic, if someone argued that that 
declaration by Congress was a blanket exemption to the warrant 
requirement under FISA, would that be a product of strict 
constructionist legal reasoning?
    Judge Alito. I think that a strict constructionist, as you 
understand it, would engage in a certain process in evaluating 
that question, and a strict constructionist, a person who 
interprets the law--and that's how I would put it. A person who 
interprets the law would look at the language of the 
authorization for the use of military force and legislative 
history that was informative, maybe past practices--were there 
prior enactments that are analogous to that? What was the 
understanding of those? And a host of other considerations that 
might go into the interpretive process.
    Senator Graham. I guess what I am saying, Judge, is I can 
understand when the Court ruled that the President has it 
within his authority to detain people on the battlefield under 
this force resolution, that makes sense. I understand why the 
President believes he has the ability to surveil the enemy at a 
time of war. And the idea that our President or this 
administration took the law in their own hands and ignored 
precedent of other Presidents or case law and just tried to 
make a power grab I don't agree with. But this is really not 
about you, so you don't have to listen. I am talking to other 
people right now.
    [Laughter.]
    Senator Graham. The point I am trying to make is what 
Justice Jackson made, that when it comes to issues like this, 
when we surveil our enemy and we cross our own borders and we 
have information about our own people, we need, in my opinion, 
Judge, to have the President at the strongest. And that would 
be when Congress through collaboration with the President comes 
up with a method of dealing with that situation, and that it 
could be very dangerous in the long run if we overinterpret war 
resolutions, because I have got a problem with that. And I 
believe that if we don't watch it and we overinterpret these 
resolutions, we will have a chilling effect for the next 
President. The next President who wants to use force to protect 
us in a justifiable manner may be less likely to get that 
resolution approved if we go too far.
    And, Judge, you are likely to rule on these issues, and my 
hope is before you rule that we all sit down between the 
Executive and the legislative and we talk about this. Because 
as you said before, our Nation, not only our legal system, is 
strongest when we work together. Executive power, the 
Constitution allows the President to nominate judges. If 
Congress tried to change that by statute and say that we would 
like to pick the judges, what would happen, hypothetically?
    Judge Alito. I have a certain self-interest in the answer 
to that question.
    Senator Graham. I thought you might.
    [Laughter.]
    Judge Alito. I think that--
    Senator Graham. Clearly--clearly--the statute would fall to 
the Constitution. A veto is not reviewable by courts because 
that is basically a political decision. Under the Constitution, 
what is the vote requirement to get confirmed to the Supreme 
Court?
    Judge Alito. It is a majority.
    Senator Graham. Hypothetically speaking, what if the Senate 
passed a statute or had a rule that said you cannot get a vote 
to be on the Supreme Court unless you get 60 votes? How does 
that sit with you?
    Judge Alito. Speaking in my personal capacity or in my 
judicial capacity?
    [Laughter.]
    Senator Graham. Your judicial capacity.
    Judge Alito. Senator, I just don't think I should answer 
questions like--constitutional questions like that. I need to 
know--
    Senator Graham. What if the Senate said during an 
impeachment that we don't want a two-thirds vote of the Senate, 
we want a majority vote, would the Senate's action fall to the 
Constitution?
    Judge Alito. Well, when--there are certain questions that 
seem perfectly clear, and I guess there is no harm in 
answering--
    Senator Graham. Is there any doubt in your mind the 
Constitution requires a majority vote to be on the Supreme 
Court or any other Federal judicial office?
    Judge Alito. You know what? I remember this phrase from law 
school--
    Senator Graham. Is that a super duper precedent?
    Judge Alito. I think it's what we call in law school ``the 
slippery slope,'' and if you start answering the easy 
questions, you're going to be sliding down the ski run and into 
the hard questions, and that's what--
    Senator Graham. Well, then--
    Judge Alito.--I'm not too happy to do.
    Senator Graham. That is what I tried to get you to do, and 
I am glad you didn't do it.
    The bottom line to this exercise is you have got a job, I 
have got a job, and what disturbs me a bit is that we are 
beginning to hold the lawyer responsible for the client. And in 
my remaining time here, what damage could be done to the legal 
profession or the judiciary if people in my profession start 
holding your client's position against the advocate?
    Judge Alito. Well, I think it has been traditionally 
recognized that lawyers have an obligation to their clients. 
That's how our legal system works. Some lawyers have private 
clients. Some lawyers work for Government agencies, and the 
lawyer-client relationship there is not exactly the same. But, 
still, there is a lawyer-client relationship. And I think our 
whole system is based on the idea that justice is best served--
    Senator Graham. If you were an Attorney General 
representing a State that passed a ban on partial-birth 
abortion, would it be fair to that Attorney General if they 
came before this Committee to hold that against them if you 
disagreed with them on the subject matter?
    Judge Alito. I think that Attorneys General--I can speak to 
the issue of the Attorney General of the United States because 
I know there's a statute and there's an understanding about 
what the Attorney General of the United States will do when an 
Act of Congress is called into question, and the obligation of 
the Attorney General is to defend the constitutionality of the 
Act of Congress unless no reasonable--
    Senator Graham. A lawyer's obligation is to defend their 
client's interest. Is that an accurate statement of what a 
lawyer is supposed to do?
    Judge Alito. It certainly is, yes.
    Senator Graham. No matter whether that client is popular or 
not or the position is popular or not. Is that correct?
    Judge Alito. Consistent with ethical obligations and 
professional responsibility, yes, indeed.
    Senator Graham. What has this process been like for you and 
your family? And in a short period of time, could you tell us 
how to improve it?
    Judge Alito. Well, it's been a combination of--at times 
it's been a thrill and at times it's been extremely 
disorienting. I spent the last 15 years as a judge on the court 
of appeals, and you probably could not think of a more 
cloistered existence than a judge on the court of appeals. Most 
of the time nobody other than the parties pays attention to 
what we do. When an article is written in the paper about one 
of our decisions, it's ``a Federal appeals court in 
Philadelphia'' or in whatever city. And this has been a strange 
process for me. I made some reference to that yesterday, but I 
understand the reason for it. And I am reluctant in my current 
capacity as a nominee to offer any suggestions about the 
process. I think that's--you're carrying out your 
responsibility. I spoke about the fact that different people 
under the Constitution have different obligations, and you have 
the advice and consent function, Congress, the Senate does. And 
I think it's for the Senate to decide what it should do in this 
area.
    Chairman Specter. Thank you, Senator Graham.
    Senator Schumer?
    Senator Schumer. Thank you, Senator Specter. And I want to 
thank you, Judge Alito. It has been a long day.
    Judge Alito, in 1985 you wrote that the Constitution--these 
are your words--does not protect a right to an abortion. And 
you said to Senator Specter a long time ago, I think it was 
about 9:30 this morning, 9:45, that those words accurately 
reflected your view at the time.
    Now let me ask you, do they accurately reflect your view 
today? Do you stand by that statement? Do you disavow it? Do 
you embrace it? It is OK if you distance yourself from it and 
it is fine if you embrace it. We just want to know your view.
    Judge Alito. Senator, it was an accurate statement of my 
views at the time. That was in 1985, and I made it from my 
vantage point as an attorney in the Solicitor General's Office, 
but it was an expression of what I thought at that time. If the 
issue were to come before me as a judge, if I am confirmed and 
if this issue were to come up, the first question that would 
have to be addressed is the question of stare decisis, which I 
have discussed earlier, and it's a very important doctrine and 
that was the starting point and the ending point of the joint 
opinion in Casey. And then if I were to get beyond that, if a 
court were to get beyond the issue of stare decisis, then I 
would have to go through the whole judicial decisionmaking 
process before reaching a conclusion.
    Senator Schumer. But sir, I am not asking you about stare 
decisis. I am not asking you about cases. I am asking you about 
this, the United States Constitution. As far as I know, it is 
the same as it was in 1985 with the exception of the 27th 
Amendment, which has nothing to do with what we are talking 
about. Regardless of case law, in 1985, you stated--you stated 
it proudly, unequivocally, without exception--that the 
Constitution does not protect a right to an abortion. Do you 
believe that now?
    Judge Alito. Senator--
    Senator Schumer. I am not asking about case law. I am not 
asking about stare decisis. I am asking your view about this 
document and whether what you stated in 1985 you believe today, 
you have changed your view, you have distanced your view. You 
can give me a direct answer. It doesn't matter right now which 
way you answer, but I think it is important that you answer 
that question.
    Judge Alito. The answer to the question is that I would 
address that issue in accordance with the judicial process as I 
understand it and as I have practiced it. That is the only way 
I can answer that question.
    Senator Schumer. Sir, I am not asking for the process. 
Obviously, you would use a judicial mindframe. You have been a 
judge for 15 years. I am asking you, you stated what you 
believed the Constitution contained. You didn't say the 
Constitution as interpreted by this or that. You didn't say the 
Constitution with this exception or that exception. It was a 
statement you made directly. You made it proudly. You said you 
are particularly proud of that personal belief that you had. Do 
you still believe it?
    Judge Alito. And Senator, I would make up my mind on that 
question if I got to it, if I got past the issue of stare 
decisis, after going through the whole process that I have 
described. I would need to know the case that was before me and 
I would have to consider the arguments, and they might be 
different arguments from the arguments that were available in 
1985--
    Senator Schumer. But sir, I am not asking you about case 
law. Now, maybe you read a case and it changed your view of the 
Constitution. I am asking you, and not about the process you 
would use. I am asking you about your view of the Constitution, 
because as we all know, and we are going to talk about stare 
decisis in a few minutes, that if somebody believes, a judge, 
especially a Supreme Court Justice, that something is 
unconstitutional, even though stare decisis is on the books, 
governs the way you are and there is precedent on the books for 
decades, it is still important to know your view of what the 
Constitution contains.
    And let me just say, a few hours ago, in the same memo, I 
can't remember who asked the question, but you said you backed 
off one of the statements you had written. You said it was 
inapt, which taught me something. I didn't know that there was 
a word that was inapt, but you said that it was inapt to have 
written that the elected branches are supreme. So you discussed 
that, your view on that issue, without reference to case law 
because there was no reference to case law when you wrote it. 
There was no reference to case law when you wrote this.
    Can you tell us your view, just one more time, your view 
about the Constitution not protecting the right to an abortion, 
which you have talked about before and you said you personally 
proudly held that view. Can you?
    Judge Alito. The question about the supremacy--the 
statement about the supremacy of the elected branches of 
government went to my understanding of the constitutional 
structure of our country, and so certainly that's a subject 
that it is proper for me to talk about. But the only way--you 
are asking me how I would decide an issue--
    Senator Schumer. No, I am not. I am asking you what you 
believe is in the Constitution.
    Judge Alito. You are asking me my view of a question that--
    Senator Schumer. I am not asking about a question. I am 
asking about the Constitution, in all due respect, and 
something you wrote about before--
    Judge Alito. The Constitution contains the Due Process 
Clause of the Fifth Amendment and the 14th Amendment. It 
provides protection for liberty. It provides substantive 
protection. And the Supreme Court has told us what the standard 
is for determining whether something falls within the scope of 
the protection--
    Senator Schumer. Does the Constitution protect the right to 
free speech?
    Judge Alito. Certainly, it does. That is in the First 
Amendment.
    Senator Schumer. So why can't you answer the question of 
does the Constitution protect the right to an abortion the same 
way, without talking about stare decisis, without talking about 
cases, et cetera?
    Judge Alito. Because answering the question of whether the 
Constitution provides a right to free speech is simply 
responding to whether there is language in the First Amendment 
that says that the freedom of speech and freedom of the press 
can't be abridged. Asking about the issue of abortion has to do 
with the interpretation of certain provisions of the 
Constitution.
    Senator Schumer. Well, OK. I know you are not going to 
answer the question. I didn't expect really that you would, 
although I think it would be important that you would. I think 
it is part of your obligation to us that you do, particularly 
that you stated it once before. So any idea that you are 
approaching this totally fresh without any inclination or bias 
goes by the wayside.
    But I do have to tell you, Judge, your refusal, I find 
troubling. It is sort of as if I asked a friend of mine 20 
years ago, if a friend of mine 20 years ago said to me, he 
said, ``You know, I really can't stand my mother-in-law,'' and 
a few weeks ago I saw him and I said, ``Do you still hate your 
mother-in-law?'' He said, ``Well, I'm now married to her 
daughter for 21 years, not 1 year.'' I said, ``No, no, no. Do 
you still hate your mother-in-law?'' And he said, ``Mmm, I 
can't really comment.'' What do you think I would think?
    Judge Alito. Senator, I think--
    Senator Schumer. Let me just move on. You have a very nice 
mother-in-law. I see her right here and she seems like a very 
nice person.
    [Laughter.]
    Senator Schumer. OK.
    Judge Alito. I have not changed my opinion of my mother-in-
law. That's a question--
    Senator Schumer. I am glad you haven't. She seems nice.
    Judge Alito.--I can answer that question.
    Senator Schumer. Let me go now to stare decisis, because 
what you have said is you start out with stare decisis, 
although I think a lot of people would argue you start out with 
the Constitution upon which stare decisis is built. OK. Now, 
you have tried to reassure us that stare decisis means a great 
deal to you. You point out that prior Supreme Court precedents 
like Roe will stand because of the principle. While you are on 
the Third Circuit, of course, you can't overrule precedents of 
the Supreme Court, but when you are on the Supreme Court, you 
have a little bit more flexibility.
    I just want to ask you this. Stare decisis is not an 
immutable principle, right? You have said that before in 
reference to Senator Feinstein. When Chief Justice Roberts was 
here, he said it was discretionary. So it is not immutable, is 
that right? You have told us it is not an inexorable command. 
It doesn't require you to follow the precedent.
    Judge Alito. It is a strong principle--
    Senator Schumer. Correct.
    Judge Alito [continuing]. And in general, courts follow 
precedents. They need a special--the Supreme Court needs a 
special justification for overruling a prior case.
    Senator Schumer. But they have found them, and I think you 
went over this. I can't recall if it was Senator Kohl or 
Senator Feinstein, but you went through some cases. In recent 
years, the Court has overruled various cases in a rather short 
amount of time. You mentioned, I think it was, National League 
of Cities about fair labor standards and it was overruled just 
9 years later by Garcia. Stanford v. Kentucky was overruled by 
Roper v. Simmons. Bowers v. Hardwick was overruled by Lawrence 
v. Texas. And, of course, Brown v. Board was overruled by 
Plessy. So the bottom line, I mean, we can go through this--
    Senator Hatch. Plessy was overruled by Brown.
    Senator Schumer. I mean, Plessy was overruled by Brown. I 
apologize.
    So the only point I am making is that despite stare 
decisis, it doesn't mean a Supreme Court Justice who strongly 
believes in stare decisis won't ever overrule a case, is that 
correct? You can give me a yes or no on that. It is pretty 
easy.
    Judge Alito. Yes.
    Senator Schumer. Of course. OK. So now let us try this 
another way. Here is a quote: ``Stare decisis provides 
continuity to our system. It provides predictability, and in 
our process of case-by-case decisionmaking, I think it is a 
very important and critical concept.'' The statement sounds 
reasonable to me. It sounds to me like it is something you said 
to Senator Specter and others, right?
    Judge Alito. I agree with the statement.
    Senator Schumer. Yes. Let me show you who said that 
statement. It was Justice Thomas. Justice Thomas came before us 
and stated that, and yet when he got on the Supreme Court, he 
voted to overrule, or expressed a desire to overrule, a whole 
lot of cases, including some very important ones on the Court. 
Here are some quotes. ``Casey must be overruled.'' ``Buckley v. 
Valeo should be overruled.'' ``Bacchus,'' just last year, 
``should be overruled.'' And as you can see, it is a very large 
number of cases, and these aren't all of them. In fact, Justice 
Thomas said that a 1789 unanimous case by the Supreme Court, 
Calder v. Bull, which no one talked about for centuries, should 
be overruled. So what do you think of Justice Thomas's theory 
of stare decisis and how he applies it?
    Judge Alito. Well, Senator, I have explained my 
understanding of the doctrine of stare decisis and it is 
important to me. I think it is an important part of our legal 
system. It is--
    Senator Schumer. How about what Justice Thomas--what do you 
think of what he is doing?
    Judge Alito. Well, I don't think I should comment on all of 
those cases.
    Senator Schumer. OK. Let me just say this. You may not want 
to comment, but his fellow Justice, Justice Scalia, did. Here 
is what Justice Scalia said about Justice Thomas and stare 
decisis, and remember what he said when he was sitting in the 
same chair you are sitting in. He pledged fealty to stare 
decisis.
    Justice Scalia said, Justice Thomas, quote, ``doesn't 
believe in stare decisis, period. If a constitutional line of 
authority is wrong, he would say, let us get it right.'' Then 
Justice Scalia said, ``I wouldn't,'' speaking of himself, ``I 
wouldn't do that.'' And it is particularly relevant, because if 
you believe something is not in the Constitution, at least the 
way Justice Thomas talks about stare decisis, he would let the 
Constitution overrule it and stare decisis would go by the 
wayside, and I am not saying Justice Thomas was disingenuous 
with the Committee when he was here. I am just saying that 
stare decisis is something of an elastic concept that different 
judges apply in different ways.
    So let me go to another one here. I think I have covered 
everything I want to do with Justice Thomas. Here is another 
quote. ``There is a need for stability and continuity in the 
law. There is a need for predictability in legal doctrine and 
it is important that the law not be considered as shifting 
every time the personnel of the Supreme Court changes.'' That 
again sounds reasonable to me, quite a lot like what you said. 
You don't have any dispute with that statement, do you?
    Judge Alito. No, I don't.
    Senator Schumer. OK. Well, let us see who said that one. It 
was Robert Bork when he came before this Committee to be 
nominated. Now, here is what Judge Bork wrote in the National 
Review Online just a few weeks ago. He wrote, quote, 
``Overturning Roe v. Wade should be the sine qua non of a 
respectable jurisprudence. Many Justices have made the point 
that what controls is the Constitution itself, not what the 
Court has said about it in the past.'' And even before his 
hearing, by the way, he sort of cut back on what he said at the 
hearing, I guess. It may have been in a different context, but 
here is a quote that he said a year, I think, before he came 
before us. He said, ``I don't think that in the field of 
constitutional law precedent is all that important.'' He said, 
in effect, that a Justice's view of the Constitution trumps 
stare decisis. That is not an unrespectable view. It is 
probably not the majority view of Justices, but it is there.
    So, for example, it was his view, similar to Justice 
Thomas, that the Constitution does not protect a right to--that 
if the Constitution does not protect the right to an abortion, 
as you wrote in 1985, but we are not talking about how you feel 
today, it would be overruled. It should be overruled despite 
stare decisis. And one of the things I am concerned about here 
is that what you wrote, and I think Senator Kohl went over it a 
little bit, is what you wrote about Judge Bork in 1988. And by 
the way, this was not when you were working for someone or 
applying for a job. As I understand it, you were the U.S. 
Attorney in New Jersey, well ensconced, a very good U.S. 
Attorney, and it was with some New Jersey news outlet. I saw 
the cite, but I didn't know what it was. You said that, about 
Justice Bork, ``I think he was one of the most outstanding 
nominees of this century. He's a man of unequaled ability,'' 
and here's the key point, ``understanding of constitutional 
history, and then someone who has thought deeply throughout his 
entire life.''
    Now, first, one of the most outstanding of the 20th century 
with Oliver Wendell Holmes and Benjamin Cardozo, and people you 
have expressed admiration for, Frankfurter, and Brennan and 
Harlan, I find it disconcerting that you would say that he is a 
great nominee of the 20th century in his understanding of 
constitutional law, and yet he so abjectly rejects stare 
decisis.
    Judge Alito. Well, I certainly was not aware of what he had 
said about stare decisis when I made those comments. I have 
explained those comments. They were made when I was an 
appointee of President Reagan, and Judge Bork was President 
Reagan's--
    Senator Schumer. Excuse me. You were not working in the 
White House. You were a U.S. Attorney prosecuting cases. There 
was no obligation for you to say what you said, right?
    Judge Alito. No, but I had been in the Department of 
Justice at the time of--
    Senator Schumer. I know, but it was a voluntary interview 
with some New Jersey news outlet, is that correct?
    Judge Alito. And I was asked a question about Judge Bork, 
and I had been in the Department at the time of his nomination, 
and I was an appointee of President Reagan, and I was a 
supporter of the nomination.
    Senator Schumer. Let's go to the next line of questioning 
here, but again, the point being judges, Justices, overrule 
cases despite stare decisis, particularly when they think the 
Constitution dictates otherwise. And now I want to turn to your 
own record in the Third Circuit, something you mentioned 
yesterday and today. When you have been on the Third Circuit, 
of course, you had to follow Supreme Court precedent, and you 
professed a whole lot of times your desire to do that, and I am 
not disputing that here. But it is also true that when you were 
on the Third Circuit, a more apt analogy in terms of stare 
decisis would be about Third Circuit precedents, because if you 
should get on the Supreme Court, stare decisis will apply to 
Supreme Court decisions the way stare decisis to a Third 
Circuit Judge applies to Third Circuit decisions. That is 
pretty fair, right?
    Judge Alito. Yes, and I've tried to follow Third Circuit 
precedents while I've been--
    Senator Schumer. Although you have dissented more than most 
of your fellow judges, but we will leave that aside. What I 
want to show here is how many times, when you were on the Third 
Circuit, your fellow judges on the Third Circuit--who I am sure 
have high respect for you. I know a lot of them are coming here 
in a few days, and I think that is nice, I do not have any 
problem with that.
    [Laughter.]
    Senator Schumer. Well, there has been some criticism about 
it, not by me.
    I just want to show you what they have said when it comes 
to their view of your respect for Third Circuit precedent, 
stare decisis, as relevant as we can find it to you. So I am 
going to read a few. There are a whole bunch. But in Dia v. 
Ashcroft--they are all on this chart I guess. There are too 
many so the print is not large enough for most people to see. I 
wish there were fewer. In Dia v. Ashcroft the majority of your 
court said that your opinion ``guts the statutory standard and 
ignores our precedent.'' In LePages, Inc. v. 3M your opinion 
was criticized as ``being contrary to our precedent and that of 
the Supreme Court.'' In RNS Services v. Secretary of Labor you 
again dissented, and the majority again argued that, ``Your 
dissent overlooks our holding in the instant case and prior 
cases.'' In Riley v. Taylor, the en banc majority argued that 
your view ignored case after case relied by the majority, and 
``accords little weight to those authorities.'' In Texas 
Eastern Transmission Corp., a panel criticized your opinion 
because, ``It does not comport with our reading of the relevant 
case law.'' In Bray v. Marriott Hotels, the majority noted that 
binding circuit precedent made your analysis improper in a 
discrimination case.
    And the list goes on and on. I do not have to--but other 
cases that are mentioned here, United Artists v. Warrington, 
Beauty Time v. VU Skin Systems. Here is a final one, Rappa v. 
New Castle County, Judge Garth, the man I think you clerked for 
and is regarded as a mentor to you, wrote that your majority 
opinion was ``unprecedented'' in its ``disregard of established 
principles of stare decisis.'' ``Nothing,'' Judge Garth wrote, 
``in the jurisprudence of the Supreme Court or in ours suggests 
that a three-judge panel of a court of appeals is free to 
substitute its own judgment for that of a four-justice 
plurality opinion, let alone that of the entire court.''
    So those are just some of the cases in which your own 
colleagues said you did not follow stare decisis. Now, there 
may have been good reason. I am not--you are much more expert 
on these cases than I am. There may have been good reason for 
you to do it, but I think it shows something, and that is, you, 
if we have to project as to what kind of a Supreme Court 
Justice you will be, are not going to be as reluctant as some 
to overturn precedent even by the rules of stare decisis. And 
so you wonder if you are as willing as you are to depart from 
precedent on the Third Circuit, what is going to happen if you 
should get on the Supreme Court? Your response because I 
mentioned a whole lot of cases here.
    Judge Alito. You did, Senator, and I think that you need to 
examine each of the cases to see whether what I did was 
justified. Let me just take one that struck me when you read 
from it, and that was the United Artists case. What I said 
there was that a Supreme Court decision that had come up, that 
had been handed down after the most recent Third Circuit 
decision relating to the issue, superseded what our court had 
said. So I was following an aspect of stare decisis there. I 
was following what we call horizontal--I'm sorry--vertical 
stare decisis following the Supreme Court, and I don't think 
there's any dispute that when the Supreme Court hands down a 
decision that's in conflict with one of our earlier cases, we 
have to follow the Supreme Court.
    Senator Schumer. Yes, but there is no question that in that 
situation, Judge Cowen said your opinion was, ``wrong to 
revisit an issue that has already been decided and failed to 
give respect and deference to the circuit's well-established 
jurisprudence employing the improper motive test in the 
substantive due process land use context. It is rather 
complicated, but he is sure saying you did not follow, in his 
view, you did not follow court precedent.
    Judge Alito. And, Senator, there was this body of Third 
Circuit precedent, and then--and it said that it's proper for a 
Federal court to get involved in a zoning dispute, which is 
traditionally a local matter, if there is simply an improper 
motive, whatever that might be. And in the--after that the 
Supreme Court, in an opinion by Justice Souter, emphasized that 
the test under substantive due process in an area like this, an 
area that the other judge in the majority and I thought was 
like this, is whether what was done shocks the conscience.
    And so you have a Supreme Court decision intervening, and 
in that situation I thought it was our obligation--and I wrote 
the majority opinion there--to follow what the Supreme Court 
had said.
    Senator Schumer. But my only point being here is one 
judge's view of what stare decisis requires, and another 
judge's view of what stare decisis requires, are not always the 
same. The concept has some degree of elasticity, and when, in 
reference to questions by people, you say, well, how do you 
feel about this case--and particularly Roe, which has been 
where we started off here--``I believe in stare decisis,'' it 
means that you are going to take precedent into account, but it 
certainly does not necessarily mean where you would come out.
    Let me tell you where I conclude where you would come out, 
just sort of summarizing this argument. First, again, greatly 
disturbing I think to many Americans would be that you will not 
distance yourself from your 1985 view that the Constitution 
does not protect a right to a woman's right to choose, that 
that view has not changed, that you have refused to say, unlike 
you did in another part of that 1985 memo, that you think it is 
wrong now, which would lead one to think that you probably 
believe in it.
    Second, you have told us you respect precedent and stare 
decisis, but we have seen that the stated respect for stare 
decisis hardly determines whether a Supreme Court Justice will 
vote to uphold precedents, not because when they come here they 
are being disingenuous with us. I do not think that at all. But 
because the concept is somewhat elastic, because it does not 
guarantee that you will uphold precedent, and particularly does 
not guarantee it when the Constitution conflicts with stare 
decisis, with the precedents of the Court.
    And finally, to top it off, we have seen that your Third 
Circuit record can hardly provide a great deal of comfort in 
this area either, that many of your fellow judges criticized 
you for ignoring, abandoning, or overruling precedent.
    Taken together these pieces are very disturbing to me. Your 
blanket 1985 statement, not distanced from, that the 
Constitution does not protect the right to an abortion; the 
fact that respect for precedent and stability does not prevent 
overruling of a past decision; and your own record of reversing 
or ignoring precedent on the Third Circuit lead to one 
inevitable conclusion.
    We can only conclude that if the question came before you, 
it is very likely that you would vote to overrule Roe v. Wade.
    I yield back my time.
    Judge Alito. Well, Senator, could I just respond to that--
    Senator Schumer. Please, the time is yours.
    Judge Alito [continuing]. To that question. My Third 
Circuit record, in looking at abortion cases, provides the best 
indication of my belief that it is my obligation to follow the 
law in this area and in all other areas. If I had had an agenda 
to uphold any abortion regulation that came along, I would not 
have voted as I did in my Third Circuit cases.
    Now, I've testified here today about what I think about 
stare decisis. I do think it's a very important legal doctrine, 
and I've explained the factors that figure into it. It would be 
the first question that I would consider if an issue like this 
came before me.
    Senator Schumer. Let me just say though, you have ruled on 
certain cases. Many of them were on technicalities. And in all 
of them as a Third Circuit Judge, you were bound by Supreme 
Court precedent. You never, in the Third Circuit, were squarely 
presented with the question that I asked, which is a decisive 
question, which is whether the Constitution protects a woman's 
right to choose. You were never asked in the court, you were 
never asked to overturn Roe v. Wade. And even if you were in 
the Third Circuit, you could not, because you were bound by the 
precedent of the Court. I do not think your Third Circuit 
rulings are dispositive on what you would do should you become 
a U.S. Supreme Court Justice.
    Thank you, Mr. Chairman.
    Judge Alito. If the matter were to come up before me on the 
Supreme Court, I would consider the issue of stare decisis, and 
if the case got beyond that, I would go through that entire 
judicial decisionmaking process that I described. That's not a 
formality to me. That is the way in which I think a judge or a 
Justice has to address legal issues, and I think that is very 
important, and I don't know a way to answer a question about 
how I would decide a constitutional question that might come up 
in the future, other than to say I would go through that whole 
process.
    I don't agree with the idea that the Constitution always 
trumps stare decisis--
    Senator Schumer. Does not always, but sometimes--
    Chairman Specter. Let him finish his answer, Senator 
Schumer.
    Senator Schumer. I am sorry.
    Judge Alito. I don't agree with the theory that the 
Constitution always trumps stare decisis. There would be no 
need for the--there would be no room for the doctrine of stare 
decisis in constitutional law if that were the case.
    Senator Schumer. But, sir, it can trump stare decisis, does 
not always, but can. Is that correct?
    Judge Alito. It certainly can, and I think that is a good 
thing because otherwise, Plessy v. Ferguson would still be on 
the books.
    Senator Schumer. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Schumer.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    Judge Alito, are you familiar with the question that 
lawyers sometimes pose to demonstrate how unfair a question can 
be: ``When did you stop beating your wife? ''
    Judge Alito. I am familiar with that question.
    Senator Cornyn. And I suppose the reason why--
    [Laughter.]
    Senator Cornyn. Since someone was picking on your mother-
in-law, I thought we would inject your wife into this. But the 
point is this: it is an unfair question because it implies, 
regardless of what your response has been, that at one time you 
did, when, in fact, you have not.
    And I just want to explore, to start with, Senator 
Schumer's questions about what is written in this Constitution 
about abortion. Does the word abortion appear anywhere in the 
Constitution?
    Judge Alito. No. The word that appears in the Constitution 
is ``liberty.''
    Senator Cornyn. And outside of, let's say, the Fourth 
Amendment, perhaps, does a right to privacy appear, explicitly 
stated, in the Constitution?
    Judge Alito. There is no express reference to privacy in 
the Constitution, but it is protected by the Fourth Amendment 
and in certain circumstances by the First Amendment and in 
certain circumstances by the Fifth and the 14th Amendments.
    Senator Cornyn. And the reason it is protected is because 
the Supreme Court has so interpreted the Constitution. Isn't 
that correct, sir?
    Judge Alito. That is correct. It is a question of 
interpretation rather than simply looking at what is in the 
text of the document.
    Senator Cornyn. So to ask you whether the right to free 
speech, which is explicitly protected under the First Amendment 
of the Constitution--to ask you whether that is in there and 
then just ask you in the same question, or at least same series 
of questions, whether the right to abortion on demand is in the 
Constitution, one is explicitly stated in the First Amendment; 
the other is the product of Court interpretation. Isn't that 
accurate, sir?
    Judge Alito. Yes, that is my view of it.
    Senator Cornyn. And to be more specific, it is what the 
courts have called penumbral rights. In other words, Griswold, 
I believe it was, talked about this being the penumbra of the 
emanations from stated rights in the Constitution. Can you 
clarify that for us so we can get it right?
    Judge Alito. Yes. Griswold talked about emanations and 
penumbras, and Griswold has later been understood by the 
Supreme Court as being based on the protection of liberty under 
the Fifth Amendment and the 14th Amendment.
    Senator Cornyn. Well, I was particularly troubled by the 
exchange of questions and answers because the suggestion is 
that you have somehow been unresponsive. And as I said in my 
opening statement, I do think that there are those who have 
already decided to vote against your nomination and are looking 
for some reason to do so. And I think one of the reasons that 
they may claim is that you have been nonresponsive. But I 
thought it was telling that Senator Schumer said he didn't 
expect you to answer that question.
    I would like to refer back to Senator Biden's comments 
where he praised you at the close of his remarks. He said, ``I 
appreciate you for being responsive.''
    I agree with him. I cannot remember a nominee being this 
forthcoming. I appreciate that you have answered nearly every 
question put to you. Thank you for being so responsive. And 
indeed, according to one count, you have answered more than 250 
questions thus far today.
    So I think in all fairness, the question is not a fair one 
to ask you whether the right to an abortion is written in this 
document. The fact is, and the reason why you apply the 
doctrine of stare decisis is because you recognize the 
precedential effect, the authoritative effect of the Supreme 
Court's interpretation of this document as the law of the land, 
do you not, sir?
    Judge Alito. That is correct.
    Senator Cornyn. And you mentioned Plessy v. Ferguson. I 
think it was Daniel Patrick Moynihan, a Democrat Senator from 
Senator Schumer's State, who said if it weren't for the ability 
of the courts to go back and revisit these decisions, how would 
you ever correct a mistake? And I think the fact is that you 
have mentioned one of the instances where, thank goodness, the 
Court has gone back and revisited a terrible decision which has 
been a scar on our country and our jurisprudence, Plessy v. 
Ferguson.
    And if the Court, in Brown v. Board of Education, had felt 
prohibited from revisiting that mistake, then we would still be 
living under that scar and I think we can all agree that that 
would be a terrible thing. And thank goodness, we have a 
Supreme Court that has had the courage to go back, in 
accordance with the principles of stare decisis, and revisit 
terribly wrong decisions and to correct them and to bring us 
where we are today.
    You know, it must be strange to have people listen to the 
questions and answers here because on one hand, you will hear 
rather complimentary comments. On the other hand, even Senators 
who are still at least for the record undecided--I hate to 
think what it would be like if they had actually determined to 
vote against you already--making rather strong critical 
statements.
    But it means a lot to me to know that the people who know 
you best, the people who have worked with you on the Third 
Circuit Court of Appeals, are very complimentary. I happen to 
believe that we ought to look to the people that know you best 
as being in the best position to judge your character, your 
integrity, your competence, and not this caricature that 
happens during these confirmation proceedings by the attack 
dogs, the interest groups who pay a lot of money, spend a lot 
of time trying to tear down that reputation for integrity and 
competence that you have worked so hard to build during your 
lifetime.
    But I was struck--and we will hear more about the judges 
who have served with you on the Third Circuit--but I was struck 
by a quote that I read from your former colleague, the late 
Judge Leon Higginbotham.
    Who is Judge Higginbotham, by the way, or who was he?
    Judge Alito. Well, he was the former Chief Judge of the 
Third Circuit and he was a Federal judge for many years and 
greatly respected.
    Senator Cornyn. Well, this is what the Harvard Journal of 
African-American Public Policy--how it described him, in part. 
They said, ``Higginbotham was appointed to the Federal circuit 
bench by President Jimmy Carter in 1977. Higginbotham is also 
former president of the Philadelphia Chapter of the NAACP.''
    And would it be fair to say that you and Judge 
Higginbotham, while you served together, you tended to look at 
the Constitution differently? In other words, could he fairly 
be described as a liberal?
    Judge Alito. I think probably most people would describe 
him that way. I thought we got along very well, and we 
generally agreed. There were cases in which we disagreed and 
cases in which I dissented from an opinion that he wrote. And I 
think there were cases in which he dissented from opinions that 
I wrote.
    Senator Cornyn. Well, I wonder if you are aware of one 
thing that he was quoted as having said. This is out of the Los 
Angeles Times, comments he made about you to Judge Timothy 
Lewis, quoted in the Los Angeles Times, ``Sam Alito is my 
favorite judge to sit with on the court. He is a wonderful 
judge and a terrific human being. Sam Alito is my kind of 
conservative. He is intellectually honest, he doesn't have an 
agenda, he is not an idealogue.''
    Were you aware that Judge Higginbotham had said that about 
you?
    Judge Alito. No, I wasn't. I was not.
    Senator Cornyn. Well, I am pleased to tell you he did say 
it, according to the Los Angeles Times, and I think it is a 
high compliment that someone who would have perhaps such a 
divergent view and perhaps different political beliefs than you 
would say those sorts of things about you and your record on 
the Third Circuit Court of Appeals.
    Now, I have some charts, too, like Senator Schumer. I like 
my charts better than his, but we will let others be the judge. 
But I want to ask you a little bit about Justice Sandra Day 
O'Connor. You had some very high compliments about her 
yesterday. Senator Kyl, her fellow Arizonan, said some 
wonderful things about her, and I am confident that all of 
those accolades are well deserved. Some have called her the 
model Supreme Court Justice, and that is high praise, it really 
is.
    And I would like to submit for my colleagues' consideration 
that if Sandra Day O'Connor was in the mainstream, then Sam 
Alito is, too, and this is why. For example, Justice O'Connor 
and Judge Sam Alito both set limits on Congress's commerce 
power. Sandra Day O'Connor and Sam Alito both struck down 
affirmative action policies that had strict numerical quotas, 
and both--this ought to be a shocker to some based on what we 
have heard here today--both Justice Sandra Day O'Connor and 
Judge Sam Alito have criticized Roe v. Wade.
    In fact, this is pretty astonishing to me. According to the 
Harvard Law Review, over the last decade Justice O'Connor 
agreed more often with Chief Justice Rehnquist, 80 percent of 
the time, than with any other Justice. And let's go through 
these individually.
    First of all we talk about whether it can be a Federal 
crime to possess a machine gun that doesn't implicate 
trafficking or some aspect of interstate commerce. But, you 
know, all we have to do is go back to a little bit of the 
history we all learn in high school to remember the Articles of 
Confederation and the fact that the States were all-powerful. 
The national Government was crippled because it really had no 
power and was subject to the unanimous vote of the states 
before it could do things that were very important.
    And so then in Philadelphia, the delegates there wrote, and 
ultimately ratified, a Federal Constitution. But you already 
alluded to this earlier. This Constitution takes into account 
that not only will the national Government have certain powers, 
but there will also be some powers still reserved to the 
States.
    It is a fact, is it not, sir, that when we talk about 
federalism, really what we are talking about is the fact that 
our Federal Government, our national Government is one of 
enumerated powers that are set out in the Constitution and all 
powers that are not enumerated or necessary and proper to the 
execution of those enumerated powers as a general rule are 
reserved to the states?
    Judge Alito. Yes, that is the structure of the 
Constitution. The Federal Government has certain--has 
enumerated powers. Some of them are broad, but those are the 
powers the Federal Government has and the theory--and the 
structure is that everything else was reserved for the States.
    Senator Cornyn. And so when someone suggests that you are 
taking a crabbed or cramped or unorthodox view toward 
congressional power because you say that it is not clear from 
the statute or the crime with which an individual is charged 
that interstate commerce is implicated, aren't you enforcing 
that original understanding of what powers were expressly or 
otherwise delegated to the Federal Government and what powers 
were reserved to the States?
    Judge Alito. Well, that is what Lopez, as I understand it, 
tried to do. It said that although the commerce power is broad, 
it is not all-encompassing. It involves the regulation of 
interstate and foreign commerce, and this statute that we have 
in Lopez goes beyond that. And my case, the Rybar case, seems 
to me to be as close to the situation in Lopez as any case that 
I was aware of.
    Senator Cornyn. Well, I know my constituents back in Texas, 
and I suspect people all across the country would be glad to 
know that you don't believe that all wisdom and all power is 
centered in Washington, D.C., but that under our Federal system 
the State and Federal governments are partners, and that 
enforcing this structure that is a product of our history and a 
product of our Constitution is an important thing for judges to 
do.
    But it is interesting because if Sandra Day O'Connor was in 
the mainstream on the interpretation of the Commerce Clause, 
then so is Judge Sam Alito. As a matter of fact, I believe in 
Rybar you said the question before the court is whether Lopez 
is a constitutional freak, or words to that effect, because as 
you pointed out, it was a little bit of a shock to everyone's 
system to see the Supreme Court was actually serious about 
recognizing the authority of the States and that there are 
limits to congressional power. But Lopez reestablished or 
perhaps restated that understanding.
    Judge O'Connor joined the majority in the Lopez decision, 
did she not, sir?
    Judge Alito. Yes, she did.
    Senator Cornyn. And so she shared at least to that extent 
your conviction that there is some limit to congressional power 
and that there was some point beyond which Congress's authority 
could not reach unless it was made clear that it was pursuant 
to one of the powers enumerated under the Constitution. Did I 
say that roughly correctly?
    Judge Alito. I agree with that she said that Congress's 
power under the Commerce Clause is not all-encompassing. And my 
job as a court of appeals judge is not to say that a decision 
of the Supreme Court should be limited to its facts; in other 
words, not applied as a precedent in any other comparable 
situation that comes along. My job is to take those precedents 
seriously and that is what I tried to do.
    Senator Cornyn. So when Justice O'Connor held in Lopez that 
Congress could not prohibit the possession of handguns near 
schools because mere possession is not commerce, you were doing 
your very best to stick to that precedent established by the 
U.S. Supreme Court when you wrote your opinion in Rybar. Is 
that correct?
    Judge Alito. That's correct. In Lopez, the Supreme Court 
said that possession of a firearm, mere possession is not a 
commercial activity, and the interstate commerce--the Commerce 
Clause authorizes the regulation of interstate commerce, and 
the activity involved in Rybar was the possession of a firearm. 
So it followed that if it was a noncommercial activity in 
Lopez, it must be a noncommercial activity in Rybar. That's how 
I saw it.
    Senator Cornyn. And you didn't say the State couldn't 
criminalize possession of a machine gun, did you?
    Judge Alito. No. The State could, and I think a great 
majority of States, if not--the great majority certainly have 
legislation of that nature.
    Senator Cornyn. And you pointed out here that if the 
Congress had been a little more careful in showing the basis 
upon which mere possession could affect interstate commerce, 
that that would be a different case, and perhaps the outcome 
might have been different in Rybar.
    Judge Alito. Yes, that was a strong point that I made in 
the dissent, that if Congress had made findings, it would have 
been a very different case for me.
    Senator Cornyn. You know, the interesting thing to me about 
Rybar as well, you have been accused of always ruling for the 
big guy or the government. But in Rybar you decided for the 
person accused of illegally possessing the machine gun.
    Judge Alito. Well, that's correct. He was a criminal 
defendant.
    Senator Cornyn. You didn't rule for the government?
    Judge Alito. No, I did not. I thought the government had 
not come forward with evidence to support the position that 
they were arguing.
    Senator Cornyn. Well, there is another question about 
affirmative action cases. We have alluded a little bit to that. 
And Justice Sandra Day O'Connor, the model Supreme Court 
Justice who is clearly in the mainstream, you and Justice 
O'Connor both agreed to strike down affirmative action policies 
which set numerical quotas which resulted in reverse 
discrimination. She did in Wygant v. Jackson Board of Education 
in 1986. You did in Taxman v. Board of Education in 1996. Would 
you agree with that, sir?
    Judge Alito. I would. Taxman was a case that our court 
considered en banc, that is, all the judges were sitting, and I 
sit on a very moderate court that is certainly not unreceptive 
to the concept of affirmative action in general. But the vote 
in that case was 8-4. It wasn't a close vote. And I joined the 
opinion that was written by my late colleague, Judge Mansmann, 
holding that that particular affirmative action plan was in 
violation of Title VII.
    Senator Cornyn. Let's talk again about Roe v. Wade. Now, 
this is going to be a shocker for some people based upon what 
has gone on before, because it has been suggested that but for 
Sandra Day O'Connor, Roe v. Wade may be overruled; that this is 
really what lies in the balance here during your confirmation 
proceedings. But the fact is that Justice Sandra Day O'Connor, 
the model Supreme Court Justice, wrote in The City of Akron v. 
Akron Center for Reproductive Health, ``The trimester three-
stage approach adopted by the Court in Roe cannot be supported 
as a legitimate or useful framework.'' Roe, she said, ``is 
clearly on a collision course with itself.''
    And in the memorandum for which you have been disparaged 
many a time when you were in the Solicitor General's office, 
you recommended, ``Don't mount a frontal attack on Roe v. Wade 
but instead use the opportunity to nudge the Court toward the 
principles in Justice O'Connor's Akron dissent.''
    So when you had an opportunity to urge the reversal of Roe 
v. Wade, even as a lawyer for the administration, you urged a 
more cautious approach and one consistent with Justice 
O'Connor's opinion at the time. Isn't that correct, sir?
    Judge Alito. Yes, Justice O'Connor's opinion in Akron, 
which was the last previous big Supreme Court decision at that 
time, was one of the things that influenced me in the memo that 
I wrote in Thornburgh. She analyzed Roe, and I was quite 
persuaded by the points that she made in the Akron decision. 
And the general approach--the arguments that I was recommending 
that the Government make in the Thornburgh case were along the 
lines of the undue burden standard I think that was later--that 
she later adopted. I was arguing that the particular provisions 
should be challenged on their own terms. One of the provisions 
was an informed consent provision that was virtually identical 
to the informed consent provision that later came up in Casey, 
and in Casey it was upheld.
    Senator Cornyn. Well, let's talk about Casey. That was a 
1992 decision by the U.S. Supreme Court. Isn't that correct, 
sir?
    Judge Alito. Yes.
    Senator Cornyn. And in Casey, Justice Kennedy, Justice 
Souter, and Justice O'Connor, the model Supreme Court Justice, 
essentially scuttled the principal argument in favor of the 
right to abortion based on this trimester approach, which 
Justice O'Connor criticized and which has also been criticized 
by people like Justice Ginsburg, former counsel to the American 
Civil Liberties Union, who now serves on the Court; Laurence 
Tribe, a well-known liberal legal scholar at Harvard. The fact 
is Roe v. Wade, the writing itself, the justification for the 
decision has been widely criticized by legal scholars all 
across the spectrum, has it not, sir?
    Judge Alito. It certainly had been at the time of the 1985 
memo, and although I wasn't recommending that the Government 
get into that issue, I mentioned in the memo some of the 
authors who had criticized Roe's reasoning.
    Senator Cornyn. Well, and in 1992, the only thing that 
really survived in Roe v. Wade, which was written 33 years ago, 
was the essential holding--I guess you could call it that--and 
there have been some quotes about the importance of reliance 
interests in terms of observing--giving it the benefits of 
stare decisis or precedent. But essentially the whole legal 
scheme or basis upon which abortion was protected was changed 
to an undue burden standard. Isn't that right, sir?
    Judge Alito. In Casey, the Supreme Court moved away from 
the trimester approach, and they adopted the undue burden 
standard, which had been set out in some earlier opinions by 
Justice O'Connor and the joint opinion in Casey made it clear 
that that was now the governing standard under Supreme Court 
law.
    Senator Cornyn. But the plurality opinion--Justice 
O'Connor, Justice Kennedy, Justice Souter--did not say you can 
have abortion without limitation. It did recognize the right of 
the States to pass laws which regulate abortion as long as it 
did not create an undue burden on a woman's right to have an 
abortion, according to that decision. Isn't that roughly what 
the plurality said?
    Judge Alito. Yes, that's what they held.
    Senator Cornyn. Let's get the other chart.
    My point is that if on at least three counts, on the basis 
of does Congress's commerce power, limitations on congressional 
authority in the affirmative action area, and in terms of 
criticizing the basis upon which Roe v. Wade was decided 33 
years ago, you and Justice O'Connor bear a lot of similarities. 
I would just ask that if Justice O'Connor is a model Supreme 
Court Justice and, therefore, by definition is not outside the 
mainstream, then it strikes me that Sam Alito is not outside 
the mainstream, either.
    Another thing you have been criticized for is your 
unlimited view of Presidential power, that is the way it has 
been phrased, the suggestion that somehow you are always going 
to defer to the President and the Executive branch when the 
legislative branch and the Executive branch vie for authority, 
whether it is in the intelligence gathering area, the National 
Security Agency and this electronic eavesdropping, which is 
really an early warning system to try to identify terrorists so 
we can protect ourselves against another 9/11, or other acts of 
Presidential power.
    Senator Graham talked a little bit about the Hamdi 
decision, where the U.S. Supreme Court interpreted the use of 
force authorization that was issued by Congress after the 9/11 
attack authorizing the President to use necessary force to 
defeat the Taliban and al Qaeda, the supposed perpetrators of 
the 9/11 attacks. The question came up in Hamdi whether that 
included an authorization by Congress to detain terrorists 
without charging them with a crime. My understanding is in that 
case that the Supreme Court, it was fractured, but the 
plurality opinion that Justice O'Connor wrote said that that 
authorization of use of force was a congressional Act which 
trumped the statutory limitation that Congress had previously 
passed about detaining American citizens without charging them 
with a crime. Did I get that roughly correct?
    Judge Alito. Yes, that's exactly correct. Eighteen U.S.C. 
4001, which is called the anti-detention statute, says that 
nobody may be detained without authorization, and in Hamdi, 
Justice O'Connor's opinion concluded that the authorization for 
the use of military force constituted statutory authorization 
to detain a person who had been taken prisoner as an unlawful 
combatant in Afghanistan.
    Senator Cornyn. Well, I appreciate you pointing out that 
one of the other important statements in Hamdi was that people 
who are detained have certain due process rights and that the 
President cannot exercise his powers as Commander in Chief 
without judicial review or without anyone else looking at it, 
including a court or military tribunal under appropriate 
circumstances. But the fact is, Justice O'Connor took a view of 
Presidential power there that some might consider to be rather 
broad, the power to detain an American citizen who is a 
suspected terrorist without actually charging them with a crime 
for the reasons that Senator Graham stated, that if that person 
who was actually captured in Afghanistan and brought to 
Guantanamo Bay, if they were released, then they likely would 
return to the battlefield and plot and plan and execute lethal 
attacks on American citizens.
    Interestingly, people like to characterize judges as 
conservative or liberal. One interesting thing to me about that 
is Justice Scalia, who you have been likened to, actually 
dissented and held that it was unconstitutional for the 
President to detain these individuals without charging them 
with some crime, like treason or something else, isn't that 
correct, sir?
    Judge Alito. Yes, that's correct. This is a case where 
Justice O'Connor's view of the scope of Executive power was 
broader, considerably broader, than Justice Scalia's. Justice 
Scalia's position was that unless habeas corpus is suspended, 
and there are only limited circumstances in which that can take 
place, then there would have to be a criminal trial.
    Senator Cornyn. Judge Scalito, my--Alito, excuse me. After 
talking about Judge Scalia--you know what I was thinking in the 
back of my mind, a nickname that you have acquired sometimes, 
and I apologize.
    But the fact is that people try to characterize judges as 
being somewhere on the political spectrum or making results-
oriented decisions based on some ideology. But the fact is, and 
I will just ask you if you agree with this, whether good judges 
who try to apply the law to cases and facts that come before 
them on an individual basis without regard to who wins and who 
loses, their decisions could be characterized as liberal, 
conservative, and anywhere in between. Has that been your 
experience?
    Judge Alito. I think that is correct, Senator. I think that 
all these labels when you are trying to describe how judges 
behave, how they do their work, have their limitations and 
different people use them in different ways.
    Senator Cornyn. Thank you very much.
    Chairman Specter. Well, thank you very much, Senator 
Cornyn, for that round of questions. When Senator Cornyn 
misstates even one word, with his competency, you know it is 
getting late.
    [Laughter.]
    Chairman Specter. Thank you, Judge Alito, for your--we can 
all agree, there may be some areas of controversy among the 18 
of us, but I think we can all agree about your stamina and your 
poise and your good humor and even some subtle humor.
    Your family has shown the same kind of stamina. The crowd 
has pretty well emptied out, but the Alitos are all still here 
and they have provided not only support but occasion for a 
comment or two. I noticed a big smile on your wife's face when 
you were asked if you stopped beating your wife.
    [Laughter.]
    Judge Alito. I wasn't asked whether she had stopped beating 
me.
    [Laughter.]
    Chairman Specter. Now that is some of that subtle humor 
that your profiles talk about. We would like to see a little 
more of it, Judge. Perhaps if we went 11 hours instead of 10 
hours, we would get to that.
    Senator Leahy. Oh, please don't.
    [Laughter.]
    Chairman Specter. I have been vastly--
    Senator Leahy. I will certify that he is very, very funny. 
Just don't do the other two hours.
    [Laughter.]
    Chairman Specter. That raises the question as to what else 
you will certify to, Senator Leahy.
    Senator Leahy. That is enough for today.
    [Laughter.]
    Chairman Specter. I want to make one comment, which I have 
been pondering as to whether I ought to make it, but there is a 
story which is inapplicable to you, Judge Alito, so I think I 
can make it. The question is always raised, who is behind a 
successful man, and the answer is a surprised mother-in-law.
    [Laughter.]
    Chairman Specter. But you have negated that infrequently 
told story.
    So I want to thank you for your testimony today and I want 
to thank my colleagues for what we are proceeding to do here in 
accordance with our commitment to have a full, fair, and 
dignified hearing. I think we are on the way. These proceedings 
are being very broadly covered. You can't pick up the front 
page of any newspaper in America without seeing your smiling 
face, Judge. In an era where the media is filled with criticism 
about the Congress, I think it is a good day for the U.S. 
Congress to have these proceedings because people have been 
watching them and they see long hours and they see seriousness 
and they see important issues and they see the kind of dignity 
which we have had here today. I thank my colleagues and I thank 
you, Judge Alito.
    We will resume this hearing tomorrow morning at 9:30.
    [Whereupon, at 7:03 p.m., the Committee was adjourned, to 
reconvene on Wednesday, January 11, 2006, at 9:30 a.m.]


 NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

                              ----------                              


                      WEDNESDAY, JANUARY 11, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room 216, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, 
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
    Chairman Specter. The Judiciary Committee will now proceed 
with the confirmation hearing for Judge Alito for the Supreme 
Court of the United States.
    Welcome back, Judge Alito.
    We have three members who have not had their first round of 
questioning of 30 minutes, and we will proceed there, and then 
we will have a second round of questioning for 20 minutes each. 
I expect we will need to work a long day today. It is my hope 
that we might finish the questioning of Judge Alito. That might 
be overly optimistic, but we will see how things go.
    Senator Durbin, you are recognized for 30 minutes.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Senator Leahy. Before we start the clock on Senator Durbin, 
if I might say on the questions, one, I admire the stamina both 
of the nominee and his family, but a number of us have been 
troubled by what we see as inconsistencies in some of the 
answers, and we are going to want to go into those in some 
depth, on the issue of one person/one vote, Vanguard recusal, 
unitary theory of Government, CAP and so on.
    I want to clear up in my mind and in the minds of many over 
here what we see as inconsistencies. I know many have announced 
up here exactly how they are going to vote before they even ask 
questions. I am one of the one who likes to make up my mind 
after asking the questions, so there will be a number more.
    Chairman Specter. Thank you, Senator Leahy. I appreciate 
the comment. There are many issues. Judge Alito has responded 
for about 7\1/2\ hours so far, and we are going to have another 
hour and a half on opening statements, and then with each 
Senator having 20 minutes on a second round, six more hours. So 
we will see if he has covered the waterfront, and this will be 
a full and fair hearing. We will give every opportunity to ask 
the questions.
    Senator Leahy. Mr. Chairman, with you as Chairman, I know 
it will be a full and fair hearing, and that is one thing that 
every single Democrat on this side is aware of.
    Chairman Specter. I think that is very important for the 
nominee, for the Committee and for the country, and we will do 
that. The adjunct to full, fair is dignified, and I think so 
far we are on track.
    OK, Senator Durbin, keep us on track. Senator Durbin is 
recognized. We will start the clock at 30 minutes.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Judge Alito, thank you for coming for the second day and 
not quite the end of the first round. I thank your family for 
their patience, listening to all of our questions, and I hope 
that at the end of the day we will feel that we have really 
added something to the process of choosing a person to serve in 
a lifetime appointment to the highest Court in our land.
    I listened to you carefully yesterday address an issue 
which is very important to me, the Griswold case, because I 
think that it is a starting point for me when it comes to 
appointments to the Supreme Court. If I had any doubt in my 
mind that a Supreme Court nominee recognized the basic right of 
privacy of American citizens as articulated in Griswold, I 
could not support the nominee. And I listened as you explained 
that you supported that right of privacy and that you found the 
Griswold decision grounded in the Fifth Amendment as well as 
the 14th Amendment.
    I would ask you at this point--you obviously support Brown 
v. Board of Education, do you, and the finding of the Court in 
that?
    Judge Alito. Certainly, Senator.
    Senator Durbin. Do you believe that the Constitution 
protects the right of children in America to be educated in 
schools that are not segregated?
    Judge Alito. Absolutely, Senator. That was one of the 
greatest, if not the single greatest thing that the Supreme 
Court of the United States has ever done.
    Senator Durbin. As you read that Supreme Court decision, 
that historic decision, they find the basis for that decision 
was the Equal Protection Clause of our Constitution.
    Judge Alito. Yes, they did, and that was, I think--of 
course, we fought a Civil War to get the 14th Amendment and to 
adopt the constitutional principle of equality for people of 
all races.
    Senator Durbin. The reason I ask you about those two cases 
is that neither of those cases referred to explicit language in 
the Constitution. Those cases were based on concepts of 
equality and liberty within our Constitution, and the Griswold 
case took that concept of liberty and said it means privacy, 
though the word is not in our Constitution, and the Brown v. 
Board of Education case took the concept of equality, equal 
protection, and said, that means public education will not be 
segregated. I raise that because I listened carefully as 
Senator Schumer asked you yesterday about Roe v. Wade, and I 
could not understand your conclusion. You conceded the fact 
that we have free speech because it is explicit in our 
Constitution, a protected constitutional right, and yet, when 
Senator Schumer asked you repeatedly, ``Do you find that Roe v. 
Wade established and recognized a constitutional protection for 
a woman to make this most private decision,'' you would not 
answer. You would not give a direct answer. On two Supreme 
Court cases, Griswold and Brown now, you have said, just as we 
started this hearing, that you believe there is a 
constitutional basis for this protection and for this right, 
and yet when it came to Roe v. Wade you would not.
    Most of us are troubled by this 1985 memo. You said 
yesterday you would have an open mind when it came to this 
issue. I am sorry to report that your memo seeking a job in the 
Reagan administration does not evidence an open mind. It 
evidences a mind that, sadly, is closed in some areas. 
Yesterday when you were asked about one man/one vote, you 
clarified it, said those were my views then, they are not my 
views now. When Senator Kohl asked you about the power and 
authority of elected branches as opposed to others, no, you 
said, I want to clarify that is not my view now.
    And yet, when we have tried to press you on this critical 
statement that you made in that application, a statement which 
was made by you that said the Constitution does not protect the 
right to an abortion, you have been unwilling to distance 
yourself and to say that you disagree with that. I think this 
is critically important, because as far as I am concerned, 
Judge Alito, we have to rely on the Supreme Court to protect 
our rights and freedoms, especially our right to privacy. For 
you to say that you are for Griswold, you accept the 
constitutional basis for Griswold, but you cannot bring 
yourself to say there is a constitutional basis for the right 
of a woman's privacy when she is making a tragic, painful 
decision about continuing a pregnancy that may risk her health 
or her life, I am troubled by that.
    Why can you say unequivocally that you find constitutional 
support for Griswold, unequivocally you find constitutional 
support for Brown, but cannot bring yourself to say that you 
find constitutional support for a woman's right to choose?
    Judge Alito. Brown v. Board of Education, as you pointed 
out, is based on the Equal Protection Clause of the 14th 
Amendment, and the 14th Amendment, of course, was adopted and 
ratified after the Civil War. It talks about equality. It talks 
about equal protection of the law, and the principle that was 
finally recognized in Brown v. Board of Education, after nearly 
a century of misapplication of the 14th Amendment, is that 
denying people the opportunity, people of a particular race the 
opportunity to attend schools, or for that matter, to make use 
of other public facilities that are open to people of a 
different race, denies them equality. They're not treated the 
same way. An African-American is not treated the same way as a 
white person when they're treated that way, so they're denied 
equality, and that is based squarely on the language of the 
Equal Protection Clause and on the principle, the principle 
that was--the magnificent principle that emerged from this 
great struggle that is embodied in the Equal Protection Clause.
    Griswold concerned the marital right to privacy, and when 
the decision was handed down, it was written by Justice 
Douglas, and he based that on his theories of--his theory of 
emanations and penumbras from various constitutional 
provisions, the Ninth Amendment and the Fourth Amendment, and a 
variety of others, but it has been understood in later cases as 
based on the Due Process Clause of the 14th Amendment, which 
says that no person shall be denied due process--shall be 
denied liberty without due process of law. And that's my 
understanding of it.
    And the issue that was involved in Griswold, the possession 
of contraceptives by married people, is not an issue that is 
likely to come before the courts again. It's not likely to come 
before the Third Circuit, it's not likely to come before the 
Supreme Court, so I feel an ability to comment, a greater 
ability to comment on that than I do on an issue that is 
involved in litigation.
    And what I have said about Roe is that if the issue were to 
come before me if I am confirmed, and I'm on the Supreme Court, 
and the issue comes up, the first step in the analysis for me 
would be the issue of stare decisis, and that would be very 
important. The things that I said in the 1985 memo were a true 
expression of my views at the time from my vantage point as an 
attorney in the Solicitor General's Office, but that was 20 
years ago, and a great deal has happened in the case law since 
then. Thornburgh was decided, and then Webster and then Casey 
and a number of other decisions. So the stare decisis analysis 
would have to take account of that entire line of case law.
    And then if I got beyond that, I would approach the 
question--and of course in Casey, that was the beginning and 
the ending point of the analysis in the joint opinion. If I 
were to get beyond that, I would approach that question the way 
I approach every legal issue that I approach as a judge, and 
that is to approach it with an open mind, and to go through the 
whole judicial process which is designed--and I believe 
strongly in it--to achieve good results, to achieve good 
decisionmaking.
    Senator Durbin. This is what troubles me, that you do not 
see Roe as a natural extension of Griswold, that you do not see 
the privacy rights of Griswold ended by the decision in Roe, 
that you decided to create categories of cases that have been 
decided by the Court that you will concede have constitutional 
protection, but you have left in question the future of Roe v. 
Wade.
    Yesterday, Senator Specter asked you, as he asked John 
Roberts before you, a series of questions about whether or not 
you accept the concept that this is somehow a precedent that we 
can rely on, that is embedded in our experience, that if it 
were changed it would call into question the legitimacy of the 
Court, and time and time again he brought you to the edge, 
hoping that you would agree, and rarely if ever did you 
acknowledge that you would agree. You made the most general 
statement that you believe reliance was part of stare decisis.
    But let me just ask you this. John Roberts said that Roe v. 
Wade is the settled law of the land. Do you believe it is the 
settled law of the land?
    Judge Alito. Roe v. Wade is an important precedent of the 
Supreme Court. It was decided in 1973, so it has been on the 
books for a long time. It has been challenged on a number of 
occasions, and I discussed those yesterday, and the Supreme 
Court has reaffirmed the decision, sometimes on the merits, 
sometimes in Casey based on stare decisis, and I think that 
when a decision is challenged and it is reaffirmed that 
strengthens its value as stare decisis for at least two 
reasons. First of all, the more often a decision is reaffirmed, 
the more people tend to rely on it, and second, I think stare 
decisis reflects the view that there is wisdom embedded in 
decisions that have been made by prior Justices who take the 
same oath and are scholars and are conscientious, and when they 
examine a question and they reach a conclusion, I think that's 
entitled to considerable respect, and of course, the more times 
that happens, the more respect the decision is entitled to, and 
that's my view of that. So it is a very important precedent 
that--
    Senator Durbin. Is it the settled law of the land?
    Judge Alito. It is a--if settled means that it can't be re-
examined, then that's one thing. If settled means that it is a 
precedent that is entitled to respect as stare decisis, and all 
of the factors that I've mentioned come into play, including 
the reaffirmation and all of that, then it is a precedent that 
is protected, entitled to respect under the doctrine of stare 
decisis in that way.
    Senator Durbin. How do you see it?
    Judge Alito. I have explained, Senator, as best I can how I 
see it. It is a precedent that has now been on the books for 
several decades. It has been challenged. It has been 
reaffirmed, but it is an issue that is involved in litigation 
now at all levels. There is an abortion case before the Supreme 
Court this term. There are abortion cases in the lower courts. 
I've sat on three of them on the Court of Appeals for the Third 
Circuit. I'm sure there are others in other courts of appeals, 
or working their way toward the courts of appeals right now, so 
it's an issue that is involved in a considerable amount of 
litigation that is going on.
    Senator Durbin. I would say, Judge Alito, this is a painful 
issue for most of us. It is a difficult issue for most of us. 
The act of abortion itself is many times a hard decision, a sad 
decision, a tragic decision. I believe that for 30 years we 
have tried to strike a balance in this country to say it is a 
legal procedure, but it should be discouraged. It should be 
legal but rare, and we should try to find ways to reduce the 
incidence of abortion. But as I listen to the way that you have 
answered this question this morning and yesterday, and the fact 
that you have refused to refute that statement in the 1985 job 
application, I am concerned. I am concerned that many people 
will leave this hearing with a question as to whether or not 
you could be the deciding vote that would eliminate the 
legality of abortion, that would make it illegal in this 
country, would criminalize the conduct of women who are seeking 
to terminate pregnancies for fear of their lives and the 
conduct of doctors who help them. That is very troubling, 
particularly because you have stated that you are committed to 
this right of privacy.
    If I could move to another issue that came up yesterday, I 
did not understand your answer to one question and I want to 
clarify it. This so-called Concerned Alumni of Princeton. You 
noted in your application for a job with the Department of 
Justice you belonged to two organizations, the Federalist 
Society and the Concerned Alumni of Princeton. I will not get 
into Federalist Society, because every time I say those words 
they go into a rage that I am somehow guilty of McCarthy-like 
tactics, asking who are these people in the Federalist Society? 
I will not touch it.
    Let me just go to the Concerned Alumni of Princeton. I did 
not understand your answer. Your answer said something about 
ROTC being discontinued at Princeton University. I know you 
were involved in ROTC. I am told that by the time you filled 
out this application, ROTC had been restored. I do not believe 
you were suggesting that bringing more women and minorities to 
Princeton would somehow jeopardize the future of ROTC. I do not 
know that that is the case.
    But there is a woman named Diane Weeks, who was a colleague 
of yours in the New Jersey U.S. Attorney's Office, and she said 
that she was troubled by your membership in this group. She 
said you had a first-rate legal mind, but here is what she went 
on to say. ``When I saw Concerned Alumni of Princeton on that 
1985 job application, I was flabbergasted,'' she said. ``I was 
totally stunned. I couldn't believe it. CAP made it clear to 
women like me that we were not wanted on campus, and he is 
touting his membership in this group in 1985, 13 years after he 
graduated? He's not a young man by this point,'' she said, 
``and I don't buy for a second that he was doing it just to get 
a job. Membership in CAP gives a good sense of what someone's 
personal beliefs are. I'm very troubled by this, and if I were 
in the Senate, I would want some answers.''
    I don't think explaining discontinuing ROTC at Princeton is 
an answer. What is your answer? Why did you include this 
controversial organization as one of your qualifications for 
being part of the Reagan administration? As you said, with your 
background, with your immigrant background and the fact that 
Princeton had just started allowing people of your background 
as students, how could you identify with a group that would 
discriminate against women and minorities?
    Judge Alito. Well, Diane Weeks was an Assistant U.S. 
Attorney in the U.S. Attorney's Office in New Jersey, and 
somebody that I hired, and one of many women whom I hired when 
I was U.S. Attorney, and I think that illustrates my attitude 
toward equality for women.
    I've said what I can say about what I can recall about this 
group, Senator, which is virtually nothing. I put it down on 
the `85 form as a group in which I was a member. I didn't say I 
was anything more than a member. And since I put it down, I'm 
sure that I was a member at the time, but I'm also sure--and I 
have racked my memory on this--that if I had participated in 
the group in any active way, if I had attended meetings or done 
anything else substantial in connection with this group, I 
would remember it, and if I had renewed my membership, for 
example, over a period of years, I'm sure I would remember 
that. So that's the best I can reconstruct as to what happened 
with this group.
    I mentioned, in wracking my memory about this, I said, what 
would it have been, what could it have been about the 
administration of Princeton that would have caused me to sign 
up to be a member of this group around the time of this 
application? And I don't have a specific recollection, but I do 
know that the issue of ROTC has bothered me for a long period 
of time. The expulsion of the units at the time when I was a 
student there, struck me as a very bad thing for Princeton to 
do.
    Senator Durbin. Do women and minorities have anything to do 
with that?
    Judge Alito. No, and I did not join this group, I'm quite 
confident, because of any attitude toward women or minorities. 
What has bothered me about--what bothered me about the 
Princeton administration over a period of time was the 
treatment of ROTC, and after the unit was brought back, I know 
there's been a continuing controversy over a period of years 
about whether it would be kept on campus, whether in any way 
this was demeaning to the university to have an ROTC unit on 
campus, whether students who were enrolled in ROTC could 
receive credit for the courses, whether the members of--whether 
the ROTC instructors could be considered in any way a part of 
the faculty. All of this bothered me, and it is my recollection 
that it continued over a period of time.
    Senator Durbin. Let me ask you, if I might, to reflect on a 
couple other things. You are a Bruce Springsteen fan?
    Judge Alito. I am to some degree, yes.
    Senator Durbin. I guess most people in New Jersey would be, 
they should be.
    Judge Alito. There was the movement sometime ago--we don't 
have an official State song, and there was a movement to make 
``Born to Run'' our official State song, but it didn't quite 
make it.
    Senator Durbin. We will stick with Lincoln in Illinois, but 
I can understand your commitment to Bruce Springsteen. They 
once asked him, ``How do you come up with the songs that you 
write and the characters that are in them?'' And he said, ``I 
have a familiarity with the crushing hand of fate.'' It is a 
great line.
    I want to ask you about the crushing hand of fate in 
several of your decisions. Riley v. Taylor. This cas involved 
the murder conviction of an African-American defendant, and the 
question was raised as to whether he had a fair trial, and the 
people who argued in his defense said that when we take a look 
at the various people who were involved in these jury pools in 
the murder cases here, we find that the local prosecutors had 
eliminated all the African-Americans in four murder trials that 
had taken place during the year that led up to his trial. And 
they raised the question in his case whether there had been a 
conscious effort to eliminate African-American jurors in this 
case involving an African-American defendant.
    And you dismissed the statistical evidence of these all-
white juries, and you made a statement that said the 
significance of an all-white jury was as relevant as the fact 
that five of the past six Presidents of the United States have 
been left-handed.
    That is a troubling analogy, and I am not the only one 
troubled. Your colleagues on the Third Circuit were troubled as 
well. Here is what they said: ``The dissent''--your dissent--
``has overlooked the obvious fact that there is no provision in 
the Constitution that protects persons from discrimination 
based on whether they are right-handed or left-handed. To 
suggest any comparability to striking of jurors based on their 
race is to minimize the history of discrimination against 
prospective black jurors and black defendants.''
    Why did you use that analogy that apparently is so 
inappropriate?
    Judge Alito. Well, the analogy went to the issue of 
statistics and the use and misuse of statistics and the fact 
that statistics can be quite misleading. Statistics are very 
powerful, but statistics can also be very misleading, and 
that's what that was referring to. There's a whole--I mean, 
statistics is a branch of mathematics, and there are ways to 
analyze statistics so that you draw sound conclusions from them 
and avoid erroneous conclusions from them. Sometimes when you 
see a pattern, it's the result of a cause, and sometimes when 
you see something that looks like it might be a pattern, it's 
the result of chance.
    Riley was a very, very difficult case, and I can tell you I 
struggled over that case because the issue of racial 
discrimination in the criminal justice system is an issue of 
enormous importance. Obviously, it's very important for the 
defendant. It's important for the society so that everybody 
knows that everyone in this country is treated equally 
regardless of race. And it's important for law enforcement, 
because I know from years as a prosecutor that nothing is a 
greater poison for law enforcement than even the slightest hint 
of unfairness.
    The issue of racial discrimination in the jury had to be 
viewed by our court and by me under the habeas corpus statute 
that Congress passed, and that gave us an important role to 
play, but a very limited role. The Pennsylvania--and what the 
habeas corpus statute is that if the State courts have decided 
a question on the merits and they've applied the correct legal 
standard, the correct constitutional standard, we can't 
authorize a granting of a writ of habeas corpus unless they 
were unreasonable. It's not enough for us to say, ``We don't 
agree with it.'' We have to say, ``You were unreasonable.''
    Now, I think seven members of the Pennsylvania judiciary--
well, I think there were more. There was the judge who heard 
the State habeas case and the Pennsylvania Supreme Court, and 
the Pennsylvania Supreme Court, as I recall, was unanimous on 
the issue that there hadn't been racial discrimination in the 
selection of the jury in the case.
    Then the case came up to us, and the issue was whether the 
State courts were unreasonable in finding that the particular 
peremptory challenges at issue in this case were not based on 
race. And it was a tough question, but I didn't see how we 
could overturn what they had done under the habeas standard. 
Now--
    Senator Durbin. I would just say, Judge, in many of these 
tough questions as I read through your cases, you end up ruling 
in favor of established institutions and against individuals. 
Let me tell you another one, Pirolli v. World Flavors. Remember 
this case? A mentally retarded individual, Kenneth Pirolli, 
physically harassed at his workplace, subjected to a hostile, 
abusive work environment, and sexually assaulted by his 
coworkers. According to his deposition testimony, he said they 
attempted to rape him.
    I could read to you what is in that record here, but it is 
so graphic and it tells in such detail the sexual assault that 
he was subjected to that I am not going to read it into the 
record. But I bet you remember it.
    And when it came to whether or not he should have a trial, 
as to whether he was entitled to bring his case before a jury, 
you said no, stand by the summary judgment, don't take this to 
a jury. You dissented from the majority position here. And the 
reason you dissented was, I think, significant. It wasn't about 
Kenneth Pirolli or the merits of his case. It was about the 
conduct and efforts of his lawyer.
    You noted the fact that his lawyer had not adequately 
provided citations in his brief to places in the record 
describing the harassment. So you held Kenneth Pirolli 
responsible for the fact that his lawyer didn't do a good job--
at least in your view--and denied him his day in court. How do 
you explain that crushing hand of fate on this man who was a 
victim of sexual harassment?
    Judge Alito. Well, Senator, the district court thought that 
the defendant in that case was entitled to summary--was 
entitled to summary judgment, and so I think that says 
something about the facts of the case and whether it was a 
particularly strong case.
    There's a very important principle involved in the 
appellate practice, and I think it goes with the idea of 
judicial self-restraint. It is that certain things are to be 
decided at certain levels in the court system, and that 
requires that parties raise issues in the trial court; and that 
if they do not raise the issue in the trial court, then absent 
some extraordinary circumstances, they shouldn't be able to 
raise the issue on appeal. And that was the principle there.
    Now, this was not a criminal case. In a criminal case, 
there's a constitutional right to counsel, and so a person can 
claim ineffective assistance of counsel. And we treat that 
issue differently in criminal cases than we do in civil cases.
    Senator Durbin. I would just say that you are arguing on 
the merits of the district court decision. Your statement in 
dissent criticized his lawyer for the brief that they presented 
to your court. That seems to me to be an unfair treatment of a 
man who I think deserved a day in court.
    Let me ask you about another group looking for a day in 
court, the RNS Services v. Secretary of Labor case that I 
referred to in my opening statement. It is a timely case. It is 
about mine safety. You know what happened in West Virginia a 
few days ago and yesterday in the State of Kentucky where there 
are serious questions being raised about whether there is 
adequate mine safety. And in this case, there was a question as 
to whether or not the Federal and State mine safety provisions 
applied to a company in a certain activity. And you concluded 
they did not apply. You concluded that you would narrowly 
construe the statute passed by Congress, and in construing it 
in that way, that the requirements of inspecting this mine 
location would not be subject to Federal law.
    Again, you dissented and you ruled on the side of the 
company, on the side of the established institution, against 
the coal miners and against the workers in this circumstance. 
It is a recurring pattern. The crushing hand of fate here seems 
to always come down against the workers and the consumers and 
in favor of these established institutions and corporations.
    How would you explain the fact that you would so narrowly 
construe a statute when you knew that the lives and safety of 
coal miners were at stake?
    Judge Alito. The facility that was involved in that case 
was not a mine as a lay person would think of a mine. It wasn't 
an underground facility. It wasn't like the facility in West 
Virginia where the terrible accident occurred a few days ago. 
It was basically a pile of coal that was being loaded onto 
trucks to be transported to another place. The definition of a 
mine under the Federal law is very broad, and it's not limited 
to what ordinary people would think of as a mine. And there was 
an argument that this facility, which, as I said, as I recall, 
was basically a big pile of coal on top of the ground and coal 
was being hauled away to a cogeneration facility. Is that a 
mine? An ordinary person would look at that and say that's not 
a mine, that's a pile of coal.
    But the issue in the case was the kind of technical issue 
of interpretation that we get all the time, and the question 
was is this a mine in the sense of the law, and I thought it 
was not a mine in the sense of the law.
    Now, that conclusion, I don't believe, would mean that this 
facility would be spared safety regulation at either the 
Federal or local level. It's been a long time since I worked on 
that case, but I would imagine that if the facility is not 
governed by the Federal mining laws, it would be covered by 
OSHA, by the Occupational Safety and Health Administration, and 
perhaps by State law. So the issue would not be whether this 
facility would be allowed, which was not a mine in the ordinary 
sense, would be allowed to operate in an unsafe fashion. It was 
which body of laws and regulations would govern the facility.
    Senator Durbin. Judge, I would say that your opinion did 
not prevail. The two other judges, both Reagan appointees, who 
saw this case on the side of the workers, understood that the 
wording of the law is as follows: ``Congress declares that the 
first priority and concern of all in the coal or other mining 
industry must be the safety and health of its most precious 
resource--the miner.'' And instead of taking the obvious 
interpretation that these were people working in the mining 
industry, even if they were outside of the underground mine and 
the danger that it presents, you drew this statute as narrowly 
as you could--construed it as narrowly as you could to take the 
company position here that the Federal Mine Safety and Health 
Administration did not have jurisdiction.
    I find this as a recurring pattern, and it raises a 
question in my mind whether the average person, the 
dispossessed person, the poor person who finally had their day 
in court and may make it all the way through the process to the 
Supreme Court, are going to be subject to the crushing hand of 
fate when it comes to your decisions. They have been many times 
at the Third Circuit, and that is a concern which I will 
continue when we have further questions in the next round.
    Thank you, Mr. Chairman.
    Chairman Specter. Do you care to respond, Judge Alito?
    Judge Alito. Yes, could I just say a couple of words? That 
case was a case of statutory interpretation and applying the 
statute, and that's how I thought it came out. There have been 
many other cases that I have worked on on the court of appeals 
where I have come out in favor of the small person who was 
challenging a big institution, and I could mention a number of 
them.
    Let me just mention Shore v. Regional High School because I 
think it has some relation to the Pirolli case, which you 
mentioned. This was a case in which a high school student had 
been bullied unmercifully by other students in his school 
because of their perception of his sexual orientation. He had 
been bullied to the point of attempting to commit suicide, and 
his parents wanted to enroll him at an adjacent public high 
school, and the school board said, no, you can't do that. And I 
wrote an opinion upholding their right to have him placed in a 
safe school in an adjacent municipality.
    That is just one example, but all of these cases involve 
what judges are supposed to do, which is to take the law and 
apply it to the particular facts of the case that is before 
them.
    Chairman Specter. Thank you very much, Judge Alito.
    Senator Brownback?
    Senator Brownback. Thank you very much, Mr. Chairman.
    Good morning, Judge Alito, Mrs. Alito, family members. Good 
to have you here.
    I have got a number of areas I would like to ask you 
questions about, and I am hopeful we can get through them and 
maybe reduce the need of time in a second round, which would 
probably be pleasing to your ears.
    I want to first go at this area, because it seems to keep 
coming up, that I think is really not applicable and not 
reflective of your record that you always take the side of the 
big institution and against the little guy, as you just stated. 
But then I want to get into a number of areas of constitutional 
law, some of which you have written on, religious freedom type 
cases, takings cases. I would like to get into some of these 
areas.
    But I want to enter into the record, Mr. Chairman, a letter 
from a former law clerk of yours, David Walk, dated January 6, 
2006. David worked with you in the New Jersey U.S. Attorney's 
Office. I don't know if you remember David or not.
    Judge Alito. I do. He was a fine--
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Brownback. Thank you.
    He is a lifelong Democrat, former member of the ACLU, and 
talks about how fair you were to everybody's rights. But then 
he cites the case of Franklin Igbonwa. This was a Nigerian set 
to be deported for drug dealing who had testified against other 
Nigerian drug dealers and was fearful of being deported, that 
he would be killed once back in Nigeria. The other two judges 
said his case--he shouldn't be believed on the face of it, and 
you said he should and that the trial court should have given 
more deference to this Nigerian to be deported. This was 
somebody that David Walk represented. Talk about a little guy 
in a case, and that is one that is cited in this particular 
record and letter that I would hope my colleague from Illinois 
could take a chance at, because it is a legitimate point of 
view. And saying, well, it looks like you always take one side 
or the other, here is where another side was taken.
    And then here is a letter from another individual who 
worked with you, Cathy Fleming, lifelong Democrat, president-
elect, National Women's Bar Association, gives an unqualified 
endorsement of you. She says, ``By providing my credentials as 
an outspoken women's rights advocate and liberal-minded 
criminal defense attorney, I hope you will appreciate the 
significance of my unqualified and enthusiastic recommendation 
of Sam Alito for the Supreme Court.''
    I think one can kind of look in the past and try to say, 
well, OK, there is this problem, there is that, but then when 
people that know you well put their names to letters saying 
differently, I think that's also something we should consider, 
and I would ask that that letter be put into the record as 
well.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Brownback. Thank you.
    Judge Alito, the Supreme Court has gotten a number of 
things wrong at times, too. That would be correct, and the 
answer when the Court gets things wrong is to overturn the 
case. That is the way it works. Isn't that correct?
    Judge Alito. Well, when the Court gets something wrong and 
there's a prior precedent, then you have to analyze the 
doctrine of stare decisis. It is an important doctrine, and I 
have said a lot about it, but--
    Senator Brownback. Wait, let me just ask you, was Plessy 
wrong, Plessy v. Ferguson?
    Judge Alito. Plessy was certainly wrong.
    Senator Brownback. OK, and you have gone through this. 
Brown v. Board of Education, which is in my hometown of Topeka, 
Kansas. I was there last year at the dedication of the 
schoolhouse. Fifty years ago, that overturned Plessy. Plessy 
had stood on the books since 1896. I don't know if you knew the 
number. And I have got a chart up here. It was depended upon by 
a number of people for a long period of time. You have got it 
sitting on the books for 60 years, twice the length of time of 
Roe v. Wade. You have got these number of cases that considered 
Plessy and upheld Plessy to the dependency. And yet Brown comes 
along, 1950s case, poor little girl has to walk by the all-
white school to go to the black school in Topeka, Kansas. And 
the Court looks at this and they say unanimously that is just 
not right.
    Now, stare decisis would say in the Brown case you should 
uphold Plessy. Is that correct?
    Judge Alito. It certainly would be a factor that you would 
consider in determining whether to overrule it.
    Senator Brownback. But obviously--
    Judge Alito. A doctrine that you would consider.
    Senator Brownback. Obviously, Brown over turned it, and 
thank goodness it did. Correct?
    Judge Alito. Certainly.
    Senator Brownback. It overturned all these super duper 
precedents that had been depended upon in this case because the 
Court got it wrong in Plessy. Is that correct?
    Judge Alito. The Court certainly got it wrong in Plessy, 
and it got it spectacularly wrong in Plessy, and it took a long 
time for that erroneous decision to be overruled.
    One of things I think that people should have understood is 
that separate facilities, even if they were absolutely equal in 
every respect, even if they were identical, could never give 
people equal treatment under the law.
    Senator Brownback. They don't.
    Judge Alito. I think they should have recognized that. But 
one of the things that was illustrated in those cases--and 
Sweatt v. Painter, the last one on the list brought that out--
was that, in fact, the facilities, the supposedly equal 
facilities were never equal, and the continuing series of 
litigation that was brought by the NAACP to challenge racial 
discrimination illustrated--if the illustration was needed, the 
litigation illustrated that, in fact, the facilities that were 
supposedly equal were not equal. And that was an important 
factor, I think, in leading to the decision in Brown v. Board 
of Education
    Senator Brownback. I want to give you another number, and 
that is, in over 200 other cases, the Court has revisited and 
revised earlier judgments. In other words, in some portion or 
in all of the cases, the Court got it wrong in some 200 cases. 
And thank goodness the Court is willing to review various 
cases.
    I want to give you an example of a couple, though, that the 
Court hasn't reviewed yet that I think are spectacularly wrong. 
The 1927 case of Buck v. Bell, I don't know if you are familiar 
with that case. The Court examined a Virginia statute that 
permitted the sterilization of the mentally impaired. Carrie 
Buck, a patient at the so-called Virginia State Colony for 
Epileptics and Feeble Minded, was scheduled to be sterilized 
after doctors alleged she was a genetic threat to the 
population due to her diminished mental capacity. Buck's 
guardian challenged the decision to have Carrie sterilized all 
the way to the Supreme Court, but in an 8-1 decision, the Court 
found that it was in the State's interest to have her 
sterilized.
    The majority opinion written by Justice Oliver Wendell 
Holmes said, ``We have seen more than once that the public 
welfare may call upon the best citizens for their lives. It 
would be strange if it could not call upon those who already 
sap the strength of the State for these lesser sacrifices, 
often not felt to be such by those concerned, in order to 
prevent our being swamped with incompetence.''
    Clearly, some precedents are undeserving of respect because 
they are repugnant to the Constitution. Isn't Plessy repugnant 
to the Constitution?
    Judge Alito. It certainly was repugnant to the Equal 
Protection Clause.
    Senator Brownback. And the vision of human dignity, isn't 
Buck and those sort of statements by Oliver Wendell Holmes 
repugnant to the Constitution?
    Judge Alito. I think they are repugnant to the traditions 
of our country. I don't think there is any question about that.
    Senator Brownback. I will give you another case, the 
Korematsu v. United States case, a 1944 case. World War II 
broke out following Japanese attacks on Pearl Harbor. Feelings 
spread that Japanese-Americans, both naturalized and those born 
in the United States, might not be loyal to the United States 
and should be removed from the West Coast. So great was the 
fear that even the esteemed writer Walter Lippmann stated that, 
``Nobody's constitutional rights include the right to reside 
and do business on a battlefield. There is plenty of room 
elsewhere for him to exercise his rights.''
    President Roosevelt signed an Executive order removing 
them. Korematsu contested the constitutionality, Fred Korematsu 
did, of his internment. In Korematsu v. the United States, the 
Supreme Court held that military necessity justified the 
internment program and that Fred Korematsu had no protection 
against relocation under the Constitution.
    Of course, that was later overturned--excuse me, that was 
never overturned. In 1948, Congress enacted the Japanese 
American Evacuation Claims Act to provide some monetary 
compensation. In 1980, Congress again revisited the case. In 
1988, Congress passed legislation apologizing for the 
internment and awarded each survivor $20,000. In 1999, Fred 
Korematsu was awarded the Presidential Medal of Freedom, the 
highest civilian honor that anyone can receive. Justice has not 
been done because Korematsu remains on the books. It is still 
on the books.
    Roe v. Wade. You have had every question on that, but I 
want to point out its difficulty. My colleagues on the other 
side look at this as completely settled law, but let's see what 
the legal experts say about how settled it is.
    Laurence Tribe, who will be here to testify, I believe, 
probably against you in a little bit. Let's see what he says, a 
professor of law at Harvard: ``One of the most curious things 
about Roe is that, behind its own verbal smokescreen, the 
substantive judgment on which it rests is nowhere to be 
found.'' Settled law? Super duper precedents? Laurence Tribe 
has some questions about it.
    Justice Ruth Bader Ginsburg: ``Roe, I believe, would have 
been more acceptable as a judicial decision if it had not gone 
beyond a ruling on the extreme statute before the Court. Heavy-
handed judicial intervention was difficult to justify and 
appears to have provoked, not resolved, conflict.'' Provoked, 
not resolved, conflict--one of your potential colleagues says.
    Edward Lazarus, former clerk to Chief Justice Harry 
Blackmun, who wrote Roe: ``As a matter of constitutional 
interpretation and judicial method, Roe borders on the 
indefensible. I say this as someone utterly committed to the 
right to choose, as someone who believes such a right was 
grounded elsewhere in the Constitution, instead of where Roe 
placed it, and as someone who loved Roe's author like a 
grandfather.'' Settled law? Edward Lazarus has some questions 
about it being settled.
    Let's look at John Hart Ely, former Dean of Stanford Law 
School, excellent law school in the country, one of the top law 
schools in the country: Roe v. Wade ``is not constitutional law 
and gives almost no sense of an obligation to try to be. What 
is frightening about Roe is that this super-protected right is 
not inferable from the language of the Constitution, the 
Framers' thinking respecting the specific problem in issue, any 
general value derivable from the provisions they included, or 
the Nation's governmental structure.'' John Hart Ely. Do you 
think he thinks Roe is settled law? Not constitutional and 
gives no sense of an obligation to try to be.
    Alan Dershowitz, professor of law, Harvard Law School, one 
of the top law schools in the country. It is not Princeton, 
but... Roe v. Wade and Bush v. Gore ``represent opposite sides 
of the same currency of judicial activism in areas more 
appropriately left to the political process. Judges have no 
special competency, qualifications, or mandate to decide 
between equally compelling moral claims, as in the abortion 
controversy. Clear governing constitutional principles are not 
present in either case.'' Settled law? Super duper precedents?
    I think there are places where the Court gets it wrong, and 
hopefully they will continue to be willing to revisit it.
    Now I want to look at a couple of areas of law in addition 
to this. Your view of the Constitution--and yesterday you hit 
at this, I thought, on some of the edges, but I just want to 
get your thoughts of how you view the Constitution, how you 
would review it. There are these different schools of thought 
on this of strict constructionist, living document, 
originalist, and there are several others that float around out 
there. How do you generally look at the Constitution? And I am 
aware yesterday you were saying that some provisions are very 
clear and some are not, and you seem to apply a different set 
of viewpoints on those of the Constitution. Could you 
articulate your view of how you look and interpret the 
Constitution?
    Judge Alito. First of all, Senator, I think the 
Constitution means something, and I don't think it means 
whatever I might want it to mean or whatever any other member 
of the judiciary might want it to mean. It has its own meaning, 
and it is the job of a judge, the job of a Supreme Court 
Justice, to interpret the Constitution, not distort the 
Constitution, not add to the Constitution or subtract from the 
Constitution.
    In interpreting the Constitution, I think we should proceed 
in the way we proceed in interpreting other important legal 
authorities. In interpreting statutes, for example, I think we 
should look to the text of the Constitution and we should look 
to the meaning that someone would have taken from the text of 
the Constitution at the time of its adoption. But I think we 
have to recognize that the Constitution is very different from 
statutes in some important respects. Statutes are often very 
detailed, and they generally don't exist without revision for 
very long periods of time. The Constitution was adopted to 
endure throughout the history of our country, and considering 
how long our country has existed, it's been amended relatively 
few times. And the magic of that, I think, is that it sets out 
a basic structure for our Government and protects fundamental 
rights. But on a number of very important issues, I think the 
Framers recognized that times would change, new questions would 
come up, and so they didn't purport to adopt a detailed code, 
for example, governing searches and seizures. That was the 
example I gave yesterday, and I will come back to it. They 
could have set out a detailed code of search and seizure. They 
didn't do that. They said that the people are protected against 
unreasonable searches and seizures, and they left it for the 
courts--and, of course, the legislative body can supplement 
this--to apply that principle to the new situations that come 
up.
    Now, when that is done, that doesn't amount to an amendment 
of the Constitution or a changing of the Constitution. It 
amounts to--it involves the application of a constitutional 
principle to the situation at hand.
    Senator Brownback. Let me go to a specific area you have 
written quite a bit about, and that is on religious liberties 
and free exercise. And I have looked at these cases, and this 
is going to be an active area of law in front of the Supreme 
Court. It has been for the last 40 years.
    You wrote the case of ACLU v. Schundler, a Third Circuit 
case, considered--it is an ACLU challenge to religious displays 
erected by Jersey City on the Plaza of City Hall. Jersey City 
for decades had had holiday displays of a menorah and Christmas 
tree. Litigation resulted in permanent pulling of this. The 
city came back and said, OK, if that is not good enough, we 
will put a nativity scene, a menorah, a Christmas tree, Frosty 
the Snowman, Santa Claus, Kwanzaa symbols, and signs explaining 
the display. So, OK, if two is not enough, we will add more 
into it, and they were again challenged by the ACLU. The 
district court found no constitutional violation.
    A panel of the Third Circuit, not including you, reversed 
that decision. The panel found no basis for the demystification 
approach, as they put it, and expressed skepticism as to 
constitutional display.
    On remand, the district court held that there was a 
constitutional violation. The city appealed. You sat on the 
panel that heard that appeal. In a 2-1 decision, you upheld the 
constitutionality of the modified display.
    In your decision, you specifically cited Justice O'Connor 
and two particular issues regarding excessive entanglement with 
religious institutions and Government endorsement or 
disapproval of religion. Because Justice O'Connor used these 
factors to uphold similar displays in prior cases, you applied 
them to your upholding in that case. That is a correct 
interpretation. Is that correct, Judge Alito?
    Judge Alito. Yes, it is, Senator.
    Senator Brownback. Because these are coming up so much in 
front of the Court, are these types of displays, you feel, 
generally constitutionally permissible?
    Judge Alito. Well, this is an area in which the Supreme 
Court has handed down several decisions, and like a lot of 
the--like a number of the issues that the Court has addressed 
under the Establishment Clause, it has drawn some fairly fine 
lines. The first case involving a display of this nature was 
the Pawtucket, Rhode Island, display that was involved in Lynch 
v. Donnelly, and it was a display that was similar to the 
display in Jersey City. It included both religious and secular 
symbols. And they found that that was not a violation.
    Senator Brownback. I want to jump in here because I have 
got several ways I want to. When I read your opinions, what I 
hear you to write is you would rather have a robust public 
square than a naked public square, that you think there is room 
for these sorts of displays in the public square.
    Judge Alito. Well, that was exactly what Jersey City had 
decided in that case, and Jersey City said: We are one of the 
most religiously diverse, ethnically diverse, racially diverse 
communities you will find anywhere in the country. This is 
right across the New York harbor from the Statue of Liberty and 
from Ellis Island, and it is still an entry point for a lot of 
people coming into the country. And so they had--over the 
course of the year, at the appropriate time, they had a 
Christmas display, they had a display of a menorah--on that 
particular year, Hanukkah was early in the month of December, 
so the display, the menorah was up at a different point. They 
had a display--they had celebrations for Muslim festivals, for 
Hindu festivals, for Buddhist festivals, for Latino festivals, 
for festivals concerning the many ethnic groups in the 
community. And their view was that this is the way we should 
show that all of these groups are valuable parts of our 
community and express our embracing of them. And this display, 
they said, reflected that philosophy and applying the 
precedents that the Supreme Court had provided in this area, 
the Pawtucket case and a later case involving a display in 
Pittsburgh, Judge Rendell and I, who were the judges in the 
majority on that case, said this is constitutional, this is 
consistent with the Establishment Clause.
    Senator Brownback. Well, and that is what--as we have had 
this 40 years of cases, I really hope we can have a public 
square that celebrates and not that it has got to be completely 
naked to views, and I appreciate that.
    You wrote in a free exercise case, C.H. v. Olivia, a case 
in which a child sued through his parents for violation of his 
free speech and free exercise rights, when his school removed 
and repositioned a poster he had made of a religious figure 
that was important to him. It was a picture of Jesus. The 
poster was part of an assignment which students were instructed 
to show something for which they were thankful. The district 
court granted judgment on the pleadings in favor of the 
defendant, the school district. The Third Circuit affirmed. You 
dissented in that opinion. Can you elaborate on your reasoning 
in that particular opinion? Do you remember the case?
    Judge Alito. Yes, Senator, I do. Justice O'Connor pointed 
out something that's very critical in this area. She said there 
is a big difference between Government speech endorsing 
religion and private religious speech, and this case--and 
private religious speech can't be discriminated against. It has 
to be treated equally with secular speech. And in this case, 
this involved a student who--and there were two incidents. One 
involved reading. The students in the class were told that if 
they could read at a certain level, they would have--their 
reward would be to be able to read their favorite story to the 
class. And this student satisfied those requirements, and the 
student wanted to read a very simplified version of the story 
of Jacob and Esau to the class. And the teacher said, ``No, you 
can't read that to the class. You can read that privately to me 
off in a corner.''
    And then Thanksgiving was coming along, and the students 
were told, ``Draw a picture of something that you're thankful 
for,'' and I guess the teacher expected they were going to draw 
pictures of football games and turkeys and things like that. 
But this student drew a picture of Jesus and said, ``That's 
what I'm thankful for.'' And the teacher put all the other 
pictures up in the hall, but would not put this student's 
picture up in the hall because of its religious content.
    And that, we found, was a violation of this principle that 
you have to treat religious speech equally with secular speech. 
If you ask a student to say something about a topic, what are 
you thankful for, and the student says something that fits 
within the topic that the student was asked to talk about, then 
you can't discriminate against one kind of speech or another.
    Senator Brownback. I thought it was a very interesting 
stance, and I think appropriate, that you took, and I wanted 
to--obviously very active areas of the law that we have.
    I want to look at the issue of checks and balances on the 
Federal court. It is a very active area here in Congress as a 
lot of people across the country and certainly Members of 
Congress have grown the feeling that we can rule however--we 
can do whatever we want to here, but wait until the Court 
decides, that it is the Court that have moved beyond judicial 
restraint. I asked this of John Roberts, and I asked what is--
the checks and balances on Congress are obvious, the President 
can veto a bill, a court can declare something 
unconstitutional, checks and balances executive branch are 
clear, they can be challenged, their actions, in the court, the 
court can say the President can't do that, we cannot 
appropriate the money from here. We have got checks and 
balances, and people are well known. Any high school government 
student would know that.
    Checks and balances on the Court. When I talked with John 
Roberts about this, he said basically the only check and 
balance is judicial restraint. It is what the Court restrains 
itself in. And yet you have within the Constitution a provision 
that is there that I asked him about that I want to ask you 
about. Article III, Section 2 goes, ``In all cases''--excuse 
me. ``In all the other cases before mentioned, the Supreme 
Court shall have appellate jurisdiction, both as to law and 
fact,'' and then it goes on with this interesting Exceptions 
Clause, ``with such exceptions, and under such regulations as 
the Congress shall make.'' The last phrase known as the 
Exceptions Clause.
    What do you believe is Congress's power to define the 
jurisdiction of the Supreme Court under the Exceptions Clause?
    Judge Alito. Well, the Exceptions Clause obviously gives 
Congress the authority to define the appellate jurisdiction of 
the Supreme Court, and it can provide for various avenues by 
which cases get to the Supreme Court, and that has changed over 
the years.
    There's been a controversy, never resolved, about the exact 
scope of the authority. It came up in Ex Parte McCardle in the 
post-Civil War era, and it has been raised by--it has been 
discussed by scholars in subsequent years, and there are 
several schools of thought in the question about whether it 
would be consistent with the Constitution for Congress to 
eliminate jurisdiction in the Supreme Court over a particular 
type of case, that's an unresolved issue that the scholars have 
addressed, and some argue that that falls within the Exceptions 
Clause, and some argue that it would be inconsistent with other 
provisions of the Constitution.
    Senator Brownback. What I see taking place in this country, 
as the Court gets more and more involved in tough political 
issues, is you are going to be pressing other bodies then to 
say, ``Look, we believe these decisions should be here. We 
believe the issues on the competing interests of an abortion, 
the mother and the child, should be decided by legislative 
bodies,'' but the Court said no. Issue of marriage is coming 
through the court system right now. As the Court keeps getting 
involved in these areas, I think you are going to see these 
sorts of constitutional issues being explored more and more.
    Marriage case I want the take you to because that is making 
its way through the Federal Court. Forty-five of our 50 States 
have deemed marriage being between the union of a man and a 
woman. The State of Nebraska passes a State constitutional 
amendment, 70 percent of the people voting for it, saying that 
marriage is the union of a man and a woman. Yet a Federal judge 
in that case threw out the State constitutional amendment on 
novel constitutional grounds, and it is now making its way up 
through the system. The Congress has passed the Defense of 
Marriage Act, DOMA, passed overwhelmingly, signed into law by 
President Clinton, basically did two things. First establishes 
for purposes of Federal law marriage would be defined as the 
union of a man and a woman, and second, it would provide that 
no State would be forced to recognize a marriage entered into 
in another State. A number of legal scholars believe that this 
second part violates the Full Faith and Credit Clause of the 
Constitution.
    Judge Alito, this case is coming forward, and will probably 
be resolved in the Federal courts if it is not resolved by the 
Congress through constitutional amendment. What is your 
understanding of the meaning of the Full Faith and Credit 
Clause, and does this apply to the institution of marriage 
which has been traditionally an issue and an area left up to 
the States?
    Judge Alito. Well, several constitutional doctrines seem to 
be implicated by the matters that you discussed. The Full Faith 
and Credit Clause in general means that one State must honor 
judgments that are issued by a court of another State, and it's 
an important part of the process. It is an important part of 
the Federal system, so that we don't have worrying decisions in 
different States. It is not my--I have not had cases involving 
this, but there are--the doctrine has a certain, has certain 
boundaries to it. There are exceptions, and it covers certain 
areas and doesn't cover other areas, and a challenge to the 
Defense of Marriage Act under the Full Faith and Credit Clause 
would call into question the precise scope of the doctrine.
    And I believe that scholars have expressed differing views 
about how it would apply in that situation, and that's an issue 
that may well come up within the Federal courts, almost certain 
to do so.
    Senator Brownback. Yes. And I know you cannot express on 
it. One last thing I would like to get into just very briefly 
is the Takings Clause in the Kelo case that was in a 
neighboring circuit to yours, Kelo v. City of New London, where 
private property was taken by a private--another private 
group--private property was taken by a public group and given 
to another private group. Judge O'Connor wrote eloquently in 
her dissent, ``Nothing is to prevent the State from replacing 
any Motel 6 with the Ritz Carlton, or any home with a shopping 
mall, or any farm with a factory now.''
    I just conclude by putting that in front of you, saying 
that this is one that people have relied upon for a long time, 
that you could not take private property to another private 
individual for public use, and I hope that is one that the 
Court will end up reviewing at some point in time.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Brownback.
    Senator Coburn?
    Senator Coburn. Thank you, Mr. Chairman. Good morning, long 
day.
    I would like to put a few things into the record if I may. 
One is just a list of cases where Judge Alito ruled for the 
little guy. There has been a lot made, and here is a list of 
nine cases with specifics where he in fact--one of these I 
think he mentioned, but not the others. And I would like 
unanimous consent to--
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Coburn. Actually, there are 15 cases.
    I also want to go back and quote from somebody who was a 
member of CAP, and this is a Judge Napolitano. He is a 
commentator on one of the news shows. I would like his 
statements put into the record from yesterday, where he 
clarified what CAP was about, and clarified the interest of 
ROTC at Princeton, and the fact that that was one of the 
leading reasons that that organization was formed, so I would 
like for those to be admitted as well.
    As you know, I am not an attorney. Sometimes it is very 
disadvantageous on this panel, but at times it is advantageous. 
I have this little thing that I have to depend on, and I kind 
of read it for what it says. As you talk about stare decisis--
is that mentioned anywhere in here?
    Judge Alito. It is not expressly mentioned in the 
Constitution.
    Senator Coburn. It is actually a procedure of common 
English law, correct?
    Judge Alito. That's its origin, yes.
    Senator Coburn. That is its origin, and we use that as a 
tool for working with the Constitution. Can you recall the 
number of times that precedents have been reversed by the 
Supreme Court?
    Judge Alito. I don't know the exact figure, Senator.
    Senator Coburn. I think it is around 170 some times, 
affecting some 225 cases, I believe. That is close. That may 
not be exactly accurate. So, in fact, it is a tool used to help 
us with the law, but our Founders did not say you have to use 
stare decisis in this, did they?
    Judge Alito. No, they didn't. They conferred the judicial 
power on the judiciary, and I think that contemplated that the 
Federal judiciary would be permitted to proceed with--in 
accordance with fundamental judicial procedures as they had 
been known--
    Senator Coburn. At the time.
    Judge Alito. At the time.
    Senator Coburn. And Article III, section 2 really 
delineates the scope for the courts in this country, and what 
it says is, ``All cases in law and equity arising under this 
Constitution, the laws of the United States and treaties made, 
or which shall be made under their authority.'' So that really 
gives us the scope under Article III, section 2. I was 
interested when Senator Kyl asked you yesterday about foreign 
law. That is something extremely disturbing to a lot of 
Americans, that many on the Supreme Court today will reference 
or pick and choose the foreign law that they want to use to 
help them make a decision to interpret our Constitution, where 
in fact, the oath of office mentions no foreign law. Matter of 
fact it says the obligation is to use the United States law, 
the Constitution and the treaties, and that is exactly what 
Article III, section 2 says. So there is no reference at all to 
foreign law in terms of your obligations or your 
responsibility, and matter of fact, the absence of it would say 
that maybe this ought to be what we use, and the codified law 
of the Congress and the treaties rather than foreign law.
    The question I have for you--and I could not get Judge 
Roberts to answer it because of the conflict that might occur 
afterwards, but I have the feeling that the vast majority of 
Americans do not think it is proper for the Supreme Court to 
use foreign law. I personally believe that that is an 
indication of not good behavior by a Justice, whether it be a 
Justice at a appellate division, or a magistrate, or a Supreme 
Court Justice. I just wondered if you had any comments on that 
comment.
    Judge Alito. Well, I don't think that we should look to 
foreign law to interpret our own Constitution. I agree with you 
that the laws of the United States consist of the Constitution 
and treaties and laws, and I would add regulations that are 
promulgated in accordance with law. And I don't think that it's 
appropriate or useful to look to foreign law in interpreting 
the provisions of our Constitution. I think the Framers would 
be stunned by the idea that the Bill of Rights is to be 
interpreted by taking a poll of the countries of the world. The 
purpose of the Bill of Rights was to give Americans rights that 
were recognized practically nowhere else in the world at the 
time. The Framers did not want Americans to have the rights of 
people in France or the rights of people in Russia, or any of 
the other countries on the continent of Europe at the time. 
They wanted them to have the rights of Americans, and I think 
we should interpret our Constitution--we should interpret our 
Constitution. I don't think it's appropriate to look to foreign 
law.
    I also don't think that it's--I think that it presents a 
host of practical problems that have been pointed out. You have 
to decide which countries you are going to survey, and then it 
is often difficult to understand exactly what you are to make 
of foreign court decisions. All countries don't set up their 
court systems the same way. Foreign courts may have greater 
authority than the courts of the United States. They may be 
given a policymaking role, and therefore, it would be more 
appropriate for them to weigh in on policy issues. When our 
Constitution was being debated, there was a serious proposal to 
have members of the judiciary sit on a council of revision, 
where they would have a policymaking role before legislation 
was passed, and other countries can set up their judiciary in 
that way. So you'd have to understand the jurisdiction and the 
authority of the foreign courts.
    And then sometimes it's misleading to look to just one 
narrow provision of foreign law without considering the larger 
body of law in which it's located. That can be--if you focus 
too narrowly on that, you may distort the big picture, so for 
those reasons, I just don't think that's a useful thing to do.
    Senator Coburn. It actually undermines democracy because 
you get a pick and choose, and the people of this country do 
not get a pick and choose that law, as people from a different 
country. So it actually is a violation of the Constitution, and 
to me, I very strongly and adamantly feel that it violates the 
good behavior, which is mentioned as part of the qualifications 
and the maintenance of that position.
    I am sorry Senator Durbin left. I wanted to razz him a 
little bit. You have taken quite a bit of criticism on what 
things that you have written and said in 1985, but I want to 
put forward, for 45 years Senator Durbin was adamantly pro-
life, and he wrote multiple, multiple letters expressing that 
up until 1989. He is a very strong advocate for the abortion 
stance and a free right to choose, but I think it is important 
that the American people--if he has the ability to change his 
mind on something, something he wrote in 1989, certainly you 
have the ability to say something was ineptly put. This is just 
Senator Durbin, I am teasing him a little bit, but I think it 
is important that people recognize people can change their 
mind. I continue to believe the Supreme Court's decision in Roe 
v. Wade should be reversed. There are other Members that are 
adamantly pro-abortion, pro the destruction of human life today 
that have changed their mind, changed their position. So it is 
hard to be critical of you and on something you had written in 
1985, when many of us have backtracked on things that we have 
said through the years. So I think it puts a little bit of 
perspective into where we are going.
    I want to spend just a minute, if I can, yesterday during 
Senator Feinstein's questioning there was some discussion about 
the Health Exception to any regulations pertaining to abortion. 
And on January 22nd, when Roe was decided, the Court also 
decided Doe v. Bolton, and in that case the Court ruled that a 
woman's right to abortion cannot be limited by the State if 
abortion was sought for reasons of maternal health. As a 
practicing physician, I agree with that. I have actually 
performed abortions on women who were going to die if they did 
not have an abortion, so the choice was somebody alive versus 
losing both.
    The Court defined health as all factors, physical, 
emotional, psychological, familial, and a woman's age relevant 
to the well-being of the patient. This exception effectively 
expanded the right to abortion for any reason through all the 
entire pregnancy. Since that time, States have been trying to 
find ways to effectively regulate abortion without intruding on 
this health exception, but it has proven nearly impossible. The 
absence of knowledge is something that Roe v. Wade, which I 
believe was wrongly decided, has hurt us immensely in this 
country, and the absence of informed consent on abortion has 
hurt us immensely.
    Mr. Chairman, I would like to enter into the record a study 
published, a 35-year longitudinal study, which was just 
released this January from New Zealand, that followed women, 
600 women for 35 years from the time of the abortion, that 
studied the ill health effects of--
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Coburn. I would also like to enter into the record 
a Breast Cancer Institute study and analysis of a Lancet 3/25/
04 article, and also the testimony of Dr. Elizabeth Shadigian, 
University of Michigan, Clinical Associate Professor, 
Department of Obstetrics and Gynecology, as to the 
complications.
    Chairman Specter. All of those documents, without 
objection, will be made a part of the record.
    Senator Coburn. It is amazing what we do not know, and as I 
explained in my opening statement, once we go down a path, the 
complications associated--the rulings that you make have major 
impact. I understand the questions that you cannot answer on 
things that are going to come before us, and I cannot pretend 
to know what is in your heart about those issues. But what I do 
know is you were pretty aggressively approached on positions in 
terms of Justice O'Connor and Executive power. There seemed to 
be a blinding contradiction during some of your questions that 
were presented by my colleagues yesterday that raised concerns 
that you are too close to the Executive and too supportive of 
Executive power. They wanted to be sure that you respect the 
role of the judiciary and are free from the influences of the 
political branches. However, they then argue that you should 
have the same ideology of Justice O'Connor to maintain the 
balance on the Court. I have trouble figuring out how they can 
have it both ways. That is an inherently political desire.
    Is there anything in the Constitution, this little 
document, that says what the ideology ought to be of one 
Supreme Court Justice replacing another one?
    Judge Alito. The Supreme Court simply gives the President 
the authority to nominate Justices of the Supreme Court and 
other Federal judges, and gives Congress the advice and consent 
responsibility, and doesn't go further than that.
    Senator Coburn. And the President, by being elected, the 
only person in this country who is elected by the whole 
country, is given that honor and that privilege as well as that 
responsibility, and then we have the responsibility to advise 
and consent to that; is that correct?
    Judge Alito. That's correct.
    Senator Coburn. But nowhere in the Constitution, nor by 
precedent--matter of fact, the precedents are just exactly the 
opposite of that--is it stated that somebody has to have the 
same philosophy as somebody that is coming off the Court.
    Judge Alito. I think that every Supreme Court Justice is an 
individual, and I think every nominee is an individual, and no 
nominee can ever be a duplicate of someone who retires, and 
particularly when someone retires after such a distinguished 
career and such a historic career as Justice O'Connor. Nobody 
can be expected as a nominee to fit that mold.
    Senator Coburn. So the fact that you have to fit the Sandra 
Day O'Connor mold is really a misapplication of--there is no 
precedent that would say that.
    Judge Alito. The only--if I'm confirmed, I'll be myself. 
I'll be the same person that I was on the Court of Appeals. 
That's the only thing that I can say in answer to that.
    Senator Coburn. Let me repeat some facts that one of my 
colleagues mentioned yesterday. Of the 109 Justices to sit on 
the Supreme Court, nearly half have replaced Justices appointed 
by another political party. President Clinton replaced Justice 
White, who dissented on Roe v. Wade, with Justice Ginsburg, who 
argued for a right to abortion. Justice Ginsburg was, I think, 
three votes against her in the Senate when she was approached, 
and she took it completely opposite, but she was well 
qualified. She had integrity, and she was voted onto the Court 
even though many people knew that her philosophy was very 
different from theirs; is that true?
    Judge Alito. She was--the vote was 90 something to a small 
number. I know that, yes.
    Senator Coburn. A lot of times in these hearings, you do 
not get a chance to say, why would you want to be a Justice of 
the Supreme Court of the United States? Why would you want that 
responsibility? Why do you want to go through this process to 
be able to achieve that position? Can you tell the American 
people why?
    Judge Alito. I think it's a chance to make a contribution. 
I think it's a chance to use whatever talent I have in the most 
productive way that I can think of. There are a lot of things 
that I can't do and a lot of things that I couldn't do very 
well if I was given the assignment of doing them, but I've 
spent most of my career as an appellate attorney. Well, I spent 
most of my career before becoming a judge as an appellate 
attorney and now I've spent 15 years as an appellate judge and 
I think this is what I do best. I think this gives me an 
opportunity to make a contribution to the country and to the 
society, because the Supreme Court has a very important role to 
play and it's important that it do the things that it's 
supposed to do well and I would do my very best to further 
that.
    And it is also important for the Supreme Court, and for 
that matter, all of the Federal courts, to exercise restraint. 
As you were referring to earlier, that has turned out to be the 
principal check on the way the judiciary does its work on a 
day-to-day basis. The judiciary is not checked in its day-to-
day work in the same way as the Congress and the President. The 
Congress can pass a law or pass a bill and the President can 
veto it. One House can pass a bill, the other House may not go 
along. The President has to propose legislation to Congress if 
the President wants legislation. Congress can pass laws that 
the President doesn't like. There are checks and balances that 
are worked out in the ordinary processes of government.
    But when it comes to the judiciary in deciding 
constitutional cases, the judiciary is checked on a daily basis 
primarily by its own discipline, its own self-restraint. And so 
it's important for--the judiciary has these twin 
responsibilities that are in intention at times, doing what it 
is supposed to do and doing those things well and vigorously 
and courageously, if it comes to that, but at the same time, 
constantly monitoring its own activities and asking, are we 
doing what we are supposed to be doing as judges? Are we 
functioning as judges, or are we stepping over the line? Are we 
turning ourselves into legislators? Are we turning ourselves 
into members of the executive branch or administrators? And the 
judiciary has to maintain its independence. That's of critical 
importance, and that's an important part of the role and that 
also has to be informed by this sense of self-restraint.
    Senator Coburn. Thank you. During Judge Roberts's hearing, 
Senator Feinstein tried to get him to talk and speak out of his 
heart and I thought it was a great question so that the 
American people can see your heart. This booklet is designed to 
protect the weak, to give equality to those who might not be 
able to do it themselves, to protect the frail, to make sure 
that there is equal justice under the law. You know, I think at 
times during these hearings you have been unfairly criticized 
or characterized as that you don't care about the less 
fortunate. You don't care about the little guy. You don't care 
about the weak or the innocent. Can you comment just about Sam 
Alito and what he cares about and let us see a little bit of 
your heart and what is important to you and why?
    Judge Alito. Senator, I tried to--in my opening statement, 
I tried to provide a little picture of who I am as a human 
being and how my background and my experiences have shaped me 
and brought me to this point. I don't come from an affluent 
background or a privileged background. My parents were both 
quite poor when they were growing up. I know about their 
experiences, and I didn't experience those things. I don't take 
credit for anything that they did or anything that they 
overcame, but I think that children learn a lot from their 
parents and they learn from what the parents say, but I think 
they learn a lot more from what the parents do and from what 
they take from the stories of their parents' lives.
    And that's why I went into that in my opening statement, 
because when a case comes before me involving, let's say, 
someone who is an immigrant, and we get an awful lot of 
immigration cases and naturalization cases, I can't help but 
think of my own ancestors because it wasn't that long ago when 
they were in that position. And so it's my job to apply the 
law. It's not my job to change the law or to bend the law to 
achieve any results, but I have to, when I look at those cases, 
I have to say to myself, and I do say to myself, this could be 
your grandfather. This could be your grandmother. They were not 
citizens at one time and they were people who came to this 
country.
    When I have cases involving children, I can't help but 
think of my own children and think about my children being 
treated in the way the children may be treated in the case 
that's before me. And that goes down the line. When I get a 
case about discrimination, I have to think about people in my 
own family who suffered discrimination because of their ethnic 
background or because of religion or because of gender, and I 
do take that into account. When I have a case involving someone 
who's been subjected to discrimination because of disability, I 
have to think of people who I've known and admired very greatly 
who had disabilities and I've watched them struggle to overcome 
the barriers that society puts up, often just because it 
doesn't think of what it's doing, the barriers that it puts up 
to them.
    So those are some of the experiences that have shaped me as 
a person.
    Senator Coburn. Thank you. Mr. Chairman, I think I will 
yield back the balance of my time at this time and if I have 
additional questions, I will get them in the next round.
    Chairman Specter. Thank you very much, Senator Coburn.
    We will now proceed to the second round of questioning, 
with each Senator having 20 minutes, and we will take 20 
minutes more and then we will take a break.
    Is it appropriate for the Court to declare Acts of Congress 
unconstitutional because of our, quote, ``method of 
reasoning''? Does the Court have some superior insights on a 
method of reasoning? Is it appropriate for the Court to declare 
Acts of Congress unconstitutional, functioning as a taskmaster 
to make sure that Congress does its homework? There have been a 
series of decisions which have seriously undercut congressional 
power where, in my opinion, the Court has usurped the authority 
of Congress, and this moves into the often-criticized range of 
congressional legislation--judicial legislation and derogation 
of the congressional power.
    We are seeking, Judge Alito, to have an appropriate 
equilibrium in our system and the beauty of the American system 
is that no one has too much power. We call it separation of 
power. Although not specifically mentioned in the Constitution, 
we call it checks and balances. We have looked into the issue 
of tremendous importance. Regrettably, we haven't plumbed it, 
only scratched the surface, but our time is limited on the 
authority of the President under War Powers Article II 
contrasted with Congress's authority to legislate for privacy 
under the Foreign Intelligence Surveillance Act, and I want to 
move into two other analogous areas, Congress versus the Court 
and the Court versus Congress, as Congress has taken away the 
jurisdiction of the Court, notably very recently by stripping 
habeas corpus jurisdiction on detainees.
    When the Congress legislated to protect women against 
violence, the Congress did so with a very expansive record. It 
wasn't like Lopez, which was a revolution where the Court upset 
60 years of congressional power under the Commerce Act, but in 
the case of U.S. v. Morrison involving the legislation to 
protect women against violence, there was a record which 
included gender bias from task forces in 21 States, five 
separate reports. Notwithstanding a, quote, ``mountain of 
evidence,'' as noted by four dissenters, the Court declared the 
Act unconstitutional because of our method of reasoning.
    Now, you are a judge. You may be a Supreme Court Justice. 
Is there something we are missing? Do you judges have some 
method of reasoning which is superior to the method of 
reasoning of the Congress?
    Judge Alito. I think the branches of government are equal 
and everybody, all the officers in all the branches of 
government take an oath to the same Constitution--
    Chairman Specter. Equality on method of reasoning?
    Judge Alito. I would never suggest that judges have 
superior reasoning power than does Congress. I think what the 
Court was getting at when it made that statement in Morrison, 
and yesterday, I looked at something that I had written and 
said that was not well phrased, I think that what the Court was 
getting at there in Morrison was that it was applying a certain 
standard, a certain legal standard as to whether something 
substantially affected commerce, and I think that is what they 
were getting at, but--
    Chairman Specter. It is hard to figure out what they were 
getting at. We do know what they said. They said our method of 
reasoning was defective. But I take it from your statement you 
wouldn't subscribe to overturning congressional Acts because of 
our method of reasoning?
    Judge Alito. I think that Congress's ability to reason is 
fully equal to that of the judiciary and I think Congress--
    Chairman Specter. And you think that even after appearing 
here for a day and a half?
    [Laughter.]
    Judge Alito. I have always thought that and nothing has 
changed my mind about that.
    Senator Hatch. I am starting to worry about you.
    [Laughter.]
    Chairman Specter. That is on Senator Hatch's time.
    [Laughter.]
    Chairman Specter. Let me take up the Americans with 
Disabilities Act on two decisions within a couple of years of 
each other, one where the Supreme Court declared 
unconstitutional the Americans with Disabilities Act because it 
applied to employment, upholding the Act as it applied to 
access to facilities. Justice Scalia had a ringing dissent when 
the Court imposed the standard of congruence and 
proportionality, a very difficult standard which you wrestled 
with in the family leave case.
    The congruent and proportional standard came to the Court 
in the Boerne case in 1997, so it is very recent origin and it 
has all the earmarks of having been pulled out of the thin air. 
Justice Scalia said that it was a thinly veiled invitation to 
judicial arbitrariness and policy-driven decisionmaking. 
Justice Scalia criticized the majority opinion for functioning 
as a taskmaster to see to it that Congress had done its 
homework. Here again, there was a voluminous record, 13 
congressional hearings. Thirty-thousand people were surveyed.
    Do you think, Judge Alito, that a test like congruence and 
proportionality is fair notice to the Congress on what we can 
do by way of legislation? Here, we are dealing--and it is maybe 
worth just a little explanation. When Congress legislates on 
constitutional issues under Article V of the 14th Amendment, 
the Court then makes a comparison to State immunity under the 
11th Amendment. But do you think that is a fair test as to what 
we are to try to figure out what the Supreme Court is later 
going to say is congruent and proportionate?
    Judge Alito. Well, like many tests in the law, it is not a 
mathematical or a scientific formula that can produce a 
particular result with certainty as it is applied to particular 
situations. It addresses--
    Chairman Specter. How about just fair notice? Never mind 
mathematical certainty.
    Judge Alito. It addresses a difficult problem the Court has 
grappled with over the years and that is the scope of 
Congress's authority under Section V of the 15th Amendment--of 
the 14th Amendment to pass legislation enforcing the provisions 
of the 14th Amendment, and one argument that has been made 
which would represent a very narrow interpretation of 
congressional power, and this is basically the argument that 
Justice Scalia--the position that Justice Scalia took in the 
dissent that you mentioned, is that Congress' authority doesn't 
extend any further than remedying actual violations of the 14th 
Amendment, that there is no--Congress doesn't have additional 
authority to enact prophylactic measures outside of the area of 
race, which Justice Scalia would treat differently and 
recognize broader authority because of the historical origin of 
the 14th Amendment.
    Chairman Specter. Judge Alito, what is wrong with the test 
of Maryland v. Wirtz and Gonzales v. Raich, because you take a 
look at power under the Commerce Clause and to be applicable to 
our legislation under the Americans with Disabilities Act? That 
test is where the Court has gone into some length to say what 
you have gone into repeatedly, that judges have no expertise. 
It is up to the Congress to have hearings. It is up to the 
Congress to find facts. It is up to the Congress to find out 
what goes on in the real world.
    In Wirtz in 1968 and reaffirmed recently in Gonzales v. 
Raich after Morrison, after Lopez, quote, ``where we find the 
legislators have a rational basis for finding a chosen 
regulatory scheme necessary for the protection of commerce,'' 
could apply as well to disability, ``our investigation is at an 
end.'' What is wrong with that? Would you subscribe to that 
test over the proportionate and congruence test?
    Judge Alito. There are a number of tests that have been 
used and proposed over the years in this area and this is the 
subject, I think, of continuing litigation in the Supreme 
Court. There is the Maryland v. Wirtz approach and then the 
City of Boerne approach, and you mentioned that the City of 
Boerne is a relatively recent decision and it's been followed 
by a number of subsequent decisions--
    Chairman Specter. Where did it come from? Where did the 
Boerne test on proportionate and congruence come from if not 
thin air?
    Judge Alito. Well, I think it was an effort by the majority 
in that case to identify a standard that would not strictly 
limit congressional power to remedying established violations 
of the 14th Amendment without going--while still, in their 
view, retaining the necessary remedial connection to Section V 
of the 14th Amendment. It is an approach that they have used in 
a number of cases and the cases have not come out--sometimes 
the results in the cases have not been predictable.
    You mentioned the contrast between the two decisions under 
the Americans with Disabilities Act. I think Nevada v. Hibbs 
was a decision that some people--that surprised some people 
based on the Court's prior precedents. So there is, I think, 
still some ferment in this area and I am sure it is a question 
that's going to be--that will come up in future cases.
    Chairman Specter. Well, we are speaking not only to you, 
Judge Alito, but to the Court. The Court watches these 
proceedings and I think they ought to know what the Congress 
thinks about making us schoolchildren per challenging our 
method of reasoning. We are considering legislation which would 
give Congress standing to go into the Supreme Court to uphold 
our cases. Right now, the Solicitor General does that, but he 
is in the executive branch. We don't want to derogate the 
Solicitor General in your presence, Judge Alito, but the 
thinking that we have had was to speak about the decisions, the 
Court's decisions on the floor in the Senate, nobody pays 
attention to that. Maybe we would try to come in as amicus. Why 
do that? We have the power to grant standing. We can grant 
standing to ourselves and come into Court and fight to uphold 
constitutionality.
    Let me move at this point to the recent legislation which 
takes away the jurisdiction of the Federal bench to hear habeas 
corpus decisions. It is in the context of the detainees.
    Justice O'Connor in Hamdi laid out the law in flat terms. 
All agree that absent suspension, the Writ of Habeas Corpus 
remains available to every individual detained within the 
United States, every individual, not just citizens. And then 
she spells out the way you suspend the writ, and you do it only 
by rebellion or invasion. Then this recent legislation says the 
District Columbia Court of Appeals shall have the exclusive 
jurisdiction to determine the validity of any final decision by 
the Combatant Status Review Tribunal. If it means what it says, 
and judges like to look to the statute as opposed to going to 
congressional intent, if it means what it says, that there is 
exclusive jurisdiction, there is no jurisdiction of the Supreme 
Court.
    This may come before the Court, but what factors would you 
consider to be relevant in making the analysis as to again 
maintaining equilibrium between the Court and the Congress of 
our authority to take away Federal court jurisdiction on this 
important item?
    Judge Alito. In the area of habeas corpus, there are a 
number of important principles that have to be considered in 
reviewing any legislation that is argued to--that someone 
contends has altered habeas jurisdiction. The first is that the 
Court said in a case called INS v. Cyr that if there is an 
attempt to--that habeas jurisdiction can't be taken away unless 
it's clear in the statute that that's what was intended. Habeas 
jurisdiction is not to be repealed by implication. That's one 
important principle.
    And then in Felker v. Turpin, which involved the Anti-
Terrorism and Effective Death Penalty Act of 1996, Congress--
I'm sorry, the Supreme Court considered arguments about whether 
provisions of that legislation which restructured Federal 
habeas review violated the Constitution and they found that 
there wasn't a violation because the essentials of the writ 
were preserved. And so if other legislation is challenged, it 
would have to be reviewed under standards like that.
    Chairman Specter. Judge Alito, I want to move now to a 
subject on efforts to have television in the Supreme Court of 
the United States, a subject very near and dear to my heart. I 
have been pushing it for a long time. I am personally convinced 
that it is going to come some day. I am not sure whether it 
will come during my tenure in the Senate, more likely to come 
during the tenure of Chief Justice Roberts in the Supreme 
Court, or your tenure, if confirmed.
    The Supreme Court said in the Richmond Television case 
that, quote, ``the rights of a public trial belong not just to 
the accused, but to the public and the press, as well. Such 
openness has long been recognized as an indispensable attribute 
in the Anglo-Saxon trial.'' There are many other lines of 
authority, but only a few moments left to set the stage here, 
but the Supreme Court has the final word.
    We can talk about the President's war power under Article 
II and the congressional authority under the Foreign 
Intelligence Surveillance Act, but the Court makes the 
decision. We can talk about taking away habeas corpus 
jurisdiction, but the Court decides whether we can do it or 
not. We can talk about the insult of declaring Acts of Congress 
unconstitutional because of our method of reasoning, but the 
Court can do that. And the Court has made these decisions on 
all the important subjects. The Court decided who would be 
President of the United States in Bush v. Gore. The Court 
decides who lives on a woman's right to choose, who dies on the 
right to die, on the death penalty, on every critical decision.
    The Congress has the authority to do many things on the 
administrative level, such as we set the starting date for the 
Court, the first Monday in October. We set what is a quorum for 
the Court, six members. Congress sets the size of the Court, 
the effort made by President Roosevelt to increase the number 
from nine to 15. We put provisions in on speedy trial, time 
limits on habeas corpus matters.
    In recent times, some of those who have objected to 
televising the Court have been on television quite a bit 
themselves. When Justice Scalia and Justice Breyer come on TV, 
it is a pretty good show. There is not much surfing when that 
happens, like surfing when my turn comes to question.
    [Laughter.]
    Chairman Specter. But this proceeding on confirmation of 
Supreme Court Justices has attracted a lot of attention. As I 
said to you yesterday, I am tired of picking up the front page 
everywhere and seeing your picture on it. Fred Hume was on Fox 
News talking about going to a Redskins game in 1991 when 
Justice Thomas was being confirmed and how he had his earsets 
on to listen to the proceedings. I think Senator Leahy was 
questioning Professor Hill at that particular time.
    But how about it? Why shouldn't the Supreme Court be open 
to the public with television?
    Judge Alito. Well, I had the opportunity to deal with this 
issue actually in relation to my own court a number of years 
ago. All the courts of appeals were given the authority to 
allow their oral arguments to be televised if they wanted and 
we had a debate within our court about whether we would, or 
whether we should allow television cameras in our courtroom and 
I argued that we should do it. I thought that it would be a 
useful--
    Chairman Specter. You have taken a position on this issue?
    Judge Alito. Well, I did, and this is one of the matters on 
which I ended up in dissent in my court.
    [Laughter.]
    Judge Alito. I think the majority was fearful that our 
Nielsen numbers would be in the negatives.
    Chairman Specter. Could you promise the same result?
    [Laughter.]
    Chairman Specter. Could you promise the same result, if 
confirmed, to be a dissenter for the Court to allow TV?
    Senator Grassley. Be careful how you answer.
    Chairman Specter. Be careful how you answer everything, as 
you have been.
    Judge Alito. The issue is a little bit different on the 
Supreme Court and it would be presumptuous for me to talk about 
it right now, particularly since I think at least one of the 
Justices has said that a television camera would make its way 
into the Supreme Court courtroom over his dead body, so I 
wouldn't want to comment on it.
    Chairman Specter. Justice Souter. But quite a few of his 
colleagues have been on television.
    Let me ask you this, Judge Alito. I know what the answer 
will be, with 7 seconds left. Will you keep an open mind?
    Judge Alito. I will keep an open mind despite the position 
I took on the Third Circuit.
    [Laughter.]
    Chairman Specter. Thank you, Judge Alito.
    We will now take a 15-minute break and we will reconvene at 
11:35.
    [Recess 11:18 a.m. to 11:35 a.m.]
    Chairman Specter. The hearing will resume. Turning to the 
distinguished ranking member, Senator Leahy, for 20 minutes.
    Senator Leahy. Thank you, Mr. Chairman.
    Judge Alito, welcome back. If the past is any prologue, you 
probably do not have more than another day or so of this to go 
through. I am concerned. I want to just state this right out, 
concerned that you may be retreating from part of your record. 
I think that some of the answers that--I have expressed this 
concern, mentioned to the Chairman I am concerned that some of 
your answers were inconsistent with past statements. All of us 
want to know your legal and constitutional philosophy.
    So let's go back to the questions that I was asking 
yesterday about checking Presidential power, and we spoke about 
Justice Jackson's opinion in Youngstown. Justice Jackson, as 
you know, is a hero of mine, and I point often to the 
Youngstown case. But when Congress acts to strain the 
President's power, as we did with the anti-torture statutes and 
the Foreign Intelligence Surveillance Act, I believe the 
President's power then is at its lowest ebb. You seemed to be 
saying yesterday that fell into the second category of Jackson, 
the twilight zone. Actually, I believe you were mistaken on 
that. Justice Jackson spoke of the twilight zone area, or as he 
said, zone of twilight, where Congress had not acted.
    So let us go to the landmark decision in Hamdi, and Justice 
O'Connor's decision. The issue there was whether due process 
required that a U.S. citizen, should have a meaningful chance 
to challenge the factual basis for his detention by the 
Government.
    Now, Justice O'Connor wrote that the President does not 
have a blank check even in time of war. Yesterday you told 
Senator Specter that you agreed with Justice O'Connor's general 
statement. A very different view was in the dissent. Justice 
Thomas would have upheld the extreme claims with the all 
powerful and essentially unchecked President. He argued the 
Government's powers could not be balanced away by the Court, 
and there is no occasion to balance a competing interest. Which 
one is right, Justice O'Connor or Justice Thomas? They are 
quite a bit different.
    Judge Alito. Justice O'Connor wrote the opinion of the 
Court. The first question that she addressed in Hamdi was 
whether it was lawful to detain Hamdi, and it was a statutory 
question, and it was a question whether--it was whether he was 
being detained in violation of what is often referred to as the 
anti-detention statute, which was passed to prevent a 
repetition of the Japanese internment that occurred during 
World War II, and she concluded that the authorization for the 
use of military force constituted authorization for detention. 
And then she went on to the issue of the constitutional 
procedures that would have to be followed before someone could 
be detained, and she looked to standard procedural due process 
law in this area, and identified some of the requirements that 
would have to be followed before someone could be detained.
    And now issues have arisen about the identity of the 
tribunal that is to make a determination about detaining people 
who are taken into custody during the war on terrorism, and 
that's one of the issues that's working its way through the 
court system.
    Senator Leahy. No, I am not talking about things working 
their way through, but just on Hamdi, which has already been 
decided. Would you say that Justice O'Connor basically applied 
the Jackson test, not the twilight zone test, but the test of 
where the President's power is at its lowest ebb?
    Judge Alito. In addressing the statutory question I don't 
think she had any need to get into Justice Jackson's framework 
as well.
    Senator Leahy. Would you say it would be consistent with 
what Justice Jackson said?
    Judge Alito. I think it certainly is consistent with what 
Justice Jackson said.
    Senator Leahy. Which decision do you personally agree with, 
hers or the dissent by Justice Thomas?
    Judge Alito. I think that the war powers are divided 
between the executive branch and Congress. I think that's a 
starting point to look at in this area. The President is the 
Commander in Chief, and he has authority in the area of foreign 
affairs, and is recognized in Supreme Court decisions as the 
sole organ of the country in conducting foreign affairs.
    Senator Leahy. But you are not going to say which of the 
two decisions you agree with.
    Judge Alito. Well, I'm trying to explain my understanding 
of the division of authority in this area, and I think that 
it's divided between the executive and the Congress. I 
certainly don't think that the President has a blank check in 
time of war. He does have the responsibility as the Commander 
in Chief, which is an awesome responsibility.
    Senator Leahy. And we all understand that and appreciate 
that. I understood, listening to Chief Justice Roberts, when he 
was here sitting where you are, that he felt that Justice 
O'Connor's decision most clearly tracked the Jackson standards 
in Youngstown.
    But I want to get more into this unitary Executive theory 
because I really had questions listening to you yesterday. You 
have said as recently as five years ago, that you believe the 
unitary Executive theory best captures the constitutional role 
of Presidential power. You were a sitting judge when you said 
that. And do you still adhere to that constitutional view that 
you were expressing 5 years ago?
    Judge Alito. I think that the considerations that inform 
the theory of the unitary Executive are still important in 
determining, in deciding separation of powers issues that arise 
in this area. Of course, when questions come up involving the 
power of removal, which was the particular power that I was 
talking about in the talk that you're referring to, those are 
now governed by a line of precedents from Myers going through 
Humphrey's Executor and Wiener and Morrison, where the Court 
held 8-1 that the removal restrictions that were placed on an 
independent counsel under the Independent Counsel Act did not 
violate separation of powers principles. So those would be 
applied. Those would be the governing precedents on the 
question of removal, but my point in the talk was that the 
considerations that underlie this theory are relevant, should 
inform decisionmaking in the area going beyond the narrow 
question of removal.
    Senator Leahy. But in the past you criticized Morrison. Are 
you saying now that you are comfortable with Morrison, that you 
accept it?
    Judge Alito. Morrison is a settled--is a precedent of the 
Court. It was an 8-1 decision. It's entitled to respect under 
stare decisis. It concerns the Independent Counsel Act, which 
no longer is in force.
    Senator Leahy. So do you hold today that the Independent 
Counsel statute was beyond the congressional authority to 
authorize--to enact?
    Judge Alito. No. I don't think that was ever my position.
    Senator Leahy. All right. Under the theory of unitary 
Executive that you have espoused, what weight and relevance 
should the Supreme Court give to a Presidential signing 
statement? I ask that because these are real issues. I mean we 
passed the McCain-Warner, et al. statute against torture, when 
the President did a separate signing statement. After he signed 
it into law, he did not veto it. He had the right and, of 
course, the ability to veto it. He did not veto it. He signed 
it into law, and then he wrote a sidebar, a signing statement 
basically saying that it will not apply to him or those acting 
under his order if he does not want it to.
    Under the unitary Executive theory, one could argue that he 
has an absolute right to ignore a law that Congress has 
written. What kind of weight do you think should be given to 
signing statements?
    Judge Alito. I don't see any connection between the concept 
of a unitary Executive and the weight that should be given to 
signing statements in interpreting statutes. I view those as 
entirely separate questions. The question of the unitary 
Executive, as I was explaining yesterday, does not concern the 
scope of Executive powers. It concerns who controls whatever 
power the Executive has. You could have an Executive with very 
narrow powers and still have a unitary Executive. So those are 
entirely different questions.
    The scope of Executive power gets into the question of 
inherent Executive power.
    Senator Leahy. Let's go into that a little bit because back 
in the days when I was a prosecutor, I mean I was very shocked 
what happened in the Saturday Night Massacre. A President 
orders certain things to be done. The Attorney General says, 
no, I won't do it. Fires him. The Deputy Attorney General, 
said, ``OK, you do it,'' and Deputy Attorney General would not, 
saying it violated the law. Fires him. They keep on going down 
to finally find one person, a person you have praised, Robert 
Bork, who says, ``Fine, I'll fire him. I'll do what the 
President says.''
    You have criticized Congress for allowing these independent 
agencies to refine and apply policies passed by Congress. You 
said that insofar as the President is the Chief Executive, he 
should follow their policies, not Congress.
    So let's take one, for example, the Federal Election 
Commission, independent agency. They make policies. Suppose the 
President, whoever was the President, did not like the fact 
they were investigating somebody who had contributed to him. 
Could he order them to stop that investigation?
    Judge Alito. Senator, I don't think I have ever said that--
I don't think I've ever challenged the constitutionality of 
independent agencies. My understanding--
    Senator Leahy. No, but you have said--my understanding is 
that you chastised Congress for giving so much power to them 
when the power should be in the President or in the Executive.
    Judge Alito. Senator, I don't think I've ever said that 
either. I said that I thought that there was merit to the 
theory of the unitary Executive, and I tried to explain how I 
thought that should play out in the post-Morrison world, 
accepting Morrison as the Supreme Court's latest decision in a 
resounding 8-1 decision on the issue of removal. How should the 
issue of--how should the concept of the unitary Executive play 
out in the post-Morrison world?
    On the issue of removal, my understanding of where the law 
stands now is that Myers established that there are certain 
officers of the executive branch whom the President has the 
authority to remove as he sees fit. There are--and there are 
those--
    Senator Leahy. Of course, he could fire his whole cabinet 
today if he wanted to. We all accept that.
    Judge Alito. Well, that was the issue that was presented by 
the Tenure in Office Act that led to the impeachment of the 
first President Johnson, and in Myers, Chief Justice Taft, 
although the Act of that controversy was long past, Chief 
Justice Taft opined that the Tenure in Office Act had been 
unconstitutional.
    Senator Leahy. But let us not go off the subject of these 
independent agencies that we have set up. Use as an example the 
FEC, the Federal Election Commission. Could the President, if 
he did not like somebody they were investigating, a contributor 
or something, could he order them to stop?
    Judge Alito. What Morrison says is that Congress can place 
restrictions on the removal of inferior officers, provided that 
those removal restrictions don't interfere with the President's 
exercise of Executive authority. So they adopted a functional 
approach, and that was the Court's latest word on this 
question. They looked back to Humphrey's Executor, and Wiener, 
which had talked about categories, and they--categories of 
quasi-judicial and quasi-legislative officers, and they 
reformulated this as a functional approach, and that's the 
approach that would now be applied.
    Senator Leahy. Do you believe the President has the power 
to curtail investigations, for example, by the Department of 
Justice?
    Judge Alito. I don't think--
    Senator Leahy. The Department of Justice is under him.
    Judge Alito. I don't think the President is above the law, 
and the President is the head of the executive branch, and I've 
explained my understanding of the removal restrictions that can 
and cannot be placed on officers of the executive branch.
    Senator Leahy. But could he order them to stop an 
investigation?
    Judge Alito. Well, you'd have to look at the facts of the 
case and the particular officer that we're talking about.
    Senator Leahy. Could he order the FBI to conduct 
surveillance in a way not authorized by statute?
    Judge Alito. The President is subject to constitutional 
restrictions, and he cannot lawfully direct the FBI or anybody 
in the Justice Department or anybody else in the executive 
branch to do anything that violates the Constitution.
    Senator Leahy. Could he--I am speaking now of statute--
could he order our intelligence agencies to do something that 
was specifically prohibited by statute?
    Judge Alito. My answer to that is the same thing. He has to 
follow the Constitution and the laws of the United States. He 
has to take care that the laws are faithfully executed. If a 
statute is unconstitutional, then the President--then the 
Constitution would trump the statute. But if a statute is not 
unconstitutional then the statute is binding on the President 
and everyone else.
    Senator Leahy. Does the President have unlimited power just 
to declare a statute, especially if it is a statute that he had 
signed into law, to then declare it unconstitutional or say he 
is not going to follow it?
    Judge Alito. If the matter is later challenged in court, of 
course, the President isn't going to have the last word on that 
question, that's for sure. And the courts would exercise 
absolutely independent judgment on that question. It's 
emphatically the duty of the courts to say what the law is when 
constitutional questions are raised in cases that come before 
the courts.
    Senator Leahy. That is an answer I agree with. Thank you. 
In other areas, SEC, can he order them to stop an investigation 
if it is somebody he does not want investigated?
    Judge Alito. Well, the independent agencies are governed by 
Humphrey's Executor and cases that follow that, and there have 
been restrictions placed on the removal of commissioners of the 
independent agencies, and they have been sustained by the 
Supreme Court. That's where the Supreme Court precedent on the 
issue stands.
    Senator Leahy. Is that settled law?
    Judge Alito. It is a line of precedent that culminated, I 
would say--there have been a few additional cases relating to 
this, the Edmond case and the Freitag case, but I would look to 
Morrison, which was an 8-1 decision involving a subject of 
considerable public controversy, the removal of an independent 
counsel, removal of restrictions on that independent counsel.
    Senator Leahy. I am still having some difficulty with 
statements you have made about the unitary Executive and how 
you would apply it. You said yesterday, in answer to a question 
I asked, that when people's rights are violated, they should 
have their day in court. The courts are there to protect the 
rights of individuals. I do not think anybody in this room 
would disagree with that. It is the practice we look at in PIRG 
v. Magnesium Electron. You concluded the Congress did not have 
the constitutional authority to authorize citizens to bring a 
suit against polluters under the Clean Water Act, whether the 
people had justiciable claims or not, there were a number of 
people downstream from Magnesium Electron. They said the water 
had been polluted. They brought a suit. You threw it out. Judge 
Lewis dissented, said it should have gone back to the lower 
court on the question of facts.
    I will give you a two-part question. One, why did you send 
that case back to the lower court? And do you accept Laidlaw as 
being settled law?
    Judge Alito. Well, Magnesium Electron presented the 
question of whether we had a case or controversy under Article 
III, and that's the fundamental limit on our jurisdiction. The 
Supreme Court has said that we do not have a case or 
controversy before us if we do not have a party that has 
constitutional standing which requires injury in fact. And the 
issue was whether the plaintiffs in that case had established 
injury in fact. There was a plant that was discharging certain 
things into a creek, which eventually emptied into the Delaware 
River, and the plaintiffs in the case alleged that they enjoyed 
the Delaware River in a variety of ways. They ate fish from the 
river. They drank water from the river. They walked along the 
river.
    But there was no--there was nothing in the evidence--and 
Judge Lewis agreed on this. Judge Roth wrote the opinion and I 
agreed with Judge Roth, and Judge Lewis agreed with us on this 
point, there was nothing in the record.
    Senator Leahy. But didn't Judge Lewis agree with you on the 
legal point, but he suggested sending it back to the lower 
court to determine whether there were facts to give standing? I 
mean, we all agree you can't be in a case if you don't have 
standing, but didn't Judge Lewis say, send it back to the lower 
court so they can determine on the facts whether there might be 
standing?
    Judge Alito. The evidence that was before us did not show 
that there was any standing on the part of the plaintiffs. 
There was no evidence of harm to the Delaware River in any way 
from the discharges and that was the basis of Judge Roth's 
opinion which with I agreed. As I recall, Judge Lewis's point 
was that the case should go back to the district court so that 
the plaintiffs could have an opportunity to present additional 
evidence. But as I recall, they were not even arguing before us 
that they had additional evidence. They were not arguing before 
us, as I recall, that we have additional evidence and we'd like 
the opportunity to go back to the district court to present it. 
That's my recollection of the matter.
    Senator Leahy. And the other part of my question is 
Laidlaw, is it settled law?
    Judge Alito. Well, Laidlaw is a precedent on the Supreme 
Court and my answer to the question there is the same. It's 
entitled to the respect of stare decisis.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch?
    Senator Hatch. Judge Alito, I just want to clarify a few 
matters. In his questioning this morning, Senator Durbin from 
Illinois I think apparently misstated what Chief Justice 
Roberts said during his confirmation hearing. Senator Durbin 
claimed that now the Chief Justice said that Roe was the 
settled law of the land. In fact, that exchange that Senator 
Durbin referred to was made during the confirmation process for 
Judge Roberts to the Circuit Court of Appeals for the District 
of Columbia, where he would have to admit that that would be 
settled law for him in that court. It is beyond question that 
for a circuit court nominee, the Supreme Court's pronouncements 
on specific questions are binding precedents and will be the 
settled law of the land.
    Moreover, contrary to the distinguished Senator from 
Illinois's suggestion, then-Judge Roberts's testimony in his 
recent confirmation hearing, and Judge, your testimony today 
and yesterday, you have both been entirely consistent in this 
particular matter. I just wanted to clarify that because there 
is a difference between a nominee for the circuit court of 
appeals saying that something is settled law that he or she has 
to be bound by than by somebody who is a nominee for the 
Supreme Court, and that is just a matter of clarification that 
I would like to make at this time.
    Now, yesterday, you were asked, I think, some 340 questions 
by 15 Senators and you are getting a bunch today. I am told 
that you felt that you had to decline to answer only about 5 
percent of them. That is even lower than previous Supreme Court 
nominees, by far in most cases. This hearing has hopefully 
provided an opportunity for you to address our concerns and 
answer some of the criticisms from members of this Committee. 
But, of course, there is always a battle waged outside of this 
Committee room by the special interest groups, who are also 
making charges and launching really unfair attacks on you. Now, 
these attacks typically go directly across the airwaves or the 
Internet with hardly a chance to even catch them, let alone 
address them or rebut them or correct them. So I want to give 
you a chance to respond to some of these attacks by some of 
these left-wing groups, many of which are certainly less than 
responsible and, in my view, pretty reprehensible in what they 
do in these matters.
    One group says in a press release that in the Chittister 
case and at other times in your career on the bench, you go out 
of your way to rule against workers. This group claims what it 
calls your views and biases are strong evidence that you would, 
in their words, quote, ``rarely rule in favor of those seeking 
justice in the courts.'' I think that is a good example of how 
misleading some of these groups can actually be, where they are 
looking only for results in certain cases rather than upholding 
of the law itself in those particular cases. In that particular 
case, they are apparently willing to ignore two things about 
the cases they discuss. The ignore the facts, they ignore the 
law, and that is all, just the facts and the law. But they also 
ignore what you have written and they ignore what you have said 
here today.
    How about that criticism, Judge? In Chittister, did you go 
out of your way to rule against workers? What were the facts 
and the law in the case and why did you think that they 
required the result that you finally upheld in that case?
    Judge Alito. I felt the result was dictated by Supreme 
Court precedent, and I wasn't the only one who thought that. 
That was a unanimous decision of our panel. Judge McKee and, I 
believe, Judge Fulham from the District Court in Philadelphia 
were on that panel. They all agreed, and it is my recollection 
that seven other courts of appeals have decided the case the 
same way. More than 20 court of appeals--that issue the same 
way. More than 20 court of appeals judges, including judges 
appointed by all recent Presidents, have reached that decision.
    I think when you look at the law and the facts of the case, 
it becomes clear why there is so much unanimity on the 
question. Whether one likes the test or not, the test that we 
in the lower courts have to apply in this area is the 
congruence and proportionality test from City of Boerne, and 
therefore, what we had to do was to see whether there was a 
record of discrimination relating to the particular provision 
that was at issue in Chittister, which had to do with leave for 
personal illness. So there would have to be some evidence that 
State employers had given more leave for personal illness to 
men than women, or more leave for personal illness to women 
than men, and there was no evidence whatsoever on this issue. 
That's why all of these courts of appeals reached the 
conclusion that they did in Chittister.
    Senator Hatch. When somebody takes an unfair crack at me, I 
can come back at them as a Member of the U.S. Senate. But 
because you are a judge and not a politician, you really don't 
have the opportunity, really, to address fully these 
misrepresentations of your views, and there have been plenty of 
them in this process that you have had to undergo. So I wanted 
to give you some opportunity here.
    For example, one liberal group sent an e-mail around just 
yesterday that claimed you were not responsive to a question 
about whether the President can immunize executive branch 
officials who directly violate the law. Now, is it an accurate 
representation of your views to suggest that you argued that 
executive branch officials should be fully immunized for their 
violations of the law?
    Judge Alito. No, it is not a correct expression of my 
views. The President, like everybody else, has to follow the 
Constitution and the laws. He has to follow the Constitution at 
all times and he has to follow all the laws that are enacted 
consistent with the Constitution. That's clear.
    Now, on the Mitchell v. Forsythe case, which they may be 
referring to, that was simply--I was simply saying that a 
certain argument relating to immunity from civil damages was an 
argument that had been made before and it was an argument that 
was being requested by our client in the case who was being 
sued in his individual capacity, and I recommended that we not 
make the argument, but I said, I don't dispute this argument, 
and that's all that was involved there.
    Senator Hatch. Let me just say this. I want to allow you to 
respond to a tactic that has been used by several of our 
colleagues here in these hearings. They observed results in 
some past cases and then they expressed concerns that entire 
groups or categories of litigants might not be able to get a 
fair shake by you in the court. One of them yesterday wondered 
whether the average citizen, quote, ``can get a fair shake from 
you when the government is a party.'' Another did the same 
thing this morning. It is one thing to express disagreement 
with your decisions, and, of course, as I said before, to look 
only at results and ignore the facts and the law is 
fundamentally misguided and it is a misleading way of 
evaluating judicial decisions.
    But let us be clear what is being floated around here with 
this type of tactic. Those who say, because you ruled this way 
in the past, litigants cannot get a fair shake in the future, 
are saying, Judge, that you are biased, that you prejudge these 
cases, that you are less than fair and impartial, something 
that virtually everybody who knows you, including all of the 
people who testified before the American Bar Association, say 
is false, that you prejudge these cases, you are less than fair 
and impartial. That is a very serious charge, even if it is 
cloaked in suggestions and innuendo.
    Judge, you previously mentioned you oath of office, an oath 
before God to do equal justice to everyone without regard to 
who the parties are. How do you react to this suggestion that 
the way you have ruled in the past shows or even suggests that 
you are biased and that entire categories of litigants may not 
get a fair shake before you?
    Judge Alito. Well, I reject that. I believe very strongly 
in treating everybody who comes before me absolutely equal. I 
take that oath very seriously and I have tried to do my very 
best to abide by that during my 15 years on the bench.
    Now, I don't think a judge should be keeping a scorecard 
about how many times the judge votes for one category of 
litigant versus another in particular types of cases. That 
would be wrong. We are supposed to do justice on an individual 
basis in the cases that come before us. But I think that if 
anybody looks at the categories of--looks at the cases that I 
have voted on in any of the categories of cases that have been 
cited, they will see that there are decisions on both sides. In 
every type of employment discrimination case, for example, 
there are decisions on both sides.
    Senator Hatch. Most employment discrimination cases really 
are decided at the lower level.
    Judge Alito. Most of them are, yes.
    Senator Hatch. And when they get up to your level, it is 
generally decided on technical or procedural bases. Am I wrong 
in that?
    Judge Alito. No, that is correct, Senator.
    Senator Hatch. And sometimes you have to uphold the law, 
even though you may be uncomfortable with the law yourself.
    Judge Alito. We have to decide the cases on the facts that 
are in the record and the law that applies.
    Senator Hatch. That is right. Let me just ask you about a 
few of your cases, because it is easy to cherry-pick these 
cases and find a sentence here you don't like and a sentence 
there you don't like and criticize you in the process as though 
you are not being fair when, in fact, everybody who knows you 
knows your impeccable reputation for fairness, dignity, 
decency, honor, and capacity, and that is why you got the 
highest rating from the American Bar Association and deserve 
it, and you twice got that, and I know how tough they can be.
    But let me just give you a couple of illustrations. Zubi v. 
AT&T. You were the lone dissenter in that case. What did you 
dissent from?
    Judge Alito. I dissented from a majority decision that held 
that Mr. Zubi, who was claiming racial discrimination, would 
not have his day in court because of the statutory--
    Senator Hatch. You would have given him his day in court, 
right--
    Judge Alito. I would have, yes--
    Senator Hatch [continuing]. If it had been up to you?
    Judge Alito. Yes.
    Senator Hatch. All right. How about U.S. v. Kithcart? I 
don't expect you to remember all these cases, and if you don't, 
just raise your hand and I will try and recite them, but this 
was a Fourth Amendment case. You held that the Fourth Amendment 
does not allow police to target drivers because of the color of 
their skin, is that right?
    Judge Alito. That is right. That was essentially a case of 
racial profiling and I wrote an opinion holding that that was a 
violation of the Fourth Amendment.
    Senator Hatch. And that was even after a police officer 
received a report that two black men in a black sportscar had 
committed three robberies, and she pulled over the first black 
man in a black sportscar, or the first black sportscar she saw. 
But you ruled for the defendant and against racial profiling in 
that case.
    Judge Alito. That's correct, Senator.
    Senator Hatch. OK. In Thomas v. Commissioner of Social 
Security, just to mention a few of these cases to show that you 
are going to do what is right, regardless. Sometimes in these 
employment cases and even other cases, when they get up on 
appeal, they are fairly technical in nature and you have got to 
do what is right under the law. But in Thomas v. Commissioner 
of Social Security--do you recall that case?
    Judge Alito. I do, yes.
    Senator Hatch. What did you do there?
    Judge Alito. Well, that was a case where I think that the 
Supreme Court thought that my opinion had gone too far in favor 
of the little guy who was involved there. That was a--
    Senator Hatch. This was a woman with disabilities, right?
    Judge Alito. That's right, a woman who was trying to get--
    Senator Hatch. And she sought Social Security benefits.
    Judge Alito.--Social Security disability benefits, and in 
order to be eligible for those, she had to be unable to perform 
any job that existed in substantial numbers in the national 
economy.
    Senator Hatch. She had a job as an elevator operator, if I 
recall.
    Judge Alito. That's right. As the case was presented to us, 
the only job that she could perform was her past job, which was 
as an elevator operator, and what I said was that you can't 
deny somebody Social Security benefits because the person is 
able to do a job that no longer exists in any substantial 
numbers in the national economy. You can't deny benefits based 
on a hypothetical job. It has to be based on a real job. And 
the Supreme Court didn't see it that way, but it seems to me 
that the way we ruled was consistent with what I thought--
    Senator Hatch. So in other words, you stood up for the 
person seeking rights here. The Supreme Court overruled you.
    Judge Alito. That's right.
    Senator Hatch. Oh my goodness. In the landmark case of, how 
do you pronounce it, Fatin v. INS?
    Judge Alito. ``Fatten,'' I think.
    Senator Hatch. This involved an Iranian woman--Iranian 
women who refused to conform to their government's gender-
specific laws and social norms, whether or not they should be 
granted asylum in America. How did you rule in that case?
    Judge Alito. I think that was one of the first cases in the 
Federal courts to hold that requiring a woman to be returned to 
a country where she would have to wear a veil and conform to 
other practices like that would amount to persecution if that 
was deeply offensive to her and that subjecting a woman to 
persecution in Iran or any other country to which she would be 
returned based on feminism would be persecution on the basis of 
political opinion.
    Senator Hatch. I have got another nine or ten cases and 
perhaps even more than I could go through, but the point is 
that whenever they deserve to win, they win, regardless of 
whether they are rich or poor, whether they are powerful or 
not. You basically upheld the law in these cases, is that 
correct?
    Judge Alito. That is what I've tried to do.
    Senator Hatch. And where you have been in dissent, you have 
tried to do it to the best of your ability.
    Judge Alito. That's right, Senator.
    Senator Hatch. OK. Let me just mention one other thing. 
This business of Vanguard, when you signed that back in 1990, 
12 years before the matter for which you are being criticized, 
not by anybody who has any ethical, professorial, or other 
knowledge, not by the American Bar Association, not by the vast 
majority of lawyers who look at these matters, that particular 
statement said, will you during your, quote, ``initial 
service.'' It seems to me those are important words. You 
haven't tried to hide behind that. You have just honestly 
explained that, basically, you made a mistake, which really 
wasn't a mistake according to all the ethics people and 
according to the American Bar Association. And now, instead of 
the original accusation and the original implication, you are 
being accused of not being forthcoming because of that original 
statement on your application form, to the Committee 
questionnaire.
    But the fact of the matter is that, quote, ``initial 
service'' doesn't mean 12 years away, does it, when there is no 
chance in the world that you had ever received any monetary 
benefit from Vanguard?
    Judge Alito. Well, I don't think initial service means 12 
years away--
    Senator Hatch. Neither do I and neither does anybody who 
cares about justice and about what is right in this matter. So 
to blow that out of proportion like your adversaries have done 
is really pretty offensive. I could go on and on and be 
stronger on that, but the fact of the matter is, I just wanted 
to make that statement. ``Initial service,'' unquote, is pretty 
clear.
    Let me just say that, sometimes, I just can't make sense 
out of what some of your critics are saying. On the one hand, 
they want to portray you as some sort of a robotic patsy for 
big government who does not think for himself. Yesterday, one 
of my Democratic colleagues even suggested that the Bush 
administration was trying to manipulate you to give responses 
favorable to them in this hearing. Now, you quite rightly said, 
and I think you were fairly restrained about saying it, that 
you have been a judge for 15 years and are quite capable of 
thinking for yourself.
    On the other hand, then your critics then turn it around 
and attack you for supposedly dissenting too much, as if you 
should actually stop doing all that thinking for yourself and 
just fall in line with the majority in all of your cases.
    Now, Judge, I know that appeals court judges--that the 
appeals courts themselves are collegial bodies, but how do you 
view dissenting from your colleagues? How do you decide when to 
do it? How do you know how often you dissent in your court, or 
do you know how often you dissent in your court and whether it 
is out of step with your colleagues? Could you give us some 
answers there?
    Judge Alito. Yes. I think that it is important for a multi-
member court to issue a judgment and to speak clearly to the 
lower courts and the parties. And so when I've been in a 
position where taking an independent position would result in 
the absence of a judgment. I had gone out of my way to make 
sure that there was a judgment, that there was a majority 
opinion. An example of that is the Rappa case where we were 
really divided three ways, and my position was close to Judge 
Becker's opinion, and Judge Becker had the opinion-writing 
assignment, and I issued an opinion saying, ``I don't 
completely agree with the way Judge Becker analyzed this issue. 
I would analyze it differently. But I'm joining his opinion so 
that there is a majority opinion, so that there is a clear 
statement of the law for the guidance of the parties.'' I think 
that's the first principle.
    Second is that judges should be respectful of each other's 
views, and I don't have any--I have tried never to write a 
dissenting opinion or respond in a majority opinion to a 
dissenting opinion in a way that was not completely respectful 
of the views of the other members of the court.
    It's useful to dissent if there's a chance that the case 
may go en banc, and that's happened in a number of cases where 
I've dissented. It's useful to dissent if there is a chance 
that the case may go to the Supreme Court and so that the 
Supreme Court will have the benefit of a different expression 
of views, and there have been cases--
    Senator Hatch. Well, would it surprise you to know that you 
have dissented only 79 times in nearly 5,000 cases in which you 
have participated? That comes to about 1.6 percent, which is 
considerably lower than most others who have been on the 
appellate courts. And I would observe that the Washington Post 
concluded in an editorial that your dissenting opinions ``are 
the work of a serious and scholarly judge whose arguments 
deserve respect.'' I certainly agree wholeheartedly with that 
assessment.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, Mr. Chairman.
    Judge Alito, I hadn't planned to get into Vanguard on this 
particular round, but I chaired those hearings when you were 
promoted to the circuit court, and I was also the one that 
filed those questions which you responded to. And you responded 
under oath when you promised the Committee that you would 
recuse yourself on Vanguard issues.
    Now I am just hearing from you that you believe that that 
pledge was somehow conditioned. Unlike my friend--and he is my 
friend--from Iowa that says, well, a pledge is just a pledge, 
it is like any political pledge around here. It is a political 
promise and doesn't carry much weight.
    That is not my opinion, and I don't think it is the opinion 
of most of the Members of this body. You made a pledge to the 
Senate, effectively to the American people, that you were going 
to recuse yourself. Now you say, well, it was just for an 
initial time, and I think 12 years is more than I really had in 
mind, or you just qualified your answer.
    How long, when you made that pledge and that promise to the 
Committee, how long did you intend to keep it?
    Judge Alito. Well, Senator--
    Senator Kennedy. And when that time was up, did you ever 
imagine that you might get back to the Committee and say, ``I 
believe my time is up on Vanguard''?
    Judge Alito. Well, Senator, the statement that I--the 
nature of the question that I was responding to did not figure 
in the way the Monga case was handled, and I thought I made 
that clear yesterday. I was following throughout my time on the 
bench the practice of going beyond the code, and had I focused 
on this issue when the matter came before me, I would have 
recused myself at that time, as I later did.
    But in answer to Senator Hatch's question, looking at that 
question today and looking at the answer, the question was: 
What do you intend to do during your initial period of service? 
And I think that that's what the answer has to be read as 
responding to. But just to be clear, that was not--I'm not 
saying that that's why this played out the way it did. I'm just 
saying that's how I think the question and the answer--that's 
how I think the question and any response to the answer by any 
nominee needs to be interpreted.
    Senator Kennedy. Well, if there is someone that can just 
understand what you just told us, I would be interested in it, 
because I don't.
    Senator Hatch. Well, I will be glad to explain it.
    Senator Kennedy. Well, if--Mr. Chairman.
    [Laughter.]
    Senator Kennedy. You in response to Senator Hatch did not 
believe you were bound by the promise because you said in your 
mind you felt that it was just for the initial period of it. 
That is another issue, because initially it was meant to 
include the investments that you had at that particular time. 
You might have those investments and then discard an investment 
and, therefore, no longer have a conflict. That is what--as the 
asker of the question had intended. But you have added another 
wrinkle to it. You have just indicated that when you made a 
pledge to the Committee that you were going to recuse yourself, 
that you thought that at some time you were going to be 
released. And I would just like to know how long that was going 
to be. Was that going to be 2 years? Was it going to be 3 
years? Was it going to be 5 years? When did you feel that you 
were going to be released if that--
    Judge Alito. Well, Senator, I--
    Senator Kennedy [continuing]. If we followed your 
interpretation?
    Judge Alito. Senator, I did not rely on that time 
limitation in relation to what I did in the Monga case, and I 
hope I have made that clear. If I didn't in my previous answer, 
I do want to make it clear. I did not rely on that in my 
handling of the Monga case.
    Looking at the question now, where it says ``initial period 
of service,'' I would say that 12 years late is not the initial 
period of service. But that was not--
    Senator Kennedy. When did it stop, then? When did you think 
that your pledge to the Committee halted, after how many years? 
Six months?
    Judge Alito. Well, Senator, I don't--
    Senator Kennedy. What did you intend at the time that you 
made the pledge? What was in your mind at that time? I am not 
interested in what is in your mind at this time, but what was 
in your mind at that time.
    Judge Alito. I can't specifically recall what was in my 
mind at that time, but I'll tell you what I'm pretty sure I had 
in mind. I was not a judge, and I was being considered for a 
judicial position. And what I was trying to express was 
basically the policy that I followed during all my years on the 
bench, which is to bend over backwards to make sure that I 
didn't do anything that came close to violating the code of 
conduct or give anybody the impression that I was doing 
anything that was improper.
    Senator Kennedy. The last question on this is: How long, 
then, when you made the promise under oath to the Committee 
that you were going to recuse yourself--and you understand that 
now to be--in your own interpretation just to be the initial 
time--how long did you think that that pledge and promise 
lasted?
    Judge Alito. Senator, as I said--
    Senator Kennedy. That is my question.
    Judge Alito. And, Senator, as I said, I can't tell you 15 
years later exactly what I thought when I read that question. 
It refers to the initial period of service, and looking at it 
now, it doesn't seem to me that 12 years later is the initial 
period of service.
    Senator Kennedy. Well, my question to you, which I guess 
I'm not going to get an answer to, is: When did it? Is 10 
years--how about 3 years, is that--
    Judge Alito. Well, I don't know exactly what the time 
limitation would be, but 12 years does seem to me not to be the 
initial period.
    Senator Kennedy. We will come back. I just want to mention, 
in fairness to my friend and colleague--both my friends, 
Senator Hatch and Senator Durbin, in Senator Hatch's quoting of 
Senator Durbin that you responded on the question of the Roe v. 
Wade in the--when you were in the circuit court, I have here 
the record that said--of the hearings of Roberts, and the 
question was asked by Senator Specter to Judge Roberts during 
the time of his consideration for the Supreme Court. So I want 
that to be--Senator Durbin can clarify the record, but I wanted 
that to be clarified so that there wasn't a confusion about it.
    Now, in the time that I have, Judge Alito, I listened 
carefully to responses that you gave to Senator Leahy about the 
CAP organization at Princeton. And I listened to other 
responses that you gave to our colleagues, and again to Senator 
Durbin earlier today. But I have just some questions on this to 
at least try to finalize, at least in my mind, and it might be 
useful in the Committee's mind as well.
    You had indicated in your 1985 job application that you 
were a member of the Federalist Society for Law and Public 
Policy and a regular participant at its luncheon and a member 
of the Concerned Alumni of Princeton University, a conservative 
alumni group. And you said yesterday that you racked your 
memory about the issue and really had no specific recollection 
of the organization. Is that correct?
    Judge Alito. I have no specific recollection of joining the 
organization.
    Senator Kennedy. And you also said yesterday and today to 
Senator Durbin that you very likely joined CAP because of your 
concern over the ROTC program being kicked off campus. Is that 
correct?
    Judge Alito. Well, what I said specifically was that I 
racked my memory as to why I might have joined, and the issue 
that had bothered me for a period of time as an undergraduate 
and in the 1980s, around the time of this--when I made this 
statement, was the issue of ROTC. This was the issue about the 
administration of Princeton that bothered me. I had a high 
regard for Princeton in many respects in general and had 
participated in a lot of their activities. But this issue 
bothered me a great deal at various times. That's what I said.
    Senator Kennedy. And, finally, you said yesterday that you 
very likely joined CAP around 1985 just before you were 
applying to the high-level job in the Justice Department under 
President Ronald Reagan. I think that is correct.
    Judge Alito. Senator, what I specifically said, as I 
recall, is that if I had done anything substantial in relation 
to this group, including renewing my membership, I would 
remember that. And I do not remember that.
    Senator Kennedy. So I want to ask a few things that I hope 
can clear this up. You have no memory of being a member. You 
graduated from Princeton in 1972, the same year CAP was 
founded. You call CAP a conservative alumni group.
    It also published a publication called Prospect, which 
includes articles by CAP members about the policies that the 
organization promoted. You are familiar with that?
    Judge Alito. I don't recall seeing the magazine. I might--
    Senator Kennedy. But you know that they had a magazine?
    Judge Alito. I have been--I have learned of that in recent 
weeks.
    Senator Kennedy. So a 1983 Prospect essay titled ``In 
Defense of Elitism'' stated, ``People nowadays just don't seem 
to know their place. Everywhere one turns, blacks and Hispanics 
are demanding jobs simply because they're black and Hispanic. 
The physically handicapped are trying to gain equal 
representation in professional sports, and homosexuals are 
demanding that Government vouchsafe them the right to bear 
children.''
    Did you read that, that article?
    Senator Feinstein. Finish the last line.
    Senator Kennedy. Finish the last line. ``And homosexuals 
are''--
    Senator Feinstein. ``And now here come women.''
    Senator Kennedy. If the Senator would let me just--
    Senator Feinstein. Yes, I--
    [Laughter.]
    Senator Kennedy. Can I get 2 more minutes from my friend? 
Just to continue along--I apologize, Judge. Did you read this 
article?
    Judge Alito. I feel confident that I didn't. If that--I am 
not familiar with the article, and I don't have a context in 
which those things were said. But they are antithetical to--
    Senator Kennedy. Well, could you think of any context that 
they could be--
    Judge Alito. It's hard to imagine. If that's what anybody 
was endorsing, I disagree with all of that. I would never 
endorse it. I never have endorsed it. Had I thought that that's 
what this organization stood for, I would never associate 
myself with it in any way.
    Senator Kennedy. The June 1984 edition of Prospect magazine 
contains a short article on AIDS. I know that we have come a 
long way since then in our understanding of the disease, but 
even for that time, the insensitivity of statements in this 
article are breathtaking. It announces that a team of doctors 
has found that the AIDS virus in Rhesus monkeys was similar to 
the virus occurring in human beings. And the article then goes 
on with this terrible statement: ``Now the scientist must find 
humans--or, rather, homosexuals to submit themselves to 
experimental treatment. Perhaps Princeton's Gay Alliance may 
want to hold an election.''
    You didn't read that article?
    Judge Alito. I feel confident that I didn't, Senator, 
because I would not have anything to do with statements of that 
nature.
    Senator Kennedy. In 1973, a year after you graduated, and 
during your first year at Yale Law School, former Senator Bill 
Bradley very publicly disassociated himself with CAP because of 
its right-wing views and unsupported allegations about the 
university. His letter of resignation was published in the 
Prospect, garnered much attention on campus and among the 
alumni.
    Were you aware at the time of that, at the time that you 
listed the organization in your application?
    Judge Alito. I don't think I was aware of that until recent 
weeks when I was informed of it.
    Senator Kennedy. And in 1974, an alumni panel including 
now-Senator Frist unanimously concluded that CAP had presented 
a distorted, narrow, hostile view of the university. Were you 
aware of that at the time of the job application?
    Judge Alito. I was not aware of it until very recently.
    Senator Kennedy. In 1980, the New York Times article about 
the coeducation of Princeton, CAP is described as an 
organization against the admittance of women. In 1980, you were 
working as an Assistant U.S. Attorney in Trenton, New Jersey. 
Did you read the New York Times? Did you see this article?
    Judge Alito. I don't believe that I saw the article.
    Senator Kennedy. And did you read a letter from CAP mailed 
in 1984--this is the year before you put CAP on your 
application--to every living alumni--to every living alumni, so 
I assume you received it--which declared Princeton is no longer 
the university you knew it to be. As evidence, among other 
reasons, it cited the fact that admission rates for African-
Americans and Hispanics were on the rise while those of alumni 
children were falling, and Princeton's president, at the time, 
had urged the then-all-male eating clubs to admit females.
    And in December 1984, President William Bowen responded by 
sending his own letter. This is the president of Princeton--he 
responded by sending his own letter to all of the alumni in 
which he called CAP's letter callous and outrageous. This 
letter was the subject of a January 1985 Wall Street Journal 
editorial, congratulating President Bowen for engaging his 
critics in a free and open debate. This would be right about 
the time that you told Senator Kyl you probably joined the 
organization. Did you receive the Bowen letter or did you read 
the Wall Street Journal, which was pretty familiar reading for 
certainly a lot of people that were in the Reagan 
administration?
    Judge Alito. Senator, I testified to everything that I can 
recall relating to this and I do not recall knowing any of 
these things about the organization, and many of the things 
that you've mentioned are things that I have always stood 
against. In your description of the letter that prompted 
President Bowen's letter, there is talk about returning the 
Princeton that used to be. There is talk about eating clubs, 
about all-male eating clubs. There is talk about the admission 
of alumni children. There is opposition to opening up the 
admissions process.
    None of that is something that I would identify with. I was 
not the son of an alumnus. I was not a member of an eating 
club. I was not a member of an eating facility that was 
selective. I was not a member of an all-male eating facility 
and I would not have identified with any of that. If I had 
received any information at any point regarding any of the 
matters that you have referred to in relation to this 
organization, I would never have had anything to do with it.
    Senator Kennedy. Do you think that these are conservative 
views?
    Judge Alito. Senator, whatever I knew about this 
organization in 1985, I identified as conservative. I don't 
identify those views as conservative. What I do recall as an 
issue that bothered me in relation to the Princeton 
administration as an undergraduate and continuing into the 
1980s was their treatment of the ROTC unit and their general 
attitude toward the military, which they did not treat with the 
respect that I thought was deserving. The idea that it was 
beneath Princeton to have an ROTC unit on campus was an 
offensive idea to me.
    Senator Kennedy. Just moving on, you mentioned--and I only 
have a few minutes left--you joined CAP because of your concern 
about keeping ROTC on campus. Now, ROTC was a fairly 
contentious issue on Princeton's campus in the early 1970s. The 
program was slated to be terminated in 1970, when you were an 
undergraduate. By 1973, 1 year after you graduated, ROTC had 
returned to campus and was no longer a source of debate. And 
from what I can tell, by 1985, it was basically a dead issue. 
In fact, my staff reviewed the editions of Prospect from 1983 
to 1985 and could find only one mention of ROTC, and it appears 
in a 1985 issue released for homecoming that year that says, 
``ROTC is Popular Once Again.'' Here is the Prospect, 1985, 
``ROTC is Popular Once Again.'' This is just about the time 
that you were submitting this organization in your job 
application.
    Judge Alito. Senator--I'm sorry.
    Senator Kennedy. Briefly, please.
    Judge Alito. It's my recollection that this was a 
continuing source of controversy. There were people on the 
campus, members of the faculty, as I recall, who wanted the 
unit removed from the campus. There was certainly controversy 
about whether students could get credit for courses, which I 
believe was a military requirement for the maintenance of the 
unit. There was controversy, as I recall, about the status of 
the instructors, whether they could be given any kind of a 
status in relation to the faculty. I don't know the exact 
dates, but it's my recollection that this was a continuing 
source of controversy.
    Senator Kennedy. Mr. Chairman, my time is running out. I 
had wanted to just wind up on a few more brief questions on 
this. But I have to say that Judge Alito, that his explanations 
about his membership in this sort of radical group and why you 
listed it on your job application are extremely troubling. In 
fact, I don't think that they add up.
    Last month, I sent a letter to Senator Specter asking a 
number of questions about your membership in CAP and I asked 
Senator Specter to make a formal Committee request for the 
documents in the possession of the Library of Congress as part 
of the William Rusher papers. Mr. Rusher was the publisher of 
the National Review, was an active founder and leader of CAP. 
Do you have any hesitation or reason for us not to look at 
those documents?
    Judge Alito. They're not my documents, Senator, and I have 
no--
    Senator Kennedy. Do you think they would be helpful to us?
    Judge Alito [continuing]. Opinion about it whatsoever.
    Senator Kennedy. Do you think they would be helpful?
    Judge Alito. Senator, I don't believe I had any active 
involvement with this group.
    Senator Kennedy. Well--
    Judge Alito. I have racked my memory and I can't recall 
anything, and if I had been involved actively in any way in the 
group, I'm sure that I would remember that.
    Senator Kennedy. Mr. Chairman, if I could have your 
attention, I think we ought to vote on issuing a subpoena to 
the custodian of those CAP records. I want to do that at an 
appropriate time. I move that the Committee go into executive 
session for the purpose of voting on the issuance of the 
subpoena of those records.
    Chairman Specter. We will consider that, Senator Kennedy. 
There are many, many requests which are coming to me from many 
quarters. Quite candidly, I view the request, if it is really a 
matter of importance, you and I see each other all the time. 
You have never mentioned it to me. I do not ascribe a great 
deal of weight. We actually didn't get a letter, but--
    Senator Kennedy. You did get a letter, are you saying?
    Chairman Specter. Well, now wait a minute. You don't know 
what I got. I am about to--
    Senator Kennedy. Of course, I do, Senator, since I sent it.
    Chairman Specter. Well, the sender--
    Senator Kennedy. I have got it right here.
    Chairman Specter [continuing]. Doesn't necessarily know 
what the recipient gets, Senator Kennedy.
    Senator Kennedy. I have got it right here.
    Chairman Specter. You are not in the position to say what I 
received. If you will bear with me for just one minute--
    Senator Kennedy. But I am in a position to say what I sent 
to you on December 22, so I renew my--
    Chairman Specter. You are in a position to tell me what you 
sent.
    Senator Kennedy. I renew my request, Senator, and if I am 
going to be denied, then I would appeal the decision of the 
Chair. I think we are entitled to this information. It deals 
with the fundamental issues of equality and discrimination. 
This nominee has indicated he has no objection to us seeing 
these issues. We have gone over the questions and we are 
entitled to get that kind of information. And if you are going 
to rule it out of order, I want to have a vote on that here on 
our Committee.
    Chairman Specter. Well, don't be premature, Senator 
Kennedy. I am not about to make a ruling on this state of the 
record. I hope you won't mind if I consider it, and I hope you 
won't mind if I give you the specifics that there was no letter 
which I received. I take umbrage at your telling me what I 
received. I don't mind your telling me what you mailed. But 
there is a big difference between what is mailed and what is 
received and you know that.
    We are going to move on now. Senator Grassley?
    Senator Kennedy. Mr. Chairman, I would appeal the ruling of 
the Chair on this. I want--
    Chairman Specter. There has been no ruling of the Chair, 
Senator Kennedy.
    Senator Kennedy. But my request is that we go into 
executive session for the sole purpose of voting on a subpoena 
for these records that are held over at the Library of 
Congress, for that purpose and that purpose only, and if I am 
going to be denied that, I would want to give notice to the 
Chair that you are going to have it again and again and again 
and we are going to have votes of this Committee again and 
again and again until we have a resolution. I think that--
    Chairman Specter. Well, Senator Kennedy, I am not concerned 
about your threats to have votes again, again, and again, and I 
am the Chairman of this Committee and I have heard your request 
and I will consider it, and I am not going to have you run this 
Committee and decide when we are going to go into executive 
session.
    We are in the middle of a round of hearings. This is the 
first time you have personally called it to my attention and 
this is the first time that I have focused on it and I will 
consider it in due course.
    Now, we will move to Senator Grassley for 20 minutes.
    Senator Grassley. We have gone over this same ground many 
times. I suppose, maybe to some extent, both sides are guilty 
of that. We have an old saying in the Midwest about if a horse 
is dead, quit beating it, and I think several horses have been 
beaten to death, particularly on the other side, and you have 
been very consistent in your answers and I thank you. I think 
that that speaks to the intellectual honesty of your positions.
    It is kind of like we are in the fourth quarter of a 
football game and you are the quarterback and your team is way 
ahead here in the fourth quarter. Opponents are very desperate, 
trying to sack you, and aren't doing a very good job of it. 
They haven't hit you all day now for 2 days. You are going to 
keep getting these last-minute ``Hail Marys'' thrown at you, so 
just bear with us.
    I want to compliment you, first of all, before I ask some 
questions, and I just did to some extent about the consistency 
of your testimony, but I think it has been good. I think under 
very difficult circumstances, you have handled yourself very 
well, being responsive, forthright, thoughtful. I sense in you 
a person that is very sincere, and obviously, I don't know you 
except this appearance here and the small period of time we 
spent in my office. It seems like you have modesty. That is a 
breath of fresh air, demonstrating a command of and very much a 
respect for the law and the Constitution, of course.
    This is all stuff that we ought to be looking for in the 
tradition of Alexander Hamilton saying the role of the Senate 
is to make sure that only competent people get on the Court and 
that political hacks don't get on the Court. You are surely no 
political hack and you are very competent, and that has been 
demonstrated with your fair and open-minded approach to your 
being a judicial person.
    It is too bad that we are getting this misconstruing of 
your record or the answers, the claim that you have not written 
a single opinion on the merits in favor of a person of color 
alleging race discrimination on the job in your 15 years on the 
bench. I have looked at a lot of opinions you have given and it 
is just not true. Your record shows that you ruled in favor of 
minorities making allegations of racial discrimination in 
employment, not once but in a number of cases.
    The claim that you acted unethically in the Vanguard case 
just is not true. You did nothing improper and actually went 
beyond the rule to ensure compliance. The claim that you would 
support an unchecked Executive is just not true. Your record 
shows that you have repeatedly ruled against the government and 
that you have told us no one, including the President, is above 
the law.
    The claim that you have ruled the vast majority of the time 
against the claims of individual citizens in favor of the 
government and large corporations is just not true. The 
reality, as I see it, is that you have found in favor of the 
little guy in numerous cases, but because of who was right and 
who was wrong, not just because you have got a bias one way or 
the other. Your critics are, I think, grasping at any straw to 
tarnish your record, and that is unfortunate.
    Judge Alito, in your opening statement, you said, and I 
hope I quote you accurately, no person in this country, no 
matter how high or powerful, is above the law, and no person in 
this country is beneath the law. You didn't go into detail 
about what you meant. I think it is quite clear, above the law, 
but give us that diverse opinion, above the law versus beneath 
the law.
    Judge Alito. Every person has equal rights under the law in 
this country, and that involves people who have no money--that 
includes people who have no money. That includes people who do 
not hold any higher or prestigious position. It includes people 
who are citizens and people who are not citizens. Everybody is 
entitled to be treated equally under the law, and I think 
that's one of the greatest things about our country and about 
our legal system.
    Senator Grassley. You have been criticized for being 
hostile to voting rights based upon a statement that you wrote 
20 years ago when you were applying for a job with the Justice 
Department during the Reagan years. In fact, yesterday, some of 
my colleagues repeated that assertion, but it is apparent to me 
that it is off the mark.
    Specifically, in your 1985 statement, you wrote that you 
became interested in constitutional law and went to law school 
in part because you had some disagreements over Warren Court 
decisions, including some regarding reapportionment. Of course, 
that is understandable because the Warren Court had handed down 
very many decisions on reapportionment and they had been 
criticized as unworkable and that, in fact, the Supreme Court 
backed away from some. So there was disagreement, there was 
debate over those issues at that time, probably a lot less 
today but still recently there is going to be a case going to 
the Court.
    Some have questioned your 1985 statement regarding 
electoral reapportionment, that is how districts are drawn. 
They have suggested that you are hostile to the principle of 
one person/one vote. Clarify for me. Nowhere in your 1985 
statement did I find that you wrote that you ever disagreed 
with the principle of one person/one vote, did you?
    Judge Alito. I never disagreed with that principle, 
Senator. What I disagreed with when I was in college was the 
application of the principle in some of the--the elaboration of 
the principle in some of the late Warren Court decisions, and 
this grew out of my father's work with the New Jersey 
legislature. He had been the Secretary to the State 
Constitutional Convention in 1966, which redrew the provisions 
of the State Constitution relating to the composition of the 
legislature in an effort to bring it into compliance with the 
one person/one vote standard.
    These provisions, however, because they tried to respect 
county and municipal lines, as I recall, resulted in population 
deviations of under 10 percent, but those deviations were much 
higher than the ones that the Supreme Court said in the late 
decisions that I'm talking about would be tolerated regarding 
congressional districts. There was a belief that that principle 
would be applied across the board, both to congressional 
districts and to legislative districts, and that would have 
wiped out the plan that had been adopted. And I was quite 
familiar with all of this, and it seemed to me an instance of 
taking a good principle, which is one person/one vote, and 
taking it to extremes, requiring that districts be exactly 
equal in population, which did not seem to me to be a sensible 
idea.
    Senator Grassley. Isn't it true that the words ``one 
person/one vote'' weren't even in your statement?
    Judge Alito. Those words are not in my statement.
    Senator Grassley. Just to make--go ahead.
    Judge Alito. Just to add, Senator, that this issue of how 
nearly exact the districts had to be was an issue that was 
working its way to the Supreme Court or maybe it had actually 
been there--I've forgotten the exact chronology--at the time of 
the 1985 statement in Karcher v. Daggett, which involved the 
New Jersey Congressional districting plan.
    Senator Grassley. Well, just to make sure that there is no 
lingering confusion then, let me ask you straight out: Do you 
believe in the principle of one person/one vote?
    Judge Alito. I do. I think it's a fundamental part of our 
constitutional law.
    Senator Grassley. I find it curious that the same people 
who are questioning your integrity are either asserting or 
implying that you took a position against the principle of one 
man or one person/one vote when it is demonstrably false that 
you ever did.
    Further, on another point, some have suggested that you are 
hostile to women and minorities. Obviously, I don't think that 
is the case. I think you have demonstrated that sincerity in 
just very recent statements today.
    Now, in the Washington Post article, Alberto Rivas, a 
criminal defense lawyer and a Democrat, said you ``took steps 
to diversify an office''--this is when you were U.S. Attorney. 
You ``took steps to diversify an office that had a reputation 
as something of a white boys' club.'' Rivas said that when you 
hired him at the U.S. Attorney's Office in New Jersey, he was 
the only Latino lawyer in the office, and by the time you left 
that office, Rivas said there were four Latino lawyers as well 
as African-American lawyers. Your commitment also included 
advancing women attorneys and promoting them into senior 
positions during your tenure as U.S. Attorney. And I understand 
that when you started in that office, only two of the 15 
divisional leadership attorneys, chiefs or deputy chiefs, or 
attorneys in charge were women, and 2 years later you had more 
than doubled that number, and 5 of the 17 divisional leadership 
attorneys were women.
    Now, on the Federal bench, you have hired many women and 
minorities to serve as law clerks, and you had a discussion 
with Senator Brownback earlier mentioning some very 
complimentary things that Cathy Fleming, your former deputy 
chief and acting chief of the Special Prosecutions Unit in the 
New Jersey office, and David Walk, a former lawyer in that 
office, had to say about you and your treatment of women and 
minorities. They both, being lifelong Democrats, vouched in 
those statements for your qualities as a judge and your respect 
for individual rights.
    And, Mr. Chairman, if these letters--and they may have 
already been put in the record, but if they aren't in the 
record, I would like to have those put in the record.
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Grassley. Several of your dissents have been 
referred to today, or in the last 2 days, and so I wanted to 
comment on this suggestion that you are way out of the 
mainstream because you have written a lot of dissenting 
opinions. I don't find that you have written so many as a 
percentage of your total thing, but whatever reason you did it, 
you did it with good reason.
    But judges disagree all the time, and that is to be 
expected, and obviously there is nothing wrong with that. And, 
in fact, the Supreme Court has agreed with your dissents on 
several occasions, I recall from reading a synopsis of your 
opinions, and the reality is, as I see it, you don't disagree 
with majority opinions more frequently than most Federal 
appeals judges do in similar cases. And of more than 4,800 
cases--and that we got from the Washington Post. But of more 
than 4,800 cases that you decided during your tenure on the 
Third Circuit, you dissented only in 79 cases, which would be 
only 1.6 percent of all those cases.
    So, you know, I don't think that there is anything very 
extraordinary about the number of dissents or the dissents, and 
particularly when the Supreme Court has agreed with your 
opinion in reversing the Third Circuit.
    I would like to go to the issue of some historical basis 
for our constitutional law. The role of historical precedent in 
constitutional laws I find very interesting. For example, qui 
tam lawsuits have been a feature of Anglo-American law since 
the Middle Ages and have been a common feature of Federal 
statutory law even since the 1st Congress. Yet their 
constitutionality has never been clearly adjudicated by the 
Supreme Court.
    What role does longstanding, historical practice play in 
assessing the constitutionality of a Government act or 
practice?
    Judge Alito. Well, it can be very relevant in many 
instances. One place where this has come up is when a statute 
was passed by the 1st Congress--and this has happened on a 
number of occasions. The 1st Congress, which was responsible 
for the Bill of Rights, passed a number of statutes relating to 
provisions of the Bill of Rights, and the Supreme Court has 
often looked to those and said this is the same Congress that 
proposed the Bill of Rights, and they did this in enacting a 
statute, so that gives us a good indication of what they had in 
mind. And when there has been a legal practice that has existed 
for--that predated the Constitution, then that certainly is 
relevant in considering its constitutionality.
    Senator Grassley. I would like to have you think about 
legislative history and how you might use it or how often you 
might use it, or even how often--maybe if you got a rough 
quantifiable answer, how often you might use it. The Supreme 
Court, I think, has quite often stated legislative history of a 
particular bill would be critical in their interpretation of 
it. What is your position with respect to legislative history? 
How important is it to you? And how have you utilized history 
in interpreting statutes?
    Judge Alito. I have often looked to legislative history in 
the cases that I've written concerning statutory 
interpretation. And I think if anybody looks at those opinions, 
they will see that.
    When I interpret a statute, I do begin with the text of the 
statute. I think that certainly is the clearest indication of 
what Congress as a whole had in mind in passing the statute. 
And sometimes the language of the statute is dispositive and it 
is really--the decision can be made based on the language of 
the statute itself.
    But when there is an ambiguity in the statute, I think it 
is entirely legitimate to look to legislative history, and as I 
said, I have often done that. I think it needs to be done with 
caution. Just because one Member of Congress said something on 
the floor, obviously that doesn't necessarily reflect the view 
of the majority who voted for the legislation. So it has to be 
done carefully and I think with a realistic evaluation of the 
legislative process, but I'm not one of the judges who thinks 
that you should never look to legislative history. I think it 
has its place.
    Senator Grassley. Are you familiar with the legal arguments 
that some opponents of the False Claims Act have made to the 
effect that its qui tam provisions are unconstitutional under 
Articles II and III? And if you are, do you have any opinion on 
those arguments that are used without prejudicing any review of 
it you might give?
    Judge Alito. Well, the issue hasn't come up before me. I 
have a little bit of familiarity with the arguments. And I 
don't think I--I think that all I can say on the question is 
that the qui tam statute is of historical origin, as you 
pointed out, and we have seen what it has produced in terms of 
tangible results in the cases that have been brought under the 
statute in recent years. And should an issue relating to its 
constitutionality come before me, either on the Third Circuit 
or the Supreme Court, then I would have to follow that whole 
judicial process that I've described and evaluate the arguments 
and certainly study the question much more thoroughly than I 
have done up to this point.
    Senator Grassley. You may have just answered this question, 
but I would like to get it explicitly on the record. Have you 
ever written or spoken publicly about the issue of the 
constitutionality of qui tam or any other provision of the 
False Claims Act, and if so, the circumstances and the context?
    Judge Alito. I'm quite sure I've never written or spoken 
about its constitutionality.
    Senator Grassley. Do you feel that you have any bias 
against the False Claims Act or Whistle-Blower Protection Act 
that would impact the ability of you to fairly decide cases 
involving those issues?
    Judge Alito. I certainly don't, Senator.
    Senator Grassley. I would like to ask you about the opinion 
you authored in Mystic. As author of the legislation that we 
call the False Claims Act, it has returned billions of dollars 
to the Federal Government and has become a very effective tool 
in combating fraud against the American taxpayers. So I follow 
court cases on this as much as I can.
    The False Claims Act contains a provision that 
jurisdictionally bars lawsuits based on public disclosure, 
including such things as administrative reports and 
investigations. The purpose of this provision is to prevent an 
individual who has read about a description of a fraud in a 
newspaper report, public document, or Government report from 
simply taking that material and using it as a basis for a case.
    In Mystic, the qui tam relater had made a FOIA request and 
utilized some of the documents he received in response to FOIA 
in filing that qui tam case. In your opinion, you determined 
that the qui tam relater had based his False Claims Act lawsuit 
on public disclosure made in an administrative report or 
investigation. To come to that conclusion, you had to equate 
that the qui tam relater, who was acting on behalf of the 
Government, as the public. But I think it is clear that 
Congress did not equate such qui tam relaters with the public 
when it wrote the public disclosure bar provision. That is 
because if Congress had done so, then everything qui tam 
relaters know is known to the public, which doesn't make any 
sense.
    So because my time has run out, I don't want to go on with 
a question, but do you see what I am getting at? Could you 
react to that?
    Judge Alito. I do, and I understand that's a very strong 
argument. I remember that I found that a very difficult issue 
to deal with, and I spent a lot of time on it, and my view of 
the matter elicited a strong and a very persuasive, I think, 
dissent by one of my colleagues. So it is a tough issue, and if 
that were to come up again, I would have to really reconsider 
it.
    Senator Grassley. Just in your last sentence, you gave 
pretty much the same answer that Judge Roberts did. He had 
dissented in a case, too, and it kind of worries me when we get 
two of you on the Court that may be unfamiliar with 
congressional intent on false claims.
    Thank you very much.
    Chairman Specter. Thank you, Senator Grassley.
    That will be all. We will recess until 2 o'clock.
    Senator Kennedy. Mr. Chairman?
    Chairman Specter. Yes, Senator Kennedy?
    Senator Kennedy. Just as a quick matter of personal 
privilege, I would like to include in the record the response 
from your staff to this letter that I wrote to you on the 22nd 
and also my staff response to your staff's response to the 
letter, include them in the record.
    Chairman Specter. Like all requests, unanimous consent for 
the record, they are granted.
    Senator Durbin. Mr. Chairman? Mr. Chairman?
    Chairman Specter. Senator Durbin?
    Senator Durbin. Mr. Chairman, I--
    Chairman Specter. I just want it known that we are now into 
the lunch hour, but go ahead, Senator Durbin.
    Senator Durbin. Mr. Chairman, I sent you a note and you 
were kind enough to come and speak to me about it. I would just 
ask for 2 minutes time to respond to comments made by members 
of the Committee mentioning my name after I asked questions 
this morning. You have asked if I would wait until Senator 
Coburn returned to the Committee, and in deference to the 
respect to my colleague, I will do that.
    Senator Leahy. Could I also, Mr. Chairman, on this--
    Chairman Specter. Well, I appreciate it very much, waiting 
for Senator Coburn. I think it is a good practice, when 
comments are made about other members, to do it while they are 
here or to ask their joinder. And that is why if you have 
something to say to Senator Coburn, I want him here; otherwise, 
he will have something to say and you are not here.
    Senator Leahy. In fact--
    Senator Durbin. He did already, Mr. Chairman.
    Chairman Specter. Now Senator Leahy is recognized into the 
lunch hour.
    Senator Leahy. Into the lunch hour. Mr. Chairman, if I 
might, I came very close to objecting when Senator Coburn was 
speaking and referring to Senator Durbin. Senator Coburn is a 
new--he is a valued member of the Committee, of course but new, 
and I wanted to say that I have been here for 30 years. I have 
always made it a point, if I am going to raise something, to 
get word to the other party. I think it is a good way of doing 
it, and you have been totally fair in that.
    I would urge Senators, if they are going to start quoting 
each other, that maybe we have ``quote time'' or something like 
that. Senator Durbin is absolutely right in wanting to be able 
to respond to what was said.
    Chairman Specter. Well, I think that we might agree on best 
practice, but when you deal with Senators, my view is to give 
Senators great latitude as to what they want to undertake to 
do. And if Senator Coburn wants to make a comment without 
Senator Durbin here, I think that is going to be his call, 
although my preference would be to the contrary. But when 
Senator Durbin wants time to respond, I immediately sent word 
to him he would have the time that he requested. And then I 
sent for Senator Coburn. And Senator Coburn is in a meeting 
that he couldn't leave, but we will get the two of you together 
fairly promptly.
    Senator Durbin. Thank you.
    Chairman Specter. Lunchtime.
    [Whereupon, at 1:05 p.m., the Committee was adjourned, to 
reconvene at 2 p.m., this same day.]
    [AFTERNOON SESSION]
    Chairman Specter. The Committee will resume, and it is now 
Senator Biden's turn for his second round for 20 minutes.
    Senator Biden?
    Senator Biden. Thank you very much, Mr. Chairman.
    Judge, good to see you. As I said to you--we happened to 
run into each other in the hallway coming in--what I would like 
to do, if I may, is go back and revisit two areas that you were 
questioned on yesterday, and a little bit maybe today. I do not 
recall actually. I think it was yesterday. One is the Casey 
case and I want to make sure I understand because I am still a 
little bit puzzled by your reasoning, but let me start off and 
make it clear.
    From my perspective, the abortion is a different--I am 
trying to figure out how you arrived at interpreting a Supreme 
Court Justice's standard that was being applied, and how it 
came out differently than others. Yesterday you said when I 
think it was Senator Kohl asked you, that you agreed with 
Justice O'Connor, ``that you look at the group that's affected, 
not the group that's unaffected.'' But when you wrote your 
dissent, you said, and I quote, ``It seems safe to assume that 
some percentage, despite an initial inclination not to tell 
their husbands, would notify their husbands without suffering 
substantial ill effects, acknowledging some would suffer 
substantial ill effects.''
    Can you rationalize yesterday's statement and your dissent 
for me? Explain it to me.
    Judge Alito. Well, I think what you look at is the group 
that is required to notify. You don't look at the group that's 
not required to notify, so unmarried women are not examined 
here because the notification requirement obviously does not 
apply to them.
    Then my understanding of Justice O'Connor's standard, which 
was the ``more than some woman'' standard, let me put it that 
way, although she didn't put it quite that strongly. She said 
that it is insufficient that some women are inhibited from 
having an abortion as a result of the requirement. So you look 
at the people who are affected by--who are within the scope of 
the provision, and then you would see how many of the people 
within the scope of the provision would be inhibited from 
having an abortion as a result of what was involved. You don't 
look at people who aren't regulated at all, and you don't just 
look at the people who would be inhibited because both of those 
would not be the right thing to look at.
    So in the case of--let's take the case of the informed 
consent requirement. You'd look at everybody who was required 
to receive the information that was within the informed consent 
provision, and then you would ask how many of the people, how 
many of the women who were regulated by this, would be 
inhibited from having an abortion as a result of the 
requirement. That was my understanding and that is my 
understanding of what she was talking about.
    Senator Biden. You referenced in your dissent in Casey the 
Thornburgh case. What was the issue in Thornburgh?
    Judge Alito. Thornburgh concerned--
    Senator Biden. Excuse me. That prompted her to come up with 
the statement that you referenced, which was that it does not 
have to affect everyone?
    Judge Alito. Well, she was setting our her understanding of 
what the standard was, of the Undue Burden Standard. Now, in 
Thornburgh there were several provisions of a previous version 
of the Pennsylvania statute at issue. There was an informed 
consent provision, as I recall. There was a provision relating 
to health insurance. There was a provision relating to 
notification of a minor's parents. There were a number of 
provisions involved. And my recollection is that when she made 
the statement, she was talking about the Undue Burden Standard 
itself. It was an explanation of what she meant by the Undue 
Burden Standard.
    Senator Biden. As I went back and read it, my understanding 
was--and I will not, in the interest of time, read her entire 
two paragraphs here--but the part of Casey which she found to 
be a particular problem as being declared unconstitutional by 
her colleagues was where a doctor, an obstetrician would have 
to read to a woman certain verbiage that would explain the pros 
and cons about an abortion, or at least downsides of an 
abortion. And she said the State has an interest in promoting 
life, and so even though some women might be offended by that, 
it was still OK, it was still constitutional.
    That language is the language that the discussion about 
even though some women would be affected, you transposed, in 
good conscience, to a case where notification to a husband was 
required. And one of the things that I had some difficulty with 
is whether or not there really were comparable issues here. In 
one case it was about whether or not a woman would fear for her 
life, for example, an exception was given, if she informed her 
husband. Another case, it was not about that that O'Connor was 
referring to, she was referring to about whether or not it put 
an undue burden on a woman to be told, ``By the way, this can 
happen when you have an abortion, and this is the state the 
fetus is, et cetera.'' And that is the part that kind of 
disturbs me, or that perplexes me anyway, about the real world 
here.
    Senator Specter references the Violence Against Women Act. 
We did a lot of work on that. There is overwhelming evidence 
that there are women who would be fearful of going home and 
telling their husbands they are going to have an abortion, not 
fearful physically, fearful that the husband had all the 
economic power and said, ``I am divorcing you and I am taking 
the kids and having a custody battle, and you don't have the 
money to hire a lawyer.''
    Are they comparable ill effects? That is, that kind of ill 
effect on a woman that if she tells her husband, he is going to 
sue for divorce and seek custody of the children, knowing that 
he has all the economic horsepower and she has no ability to go 
out and hire a significant lawyer? Is that comparable to the 
doctor saying, ``By the way, if you have an abortion, here is 
what happens?''
    Judge Alito. No. The informed consent provision presented 
an easier--easier isn't even the right word--a less difficult 
question than the spousal notification provision. I don't think 
there's any question about that. They both involved the same 
standard, which was the Undue Burden Standard. And therefore, I 
thought--and I still think that's what's said in reference to 
one provision is relevant in determining what the standard was.
    The big issue, when this case was before us, was whether 
the standard was undue burden or not. It's funny how cases look 
different after they've progressed through the Supreme Court 
than they do when they're first presented to the court of 
appeals. That was the most hotly contested argument before us. 
Had there been any change in the Supreme Court's case law--and 
the plaintiffs argued strenuously that there had not--but our 
panel, after some effort, determined under the Marks standard 
for determining what the holding of a case is when there's no 
majority opinion, that the standard was the Undue Burden 
Standard. And there just wasn't a lot to go on. I think I said 
that yesterday. I looked for whatever guidance I could find.
    Senator Biden. Again, I am not questioning the sincerity of 
your search. Again, it gets down to the thing that keeps coming 
up with me, is not that you do not care about the little guy 
and all of that, that your reading of statutory language, 
Supreme Court precedent, the Constitution, seems to me to not 
reflect some of the genuine real-life differences that exist. 
The idea that you acknowledged that some women would suffer ill 
effects, substantial ill effects from informing their husbands, 
but because it was only a small percentage that met the Undue 
Burden test, that did not meet the Undue Burden test, it seems 
to me--
    Anyway, the majority disagreed with you, and I happen to 
disagree with you because I guess maybe it is because we have 
been so exposed to how so many women are within their 
relationships can suffer significant consequences for 
challenging a position that their husband does not want to 
accept, whether it has to do with abortion or what school their 
child goes to, and it is pretty consequential. But that is my 
problem with how you arrived at your reasoning--or your 
reasoning how you arrived at your conclusion.
    Let me move on to another area in the interest of time 
here. Yesterday there was discussion about the Family and 
Medical Leave Act, and you correctly stated there were two 
distinct parts of the Act, and the Hibbs case dealt with one, 
and Chittister dealt with another. Can you explain that again 
for me?
    Judge Alito. Yes. Hibbs concerned a provision that required 
employers to give employees leave to be out of work to take 
care of a family member. And there was a record that employers, 
State employers had given more leave for this purpose to women 
than they had to men, and that was based on the stereotype that 
when somebody in the family gets sick and somebody has to leave 
work to take care of the family member, it's the woman and not 
the man, and it reinforced the stereotype, of course, because 
having such a policy would encourage, would put pressure on 
women to leave for this purpose, as opposed to the man. If 
there was a woman and a man in the family, and somebody had to 
leave work to take care of a sick family member, and you have a 
plan like this, this is going to pressure the woman to do that. 
So the Hibbs court found that that was a sufficient record of 
gender discrimination to justify the passage of legislation 
under Section 5 of the 14th Amendment.
    Chittister concerned a provision that related to leave for 
personal illness, and there's no reason to think that men or 
women get sick more often one than the other, or what was to 
the point, that State employers had given men more sick time 
than women, or women more sick time than men. And so with that 
record, it was the conclusion of my court, and I believe seven 
other circuits, that this was a different issue. These cases 
were decided before and after Hibbs and that could not be 
justified if you accept the Congruence and Proportionality 
Standard.
    Senator Biden. On the Congruence and Proportionality 
Standard, we in the Congress thought we were speaking to that 
because were you aware or your colleagues--speak for yourself, 
actually, you cannot speak for them--that one in four people 
taking sick leave under the Act are women for pregnancy-related 
disabilities? That we, when we wrote the law, we said 
explicitly that working women, we wanted the bill to protect 
working women from the dangers that pregnancy-based 
distinctions could be extended to limit their employment 
opportunities. I mean the practical world is that a fair number 
of women who are pregnant are told in the last--and I yield to 
my doctor at the end of the dais on the other side--but it is 
not unusual for a woman to be told that she needs to, the last 
month of pregnancy or 2 months of pregnancy, have bed rest. And 
if that counts against her 12 weeks, employers--we did 
establish there is a record where employers say, ``Hey, look, 
man, we are going to give men and women the same leave, 
notwithstanding the fact that women in fact in many 
circumstances--and one in four of them are pregnancy-related--
need more time because of the pregnancy.'' I mean was that 
discussed by you guys or women?
    Judge Alito. I'm quite certain it never was. I would have 
made a reference to it in the opinion if that had been 
mentioned. I am not aware of that coming up in the other 
circuit opinions on the issue. We are, to a degree--we can't 
know everything about the real world, and we're dependent on 
the arguments that are presented to us to a degree. I don't 
believe that argument was ever presented.
    Senator Biden. Congress expressly stated that the purpose 
of the Act was, quote, ``to minimize the potential for 
employment discrimination by ensuring generally that leave is 
available for eligible medical reasons, including maternity-
related disability.'' That is why the decision confuses me. I 
think all you probably have to do is turn to your wife and say, 
``Hey, the real world, when you are pregnant does that sometime 
inhibit the amount of time you are required to be away from 
your job?'' Fortunately, most women, like my wife and my 
daughter-in-law, work up to the time, but a lot cannot.
    Let me suggest also, as I said to you in the hallway, I 
want to kind of set the record straight on Princeton. One of 
the reasons why I am perplexed and many of us are perplexed by 
your answers regarding the CAP, the organization, is that it 
does not fit with your background. As we both said in the 
hallway, I read your opening statement again, where you said 
that ``a generation earlier I think that somebody from my 
background probably would not have felt fully comfortable at a 
college like Princeton.'' And I pointed out to you I am about 
10 years older than you, that is how I felt. That was what I 
was referencing yesterday about my, you know, Irish-Catholic 
kid from Claymont.
    And the thing that surprises, or at least puzzles, me is 
that it was kind of, I thought, it was a pretty widely known 
debate that in the Ivies, the one sort of last holdout, 
fighting to not admit as many women and fighting not to admit 
as many minorities, was Princeton. There was a whole battle 
over it, as you heard referenced in terms of the Wall Street 
Journal and mailings to alumni.
    And I noticed someone in the press. I want to be able to 
wear the hat given to me by pointing out that the reason I can 
wear this hat proudly today after being on campus as much as I 
have at Princeton is today, 28.7 percent of Princeton's 
undergraduate population is minority, and today, the class of 
2005, 47 percent--47 percent--are women. So that is what that 
battle was all about, a lot of us thought. I would be proud if 
my daughter were at Princeton Graduate School instead of Penn 
now, although I am very proud she is at Penn, but that is what 
this debate was about, Judge, and that is why it still confuses 
me.
    I am going to ask you a straightforward question and I hope 
it doesn't offend you. Did, when you listed CAP, was part of 
your rationale for listing it in an application you thought 
that would appeal to the outfit you were applying to, the 
people looking at your resume?
    Judge Alito. Well, Senator, as I said, I don't have a 
recollection of having anything to do with CAP, so all I can 
say is that I put it down on the '85 form and therefore I must 
have been a member at around that time, and that's--I can't--
    Senator Biden. I am not even suggesting about whether you 
were or were not remembering. Was part of the reason--I am 
looking for a reason. I am looking to be able to say--because 
you don't impress me as someone, especially from your 
background, that would want to keep Princeton as--I won't go 
back and read the quotes--keep Princeton as, you know, imagine 
my father's 50th reunion, having 40 percent women, isn't that 
awful. You don't impress me as belonging to that club.
    Judge Alito. Well, I wasn't.
    Senator Biden. So the only explanation I can think of--and 
you are not. You are a very informed guy. I mean, you are 
sitting up there in North Jersey as a U.S. Attorney. As I said, 
it is in the Wall Street Journal. It is a debate going on. You 
are getting letters. The only thing I could figure is you 
figured that a relatively conservative Reagan administration 
Justice Department would say, hey, maybe that is the kind of 
guy I want. I can't understand why else you would put it down. 
But if that is not the reason, if you just listed the outfits 
you belong to, that still perplexes me, but anyway--
    Judge Alito. Well, Senator, I wasn't a member of that club 
as you refer to it. By the time I entered Princeton, there were 
many minorities in my class. The practice of not including 
minorities had ended, and my class was not coeducational when 
we were admitted, and as I said yesterday, I had never 
previously attended a non-coeducational school--
    Senator Biden. You had about 300 women, if I am guessing 
right, when you got admitted, roughly. When were you admitted?
    Judge Alito. I was admitted in 1968. It was not 
coeducational. It went coeducational while I was there--
    Senator Biden. In 1971, 1970-71, there were 300 women. Now, 
there are 2,100 in that same class.
    Anyway, I thank you very much, Judge. I yield the floor.
    Chairman Specter. Thank you very much, Senator Biden.
    We now have both Senator Durbin and Senator Coburn present. 
Senator Durbin, you have asked for 2 minutes as a matter of 
personal privilege.
    Senator Durbin. Thank you very much, Mr. Chairman, and I 
will make it brief.
    Chairman Specter. You have 2 minutes.
    Senator Durbin. In a courtroom and in a Committee room, it 
is not unusual to try to rehabilitate a witness. When hard 
questions are asked, people come back with information. Mr. 
Gillespie and his team are down there providing information, as 
are others. It is perfectly acceptable. We would do the same 
thing if the shoe were on the other foot.
    Two personal references to me were made after I left the 
room, and I apologize for leaving the Committee room. One 
related to the fact that I had earlier been in the pro-life 
position in my political life, and it is true. I made reference 
to this in my opening statement. I have stood for election more 
than 12 times in the House and the Senate, general and primary, 
stating my position as pro-choice, so the voters of Illinois 
know that.
    I had asked Judge Alito whether his position had changed 
from 1985. That was the nature of my questions to you this 
morning. I don't consider that to be a shortcoming if you would 
concede it changed, although at this point, you have not made 
that concession. Abraham Lincoln was once accused of changing 
his position on an issue and he said, I would rather be right 
some of the time than wrong all of the time, and so I don't 
think changing your mind is necessarily condemnation.
    The second point I would like to make specifically is my 
reference to settled law. Roe v. Wade is settled law, and I am 
sorry that Senator Hatch is not here at the moment, but I would 
like to read into the record exactly what was said on September 
13, 2005, before this Committee when Senator Specter said, 
Judge Roberts--
    Chairman Specter. Does this involve Senator Hatch, Senator 
Durbin?
    Senator Durbin. It does. Senator Hatch raised the question 
that I had said--
    [Laughter.]
    Senator Durbin [continuing]. That this position--
    Chairman Specter. Shouldn't we have Senator Hatch here?
    Senator Durbin. If you want to wait, I will wait.
    Chairman Specter. Yes, I would like to wait until Senator 
Hatch arrives. That way, we may be able to conclude this not in 
2 minutes, but in less than 2 hours.
    I have made inquiries on the Rusher issue over the lunch 
hour, and I have some things to say about it, but I am not 
going to say them until Senator Kennedy arrives--
    [Laughter.]
    Chairman Specter. --so I have asked staff to inform Senator 
Kennedy that I await his arrival.
    In the meantime, if it pleases this august body, we will 
proceed with the hearing. Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. I do want to tie some 
loose ends up and one of them makes reference to something 
Senator Kennedy read. Would it be OK if I proceed with that? I 
think it would be fine. This has to do with this last matter 
that Senator Biden was also discussing and that is the 
Princeton alumni group.
    Just to make sure that the key facts are understood here, 
you believe you joined, Judge Alito, around 1985 because of a 
concerned threat to ROTC at Princeton University, is that 
correct?
    Judge Alito. Well, Senator, I don't recall joining, but I 
do remember that that was the issue relating to the 
administration that was bothering me for a period of time, 
including that period.
    Senator Kyl. And just for the record, Mr. Chairman, I would 
ask unanimous consent to insert a quotation from the Princeton 
packet. I will just quote it here. Prospect editor Denise 
DeSouza added that CAP is concerned about the formation of a 
third-world center, a campaign to eliminate the Army ROTC 
program, and what it perceives as the decline of Princeton 
athletics.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. Second, on this matter, and I refer to this as 
the very scurrilous material read by Senator Kennedy, I suspect 
we would all agree was scurrilous material, had you ever heard 
of any of that material that he read a while ago before today?
    Judge Alito. No, Senator.
    Senator Kyl. I believe you said you vehemently disagreed 
with it, is that correct?
    Judge Alito. I do. I deplore those things.
    Senator Kyl. And would disavow it?
    Judge Alito. I disavow it. I would never associate myself 
with those things.
    Senator Kyl. Did you know that such things had been 
published by the PAC when you were a member of it, or when you 
joined it?
    Judge Alito. Absolutely not. I would never be a member of 
an organization that took those positions.
    Senator Kyl. OK. And also, Mr. Chairman, unanimous consent 
for the record to contain the disclaimer which the editors of 
the Prospect include in the magazine. It reads, ``The 
appearance of an article in Prospect does not necessarily 
represent an endorsement of the author's beliefs by the 
Concerned Alumni of Princeton.''
    Chairman Specter. Without objection, it, too, will be made 
a part of the record.
    Senator Kyl. OK. Now let us return to your 15 years as a 
judge and how matters might come before you in the U.S. Supreme 
Court. I just wanted to also refer to something that I put in 
the record yesterday. It is a very difficult thing to look at 
4,000 cases and conclude that, when you have ruled on both 
sides of issues depending upon different fact situations, as we 
have talked about before, that you necessarily favor one side 
or the other. One of the areas of concern was in the area of 
discrimination. I just want to read one sentence of what I 
inserted in the record yesterday regarding employment 
discrimination and see if you have any other comment on it.
    A 2003 study of employment discrimination claims in Federal 
court found that Federal appeals court judges sided with 
employment discrimination plaintiffs in only 13 percent of the 
cases. Judge Alito's record of four out of 18, or 22 percent, 
is actually more favorable to plaintiffs. Do you know that to 
be incorrect or do you have any other comment on it?
    Judge Alito. I don't know--I'm not familiar with the 
statistics. The way the appeals system is set up, the types 
of--I think that's what results in the statistics that you 
mentioned, the low rate of success for plaintiffs, because 
these cases are generally cases in which summary judgment has 
been granted for the defendant. If the district court denies 
summary judgment for the defendant, then the case will go to 
trial and very often is settled, or there's a trial and then 
there's no appeal after the trial. So the cases that we get, 
most of the cases that we get are cases that have been looked 
at by a conscientious district judge and found not to be cases 
that should go to trial and I think that's what produces those 
statistics.
    Senator Kyl. And that's an interesting lesson, I think, for 
all of us, to be able to explain why certain cases come to 
courts and why they would be more on one side than the other. 
It is an important lesson, I think, both for lawyers and non-
lawyers to appreciate that kind of dynamic, because otherwise, 
if you just look at raw statistics and don't know the 
background, you could come to different conclusions. So I 
appreciate that.
    In another area, it is apparent to me that you are simply 
not going to be able to satisfy some of my colleagues because 
you will not absolutely commit to rule the way that they want 
to on a couple of key issues, for example, on the issue of 
abortion. You have repeatedly confirmed the significance in the 
role of precedent, in this case, Roe v. Wade. You also noted 
situations in which, as a Third Circuit Court judge, you 
adhered to the Roe v. Wade precedent.
    But you have declined to announce your constitutional view 
of Roe today, despite repeated attempts by some of my 
colleagues to get you to do it in these hearings. Implied in 
your answer is the point that to do that here would commit you 
to a particular result, something you cannot ethically do. Are 
there cases regarding abortion that you believe may come before 
the U.S. Supreme Court?
    Judge Alito. There certainly are cases that may come before 
the Supreme Court. There is a case involving abortion before 
the Court this term, and they come up with some regularity. 
Many of them involve the application of Roe. Most of them 
involve the application of Roe or the application of other 
precedents that build on Roe. But it is entirely possible that 
a case involving Roe itself could come up at some point in the 
future.
    Senator Kyl. Now, I said in my opening statement that I 
would defend your right to decline to say in advance how you 
would rule on matters that could come before you, but kind of 
along the same lines that you did a moment ago, perhaps you 
could tell us the reason for the rule, in other words, to 
elaborate on the damage that would be done if judges indicate 
in advance how they might rule on cases. What is the reason for 
that rule?
    Judge Alito. In my mind, the most important reason is that 
to do that would undermine the entire judicial decisionmaking 
process. We have a process for deciding legal issues and it is 
critically important that we stick to that process, and that 
means that when an issue comes before us, the briefs are not a 
formality. The arguments of the attorneys are not a formality. 
We should read those very carefully and we should study the 
issue and we should study all the authorities that are cited to 
us and carefully consider all of the arguments that are 
presented to us, both in the briefs and in the attorneys' oral 
presentation, and then go into the conference and discuss the 
case among the members of the court, and we shouldn't decide 
legal questions without questions that are going to--not just 
abstract questions as if we were in a constitutional law 
seminar, but cases that are going to have an impact on the real 
world. We shouldn't decide those questions even in our own 
minds without going through that whole process.
    If we announce--if a judge or a judicial nominee announced 
before even reading the briefs or getting the case or hearing 
the argument what he or she thought about the ultimate legal 
issue, all of that would be rendered meaningless and people 
would lose all their respect for the judicial system, and with 
justification, because that is not the way in which members of 
the judiciary are supposed to go about the work of deciding 
cases.
    Senator Kyl. I have talked about this image we have of Lady 
Justice, the blind figure with the scales of justice in her 
hand, and try to describe why she has the blindfold across her 
eyes. I just marvel at our judicial system, and having 
represented clients in court for 20 years myself, how we in 
America are willing to literally put our lives sometimes, 
certainly our freedom and our fortune, in the hands of a 
person, one judge frequently, sometimes a jury, sometimes not, 
sometimes more than one judge, but frequently a judge. How 
would people possibly have the trust to put everything they 
own, or their own freedom, in the hands of a person if we as a 
country hadn't established over 200 years of adhering to this 
rule of law, this notion that justice is blind, that the facts 
of your case and the law will decide whether you win or lose 
and nothing else?
    It is a remarkable phenomenon, if you stop to think about 
it, and not all countries do that, and even countries that have 
judicial systems, I don't think one can have near the 
confidence in that we do here in the United States. So it is a 
critical, critical principle that plays itself out in 
courtrooms around this country every day and it is something 
that I think we have to fight to preserve as much as we 
possibly can, and I appreciate your explanation of that.
    Just a couple of final things and I am going to be able to 
yield back some of my time. I just can't resist pointing out 
one little irony here and it has to do with the precedent that 
I spoke of before, Roe v. Wade, that is so important to several 
members of this Committee. It was written by a Justice who 
himself was, at least in some cases, willing to throw off 
precedent. Do you remember who wrote the opinion in Roe v. 
Wade?
    Judge Alito. It was Justice Blackman.
    Senator Kyl. Justice Blackman, and in, one might say, an 
infamous 1994 dissent from a denial of cert in the case of 
Collins v. Collins, Justice Blackman wrote that he would refuse 
to follow all Supreme Court precedent on the death penalty, 
which has been ruled constitutional by the Court, of course, by 
saying that he would, and I quote, ``no longer tinker with the 
machinery of death,'' end of quote. I suspect that is not the 
way to deal with precedent. If you have a comment on it, fine, 
but again, I just think it ironic that the decision perhaps 
most in focus here was authored by a judge who himself was 
quite willing to throw off precedent, I would argue in a rather 
cavalier way, in a situation in which he didn't like it.
    Let me just close by putting something in the record and 
making a comment. Mr. Chairman, I ask unanimous consent to 
insert the following statement in the record, but I would like 
to read it because it is a statement of the Majority Leader of 
the Senate, Bill Frist.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. And let me briefly read it. ``As a Princeton 
alumnus, I had concerns about CAP, but I have no concerns about 
Judge Alito's credibility, integrity, and his commitment to 
protecting the equal rights of all Americans. Judge Alito has 
condemned discrimination, and his record of more than 15 years 
demonstrates his commitment to equal rights for women and 
minorities.
    ``Old documents of a now-defunct organization will not tell 
us more than Alito's statements and record already have. 
Further, the views that the Democrats attribute to Alito 
through CAP were the views expressed by an individual member in 
a magazine, who was not speaking for the organization and 
certainly not for Judge Alito. This is another transparent 
attempt by Democrats to wage an unfair smear campaign against 
an exceptionally qualified nominee.''
    Mr. Chairman, I read that not to attribute the views to any 
member of this committee, but I think it is important that the 
reputation of this fine jurist be based upon his actions as a 
jurist for over 15 years, as I said in my opening statement--
longer than any other justice of the U.S. Supreme Court, except 
for one, 70 years ago, on a circuit court of appeals--with a 
record of over 4,000 decisions and an ample opportunity to know 
what kind of a person he is, what kind of a judge he has been, 
and, I would argue, what kind of a judge that he would make.
    I do not believe that his answers to questions have been 
inconsistent or unforthcoming. I believe that, as a matter of 
fact, Judge, you have been very forthcoming in your answers to 
questions, including getting right up to the edge on a lot of 
matters that arguably could come before the Court. But you did 
not try to dodge or duck those questions at all. In fact, let 
me just read for the record two or three statements relating to 
your performance here at this hearing, if I could, please.
    Well, Senator Biden isn't here, so I won't read what he has 
said. But it is on the chart. And I appreciate what he said, by 
the way.
    Jill Zuckman, who writes for the Chicago Tribune: ``Judge 
Alito has gone farther and I think that has given a lot more 
substance to these hearings, said Specter--meaning our 
distinguished chairman, Arlen Specter.''
    And then, Dana Milbank, writing in the Washington Post: 
``Unlike John G. Roberts, Jr., who made frequent attempts to 
soften his views and dodge many of the questions, Alito took 
almost every question.''
    I am not going to subscribe to the first part of that last 
quotation with respect to Judge Roberts, but I think it is true 
that you have taken the questions, you have answered them to 
the best of your ability, and you have only stopped short when 
not to do so would be to commit to a decision in a case that 
you are not ethically permitted to do and that would do 
injustice to the rule of law and the parties that might come 
before the Court.
    So I want to commend you for being so forthcoming, for 
answering our questions, and for testifying in a very 
thoughtful, and as has been apparent to everybody, without any 
notes or materials or referring to any other people here, with 
great knowledge about both the matters on which you have worked 
and the law generally.
    Thank you, Judge.
    Judge Alito. Thank you, Senator.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Kohl.
    Senator Kohl. Thank you very much, Mr. Chairman.
    Judge Alito, after the first day of questions, it seems 
very clear that you believe there are certain bedrock 
principles in American constitutional law, principles like the 
right of one man, one vote in redistricting, the right of 
children not to have to go to schools unless they are 
integrated schools, the right for people to have privacy in 
making decisions about contraception, and other rights.
    Even though these are cases where the principles are raised 
and their application is debated on the margins or even more 
fundamentally, I believe you have said and you are willing to 
say that you will not question the underlying principle 
involved on these issues. And I commend you for that. We are 
assured, and I believe, that you clearly do stand by those 
principles.
    And yet, when you are asked about Roe v. Wade and the 
following case of Casey, cases that say the Government should 
not place an undue burden on a woman's right to choose, when we 
ask about principles of that sort, you are unwilling to make 
the same statement of support.
    Now, I understand that there will be cases where plaintiffs 
argue on the margins about Roe and Casey, where there are 
efforts to narrow or broaden these principles, just as there 
are cases that narrow or broaden the principles of one man, one 
vote or the issue enunciated in Brown v. Board of Education or 
Griswold. But you are willing to stand by those other legal 
principles and yet you are not taking the same position with 
regard to the principles embodied in Roe and Casey.
    Could you explain that, please?
    Judge Alito. Senator, I think it's important to draw a 
distinction between issues that could realistically come up 
before the courts and issues that are very much, that are still 
very much in play--which is to say, the subject of litigation 
in the courts. And I felt comfortable about commenting on one 
person, one vote and, of course, Brown v. Board of Education 
because those are not issues that are any longer the subject of 
litigation in our country, not the fundamental principles that 
are embodied in those decisions. And the Griswold case, 
likewise, concerns an issue that is not realistically likely to 
come before the courts.
    Roe, on the other hand, involves an issue that is involved 
in a considerable amount of litigation before the courts, and 
so that's where I feel that I must draw the line, because on 
issues that could realistically come up, it would be improper 
for me to express a view and I would not reach a conclusion 
regarding any issue like that before going through the whole 
judicial process that I described.
    Senator Kohl. I think there is strength to what you say, 
but I also believe it is not inaccurate to say that these other 
issues on the margins, just as Roe on the margins, are still 
coming up and may yet come up before the Court. And I still 
feel that while you are prepared to take a position on these 
other issues which is almost bottom-line, clearly bottom-line, 
you are not prepared to take that same position--which you 
could, if you wished; you could take that position if you 
wished. And I think what that does suggest is that what you are 
saying is that it is possible, if a case comes before you, that 
you would take a look at the principles underlying Roe and 
Casey and see them in a way that would overturn Roe and Casey.
    Now, you may say, well, obviously the answer is yes. But I 
just want to get that clarified for the record.
    Judge Alito. Well, what I would do if a case like that were 
to come before me, and if I'm confirmed, is to follow the two-
step process that I've talked about, which is first to consider 
the issue of stare decisis. And there's been a considerable 
body of case law now on this issue going back to Roe and, in 
particular over the last 20 years, and in the Casey opinion, 
that was where the joint opinion began and the joint opinion 
ended. And then only if I got beyond that issue would I 
consider the underlying issue. And that's what I would do if 
the issue were to come up. And I don't believe that it would be 
appropriate and it wouldn't even be realistic for me to go 
further than that.
    Senator Kohl. That is correct. And in your mind, you are 
not prepared to say that the principle embodied in Roe v. Wade 
and the principle embodied in Casey is clearly established law 
that is not subject, to your mind, to review. You are not 
prepared--I mean, that is not your position, which I think you 
have said. But I think, at least for me, a clarification of 
that would be of some importance.
    Judge Alito. Well, in light of the current state of 
litigation relating to the issue of abortion--and as I said, 
there's an abortion case before the Supreme Court this term and 
there are undoubtedly abortion cases before the lower Federal 
courts; I know there are--I don't believe that it's appropriate 
for me to go further than that in relation to that issue.
    Senator Kohl. All right.
    Judge Alito, the President nominated you for the Supreme 
Court because of your record as a person and as a judge. Groups 
and individuals, particularly on the right, quickly endorsed 
you soon after your nomination because they feel comfortable 
with your record as you have established it over several 
decades now, where you have come from, and where you are on the 
issues that are important to them. We also assume that you 
yourself are very proud of your record, as you should be. As a 
man of principle and conviction, which we believe you are, you 
worked on issues throughout your career as a Justice Department 
attorney that you believed in, that you cared about, that 
mattered to you. And I am certain you would say that if you 
didn't believe in these things, you would not have gone to work 
for that particular Justice Department under that particular 
administration.
    And yet yesterday during the hearing, you seemed to walk 
away from a lot of your record. For example, when asked about 
an interview where you supported Judge Bork, calling him ``one 
of the most outstanding nominees of this century,'' you 
answered that you were just supporting the administration's 
position, that that wasn't your position. And even then, you 
distanced yourself from a number of his views, after having 
said that he was one of the most outstanding nominees of this 
century. You are a man of conviction; I am sure you are. And 
you are not just a mouthpiece for people. You never have been 
and you never will be--which is to your credit.
    When asked about the strong position you took opposing a 
woman's right to choose in your job application, you said that 
only reflected how you felt then and did not suggest anything 
of what you believe now. What you felt then you felt as a full-
grown man, and you are saying that is not necessarily how you 
feel now.
    When asked about your membership in a radical organization 
at Princeton, a group that you cited with pride on your job 
application, you said that you could not remember anything 
about the group at all.
    When asked about the citation on your job application where 
you refer to the importance of traditional values, and what you 
meant by traditional values, then you answered, somewhat 
incomprehensibly, when you said that you were protecting 
children from ``psychological threats that come from elements 
in the atmosphere is a traditional value.''
    I also asked you about your statement on your job 
application that you disagreed with the Warren Court's rulings 
on reapportionment, rulings that stand for the basic principle 
of one person, one vote. Indeed, you said your disagreement was 
so strong that it contributed to your decision to pursue a 
legal career. Yesterday you stated that you in fact did not 
disagree with the principle of one person, one vote--not then, 
not now.
    So, Judge, this is the only time that the people of this 
country are going to have an opportunity to get a sense of who 
you are, what you believe in, what you stand for, who you are 
as a person. I think you would say that the American people 
have the absolute right to know that, without condition, 
without any political considerations, that the most important 
part of this hearing is that the American people get a chance, 
through our questions and your answers, to know who you really 
are. I would like to hope that you would say the job isn't 
worth it if we can't do that and do that well. And I believe 
you believe that.
    So I would like to ask you how you bring into a sense of 
harmony some of these things that you have done and said 
throughout your career which have brought you to this situation 
in which you are now, a person being nominated to serve on the 
Supreme Court, and some of the positions which you have taken 
in the last few days which, in effect, distance you from some 
of the very things that you have done and stood for over a 
career that bring you to where you are today.
    Judge Alito. Senator, you mentioned a number of things and 
I've tried to jot them down so that I could cover at least the 
major things that you mentioned.
    You mentioned--and I guess I'll take these in reverse order 
of chronology--you mentioned the statement in the 1985 
statement relating to reapportionment. And I've tried to 
explain what I had in mind. The statement in the '85 statement 
talked about what I thought about reapportionment when I was in 
college. And the reason why I mentioned that--why would I 
mention what I thought about constitutional law in college 
before I'd even been to law school?
    What I was attempting to do was to explain the development 
of my thinking about the role of the judiciary and about 
constitutional law and, in particular my development of my 
strong belief in judicial self-restraint. And the first place 
in which I saw a theoretical explanation of that doctrine, 
which I found persuasive at the time, was Alexander's Bickel's 
book, ``The Supreme Court and the Idea of Progress,'' which 
came out during the time when I was in college. I think it was 
the first book about constitutional theory, so to speak, that I 
had read. And he addressed the issue of one person, one vote, 
and that linked up in my mind with the experiences of my father 
in working on the reapportionment of the New Jersey 
legislature.
    And at the time when I was in college, there was an issue 
that was very much a live issue at the time as to what one 
person, one vote meant. Did it mean that you took this 
principle of one person, one vote and applied it with blinding 
literalness so that every district was exactly equal in 
population, or very close to that, with a population deviation 
of under 1 percent, or could other factors that people thought 
were legitimate factors to be considered in drawing districts, 
such as respecting county lines and municipal lines; was it 
permissible to take those into account? That's what I know I 
was thinking about reapportionment back in my college days.
    I referred in the statement to traditional values, and I 
said yesterday at this point in 2006, I can't say for sure 
exactly what was on my mind in 1985, when I made reference to 
traditional values. But I tried to describe some of the things 
that I probably thought were traditional--thought of as 
traditional values, and I listed a number of them. One--and a 
lot of them had to do with the ability of people to live and 
raise a family in the sort of neighborhood where I grew up. And 
I gave a little description of that earlier.
    So it would include things like being able to live in peace 
and safety. I think that's a traditional value, and that was 
very much at stake when I was in college in the late '60s and 
early '70s and in 1985, because these were eras of high crime. 
And a lot of the work that I had done up to 1985 as an 
assistant U.S. attorney and working on criminal cases in the 
Solicitor General's Office seemed to me to be involved with 
this issue of protecting people from the threat of crime.
    I think I mentioned the ability to raise children the way 
you want, to instill your values, not to have them subject to 
certain external threats. And these were--you know, I've tried 
to think of why would these have been at issue in the mid-80s. 
And they were at issue because of things like some of the 
things I was referring to earlier today about children being 
able to, and students being able to express their religious 
views at school in a nondiscriminatory way, so that religious 
speech was not discriminated against. And that was very much at 
issue in the '80s. Congress passed the Equal Access Act at 
about that time to embody that principle.
    So those were some of the things that came to my mind as 
traditional values.
    The 1985 statement in reference to abortion, I have not 
distanced myself from it. I have said that that was a correct 
expression of what I thought in 1985 when I wrote it. It was 
written in 1985, and that was 20 years ago. And there's been a 
lot of case law in the intervening years. There was Thornburgh 
and there was Webster and Casey, all of which involved direct 
challenges to Roe, and there were other cases applying Roe.
    So that's what I had in mind with respect to the matters 
that you've covered.
    Senator Kohl. Last question. When we met privately, I asked 
you what sort of Supreme Court Justice you would make and your 
answer was fair when you said if you want to know what sort of 
justice I would make, look at the sort of judge that I have 
been.
    Last week, the Washington Post did exactly that in an 
analysis of your record as a Third Circuit judge for the past 
15 years. They analyzed 221 cases that you sat on and in which 
the court's decision was divided. I recognize that in every 
case there is a difference and that it must be decided on its 
facts. Nonetheless, this data reveals patterns and tendencies 
in your decisions, among other things, as you may have 
recollected from the Post article.
    It was found that in civil rights cases you sided against 
three out of every four people who claimed to have been victims 
of discrimination. This was a significantly greater rate than 
other judges in a national sample of cases. Of 33 criminal 
cases the newspaper analyzed, you sided with the criminal 
defendant only three times. This was a very much lower rate 
than the national sample. In immigration cases, the Post also 
found that you sided with immigrants who were trying to win 
asylum or block deportation only in one out of eight cases 
analyzed. This was much less than most judges in the national 
sample.
    Now, the Washington Post was not the only one to perform an 
analysis of your record. Noted constitutional law professor 
Cass Sunstein, for example, found that, ``When there is a 
conflict between institutions and individual rights, Judge 
Alito's dissenting opinions argue against individual rights 84 
percent of the time.''
    So what can we glean from these analyses of Judge Alito and 
what might they indicate with respect to your posture on cases 
should you become a Justice of the Supreme Court?
    Judge Alito. On the discrimination cases, Senator, I think 
that the statistic that Senator Kyl just cited speaks directly 
to that, a comparison of the number of times in which people 
claiming discrimination prevailed in the cases won my vote 
compared to the average for circuit judges in general. And I 
think that those statistics--that my statistics and the 
statistics for circuit judges in general have to be viewed 
against the background of--have to be viewed with a recognition 
of the way in which these discrimination cases come up through 
the court system. Most of them are cases in which the person 
claiming the violation lost in the district court, and that 
means that a district court judge--and they are not always 
right, but most of the time they are right. And they are 
conscientious people, and they apply the same law that we do. 
They found that these were not meritorious cases. And so if you 
start out with a group of cases that have already been found to 
be not meritorious, it stands to reason that probably not a 
very high percentage of them will ultimately be found to be 
meritorious.
    On the immigration cases, I take very seriously--and I 
don't know what the statistics are in this area, but I can tell 
you this, that I take very seriously the scope of review that I 
am supposed to perform as an appellate judge. And that is 
usually dictated by Congress, and in the area of immigration, 
Congress has spoken clearly. And as to factual decisions that 
are made by an immigration judge, what Congress has told us is 
you are not to disturb those unless no reasonable fact finder 
could have reached the conclusion that the immigration judge 
did. And I very often see a record where I think it's doubtful. 
I say to myself, ``I might have decided this differently if I 
were the immigration judge.'' But I wasn't there. I didn't see 
the witnesses testify personally. And Congress has told me what 
my role is there. My role is not to substitute my judgment for 
that of the immigration judge. My job is to say, Could a 
reasonable person have reached the conclusion that the 
immigration judge did? And if I find that a reasonable person 
could have reached that conclusion, then it's my job to deny 
the petition for review. And that's what I do in those 
instances.
    Senator Kohl. I appreciate that. I would just comment again 
that your siding with immigrants who were trying to win asylum 
or block deportation, you sided only in one out of eight cases 
that they analyzed, and this was much less than most judges in 
a national sample who are about evenly divided in their 
decisions on these issues. This was what their analysis 
indicated.
    So, you know, for whatever it is worth, you were one out of 
eight; in the national sample of judges, it was about 50 
percent. I only bring that up for your comment.
    I thank you very much, Judge Alito, and, Mr. Chairman, I 
thank you.
    Chairman Specter. Thank you, Senator Kohl.
    We have made some inquiries about the issue which Senator 
Kennedy has raised about the Concerned Alumni of Princeton. As 
to the letter, I am advised by my chief of staff, Michael 
O'Neill, that he first saw a computer letter and that he 
believes later a letter was delivered to the Judiciary 
Committee headquarters, apparently near Christmas, perhaps on 
Christmas Eve, and our custom is to log letters in, and the 
letter was never logged in. But I repeat and confirm that I 
have never seen this letter until I saw a computer printout of 
it about an hour ago.
    Mr. O'Neill did talk to me about it over the break between 
Christmas and New Year's. I traveled to Iraq. That is the first 
time on the Judiciary Committee schedule I could find a few 
days to get away, and Mr. O'Neill reminds me that we talked 
about it on the phone, and I thought the matter was 
unmeritorious, not worthy of the time of the Committee, based 
on all that I knew about it. A very brief conversation.
    We get so many requests and there are so many items that 
are largely staff-driven--not that staff-driven matters aren't 
important, but if something is of significance, you customarily 
expect a member to tell you about it.
    Senator Kennedy and I frequent the gym at the same time and 
talk all the time, and he never mentioned it to me, nor did he 
take it to the Ranking Member.
    I make it a point that Senator Leahy's calls are the first 
ones I return, and I have a fair number, but I return all calls 
from Members very, very promptly. And had this matter been 
presented to me, I would have given it more attention than I 
did on that telephone call that I have referred to.
    So much for matters which are not quite as relevant as what 
I am about to come to. The New York Times published a story 
about this on November 26th, and my chief of staff, William 
Reynolds, talked to David Kirkpatrick, who said he had gone 
through all of the records. And as the story in the public 
domain stated, these are the records that the Library of 
Congress, the Rusher records, those records and others at the 
med. library at Princeton give no indication that Judge Alito 
was among the group's major donors. He was not an active leader 
of the group, and two of his classmates who were involved and 
Mr. Rusher said they did not remember his playing a role.
    Well, the obvious thing to do is to call Mr. Rusher, which 
Mr. O'Neill did over the lunch hour, and Mr. Rusher said he 
would be glad to have us look at his record, and that he had 
received a request from Congressional Research Service, but it 
was from an unnamed requester, and he declined. But he said had 
he received a request from Senator Kennedy or some member of 
this Committee, he would have made the records available. So in 
Senator Kennedy's absence, I asked a staffer to tell him that 
we had moved ahead, but I didn't want to waste any time, and 
Mr. O'Neill has contacted Senator Kennedy's staffers, and they 
are en route or at the Library of Congress to look at these 
records so that we can confirm what the New York Times' David 
Kirkpatrick has had to say.
    I am just a little puzzled at the issue being raised in 
this manner. We talk all the time, and I am just a little 
surprised that Senator Kennedy hadn't talked to Senator Leahy 
or hadn't talked to me before he made a request for access to 
the Rusher records, talks about a subpoena, talks about a 
ruling of the Chair, talks about overruling the Chair. Just a 
little puzzled. But the substantive matters are being attended 
to. And I share Senator Kennedy's concern that we have all the 
facts. All the facts. All the facts. And this is a lifetime 
appointment. It is a matter of tremendous importance, and I 
wouldn't want to find on some occasion that something comes to 
light which would bear on this nomination that we could have 
found out had we been more vigilant.
    Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman. I welcome the 
fact that we are going to have the access to those records. The 
fact remains I didn't anticipate--I thought that since this was 
a major issue on the 1985 application of the nominee for a new 
job, this membership with the Federalist Society and the CAP 
organization, I thought as a matter of routine that we would 
have access to those records. And it was a letter to you, as we 
would do, and would followup with the staff, which is the usual 
procedure here. I regret I have not been down in the gym since 
before Christmas so I have missed you down there.
    But the important fact is we are going to get that 
information. I think that is what is extremely important. And, 
quite frankly, if we had been able to get what I think were 
more responsive answers by the nominee during the course of the 
exchange today, I don't think it would have even been 
necessary. But I don't think you would be able to look through 
the transcript on the exchanges that we had with the nominee 
and not feel that we have an important responsibility to 
followup.
    So I am grateful that we will have that chance to followup, 
and I look forward to the further considerations and evaluation 
of the material and further considerations of the hearing.
    Chairman Specter. Enough said.
    Senator Leahy, you have a unanimous consent request?
    Senator Leahy. Yes, Mr. Chairman. As I had understood, we 
will be going back to another round, so if I have 
misunderstood, you will correct me. But as I understood Judge 
Alito, he saw no connection between his unified Executive 
theory and the use of Presidential signing statements. In fact, 
the Wall Street Journal reported the President has cited the 
unitary Executive 103 times in Presidential signing statements. 
So I would like to put that article and some articles from the 
Post that are relevant in the record. In fact, in the defense 
bill, the McCain torture amendment, he specifically employed a 
signing statement mentioning the unitary Executive, and I would 
like to make that part of the record.
    Chairman Specter. Without objection, those documents will 
be made a part of the record.
    Senator DeWine, 20 minutes.
    Senator DeWine. Thank you, Mr. Chairman.
    Judge, yesterday you and I discussed the concerns that I 
have about the Supreme Court's willingness to strike down law 
passed by this Congress and by State legislators. This lack of 
what I consider to be appropriate deference by the Court 
endangers our ability to protect the rights of our citizens.
    One of the groups that I am most concerned about in that 
context is people with disabilities. Congress has passed a 
number of laws to assure that people with disabilities have 
equal access and equal opportunities. I think it is critically 
important that we make sure that those with disabilities have 
these opportunities to participate fully in our society in 
every way possible.
    As you know, Judge, the Americans with Disabilities Act was 
a landmark piece of legislation passed by this Congress in our 
ongoing efforts to assure that people with disabilities are 
treated fairly. The 1999 case of Olmstead v. L.C. was an 
important Supreme Court case interpreting this law. As you 
know, Olmstead held that Title II of the ADA requires States to 
serve individuals with disabilities in community settings 
whenever possible, instead of segregating them while providing 
them with care.
    Olmstead was decided after the case of Helen L. v. DiDario, 
a case which, of course, you are familiar with, a Third Circuit 
case, that reached essentially the same conclusion. Although 
you were not on the Helen L. panel, you along with four other 
judges voted to rehear the case en banc.
    So let me ask you, Judge, if you could, to discuss with us 
your reasoning behind voting to rehear the Helen L. case. I 
would like to ask you, did that vote to rehear the case mean 
that you thought that the Helen L. case was decided incorrectly 
or that you opposed the later holding in Olmstead? Let me also 
ask you, now that Olmstead has been decided, do your reasons 
for voting to rehear the Helen L. case still apply? And do you 
have any concerns with the Supreme Court's holding in Olmstead 
that would cause you to question the validity of that 
particular decision?
    Judge Alito. I certainly don't have any concerns about the 
decision in Olmstead. I would have to look at my own file in 
the Helen L. case--and I doubt that there is any file in the 
case at this point--to try and see if there's anything in there 
to indicate specifically why I voted for rehearing in the case. 
And perhaps if--but I can say this: that I read the decision 
again, and one important part of the opinion in the case 
attempts to distinguish an earlier Third Circuit case that 
seemed to be somewhat closely related--closely related to the 
issue that was at hand. And I noted there were five votes for 
rehearing in the case, and that's quite unusual. It's unusual 
for there to be that many votes for rehearing.
    Most of the time--I would say most of the time when we vote 
for rehearing, the reason is because we think that there may be 
an inconsistency in our court case law, and that doesn't 
necessarily mean that we think that the decision we're voting 
to rehear was incorrect. Quite often, we think the decision 
that we are voting to reconsider is correct, but that it is 
inconsistent with a prior case that needs to be overruled, and 
we are very scrupulous about following our own precedents, not 
ignoring them. So if we have a precedent out there and it seems 
to us to be wrong and the issue comes up in a later case, then 
our mechanism is to vote to rehear.
    That happens very often, and my guess, based on what I can 
tell just from reading the opinion and looking at the votes for 
rehearing and the judges who voted for rehearing, is that could 
have been what was going on.
    Senator DeWine. I appreciate your answer, Judge.
    As the Chair of this Committee's Subcommittee on Antitrust, 
I have seen that it is often very hard to draw the line between 
anticompetitive conduct and, frankly, just good old-fashioned 
competition. Let me give you an example that Senator Kohl and I 
have done a great deal of work on, and, frankly, Senator Kohl 
has really taken a lead on. Many hospitals buy their supplies 
through group purchasing organizations, known as GPOs. These 
organizations purchase products for a large number of hospitals 
at one time, which decreases prices, but also gives them 
extraordinary power over which products get used and which ones 
don't get used. Often, GPOs reach deals with major suppliers to 
buy items in bundles; in other words, buy a number of different 
products from those suppliers in order to get discounts on all 
the products. It saves money, but it also means that smaller 
companies, which many only offer one of these products, have 
really a hard time competing with the large discounts being 
offered. The result is that smaller companies have difficulty 
getting into the market even if their one specific product may 
be better or it may even be cheaper.
    Judge, you had a case that dealt with bundling like this. 
It was the 3M v. LePage case. In that case, 3M, which sells 
Scotch tape, was selling it as part of a bundle with other 
products. The result was that LePage, which was offering a 
cheaper competing tape, was having a hard time getting stores 
to sell its tape because if the stores then did, they would 
have to give up the chance to save money on all the other 3M 
products that they carried. The majority ruled against 3M, but 
you dissented. I wonder if you could please explain your 
reasoning behind that dissent and explain what type of bundle 
discounts you think would violate the antitrust laws.
    Judge Alito. Well, let me preface what I'm going to say by 
saying that I'm not an antitrust expert and so I plod my way 
through these antitrust issues when they come up. But this was 
a tough one and it was a monopolization case and it required an 
examination of all the factors that were relevant to a 
determination of whether 3M was engaging in monopolization.
    3M was selling the product, as I recall, it was selling 
these products--it was not selling them below its cost. It was 
selling them above its cost, but 3M was--because of its scale 
or because it was more efficient, was able to produce its 
product more cheaply. I remember looking at the authorities 
that had discussed this and the writing of leading antitrust 
experts on bundling issues and that factor, taken together with 
the other factors in the case, persuaded Judge Greenberg and I, 
and we were the majority on the case at the panel level, that 
there wasn't sufficient evidence of monopolization here. And 
then when the case went en banc, the court as a whole came out 
the other way.
    But my understanding of the state of the scholarship on 
this issue right now and on the way economists view the issue 
is that I believe that, or many of them who believe that this 
is--a situation like this is not--does not involve 
monopolization. This is not a way in which a company like that 
can engage in a predatory practice over a period of time. But 
there is uncertainty, really, about how the monopolization 
standard applies to issues of bundling. So I think it's quite 
up in the air, and should it come up again, I think it merits 
reexamination.
    Senator DeWine. Thank you, Judge. Judge, you have heard a 
lot of discussion and many of us have said that we don't like 
it when judges legislate from the bench. For judges to properly 
perform their function, obviously, it is crucial that they 
attempt to put their own policy preferences aside in the cases 
before them. But it seems to me that this is a lot easier said 
than done.
    Our Constitution is not a dictionary. It contains a number 
of very broad, undefined phrases. Let me give you some 
examples. The Fourth Amendment prohibits unreasonable searches 
and seizures. The 14th Amendment says that the State shall not 
deprive any person of liberty without due process of law. The 
Eighth Amendment prohibits cruel and unusual punishments. I am 
sure you could supply a lot more examples than I am.
    When confronted with such broad phrases, like 
``unreasonable'' or ``liberty,'' ``cruel and unusual,'' how do 
you know whether you are making policy or merely interpreting 
the Constitution itself? What tools will you use as a Supreme 
Court Justice to ensure that your personal views do not play a 
role in your decisionmaking?
    Judge Alito. In all the areas that you mentioned, there is 
now a considerable body of case law, and that is a real 
limitation on the exercise of judicial power. That is one of 
the important reasons for the doctrine of stare decisis. In the 
78th Federalist Paper, when Alexander Hamilton was responding 
to the people who were worried about this power of judicial 
review, who thought that it would give the judiciary too much 
power, he specifically cited the fact that members of the 
judiciary would be bound up by precedent and this would 
restrain them. This would keep them from injecting their own 
views into the decisionmaking process.
    Under the Fourth Amendment, there is an enormous body of 
case law now and there are many types of searches that are--
it's established in case law that a warrant is required. There 
are types of searches where it's established now that the 
activity can be conducted with reasonable suspicion, a Terry 
stop, for example, other types of searches require probable 
cause. And there are many specialized types of searches, 
administrative searches, roadblocks constructed for certain 
purposes, border searches, and so forth.
    Under the Due Process Clause of the Fifth Amendment and the 
14th Amendment, there is a great body of case law on procedural 
due process and most of the due process issues involve 
procedural due process, what sort of process is required. There 
is a standard for cases involving the substantive component of 
that.
    Under the Eighth Amendment, since the Supreme Court in 
Gregg v. Georgia ruled that the death penalty is permissible 
under certain circumstances, there is a very large body and a 
complex body of case law within which a judge would work in 
deciding cases in that field.
    Senator DeWine. Judge, let me turn to an area that I talked 
with Judge Roberts about, and that is free speech in the public 
square. To me, there is perhaps no right in our Constitution 
that is really as important as freedom of speech. The heart of 
the First Amendment is the idea that people have a right to 
speak their mind but also be heard on matters of public 
concern. Traditionally, our citizens have expressed their 
opinion on public issues by turning to the public square. They 
do it in parks, streets, sidewalks, anywhere that people 
gather. It is as old as the country--older than our country.
    Lately, however, I believe that we are seeing a disturbing 
trend. In many cases, governments have sought to restrict 
speech in the public arena, sometimes with success, sometimes 
without. Let me give you some examples. In one recent case, a 
Wisconsin woman was kicked off a city bus when she tried to 
distribute a book containing Bible stories to individuals 
sitting next to her. In many towns and cities across the 
country, individuals are prohibited from placing political 
signs on their own property. They are told what size they can 
put out. They are told the times they can put it out, the dates 
they can put it out, et cetera. In many public places, 
individuals have been forced to hold up signs of protest and 
been confined to ``free speech zones,'' far away from the event 
that they wish to protest. These individuals are doing nothing 
more, many times, than just standing their with their sign.
    These sorts of restrictions concern me because they limit 
the ability of individuals not only to speak, but also to be 
heard in public places, people who want to talk about politics, 
religion, or any other matter of public concern. I think we 
need to be careful as a society before we limit what people can 
say and where they can say it.
    Let me ask you, how do you approach challenges to 
government restrictions on the ability of individuals to speak 
and be heard in public places, and what, Judge, factors do you 
consider when deciding which restrictions on speech in the 
public square are proper under the First Amendment and which 
ones are not?
    Judge Alito. I think that freedom of speech and freedom of 
the press and all the freedoms set out in the First Amendment 
are matters of the utmost importance. Freedom of speech is not 
only important for its own said, but it is vital to the 
preservation of our form of government, and I think that if 
anybody reviews that opinions that I've written in the area of 
freedom of expression and other First Amendment--
    Senator DeWine. I have looked at some of them, at least--
    Judge Alito. --they will see that I strongly support those 
rights.
    The issue of speech in particular places is a daunting 
issue. The Supreme Court has addressed it by developing the 
forum doctrine, and they have identified what they call a 
public forum, which would be something like a public street, 
where people's ability to speak is at the maximum. At the other 
extreme, there is a private forum. My chambers would be a 
private forum. A Senator's office would be a private forum. 
Someone would not have a right to come in from the street and 
speak in a place like that. And then there are what they call 
limited public forums or dedicated public forums or fora, 
places where people can speak freely, but only at particular 
times on particular subjects, a place that is dedicated to free 
speech but only on a particular subject, for example. That is 
the way they analyze it.
    Now, some people would say that there are developments in 
society that have resulted in the shrinking of public fora that 
make it more difficult for people to express themselves. I know 
that I'm not up to date on New Jersey case law under the New 
Jersey Constitution, but it's my belief that our State has read 
this--has a different forum doctrine in things like shopping 
centers. Malls that are privately owned are considered to be 
public fora under a New Jersey State law. I think some other 
States view it that way and that's a competing way of looking 
at this problem.
    An important principle where I have dealt with this in my 
cases, as I can recall, is the issue of freedom of speech in a 
limited public forum, and even in a limited public forum, what 
government cannot do is engage in viewpoint discrimination. If 
the government opens up a particular forum for discussion of a 
particular subject, it can't say, but we're not going to 
allow--we're only going to allow people who express this 
viewpoint and not another viewpoint. Viewpoint discrimination 
really goes to the heart of what the First Amendment is 
intended to prohibit, so that even in a limited public forum 
where people are restricted with respect to what--the subject 
that they can talk about, government can't impose a viewpoint 
discrimination.
    Senator DeWine. It just seems to me, Judge, that we could 
talk about this issue all day, and we're not going to, 
obviously, but that there is a shrinking public forum and the 
opportunities many times are going away. I guess you could make 
the other argument that because of modern technology, there are 
other opportunities with the Internet, et cetera, that they are 
opening up for people to communicate and to make their point 
well known. But a lot of the places that people historically 
have talked and made their point well known are shrinking. You 
talked about the malls, which certainly in most States are 
totally off limits to any kind of display of that kind of 
debate.
    Let me turn to commercial speech, if I could. Under current 
law, commercial speech is protected by the First Amendment, but 
it has never had the same level of protection as other forms of 
speech, such as political speech. The difference in treatment 
has puzzled a number of commentators and judges. In reviewing 
your cases, I noted that you are certainly familiar with the 
issue of commercial speech. In the Pitt News case, for 
instance, you struck down a Pennsylvania statute that barred 
paid alcohol advertisements in newspapers affiliated with 
colleges and universities.
    Let me ask you, Judge, based on your experience with this 
and other cases, what is your view about the distinction 
between commercial speech and noncommercial speech and is there 
a common sense difference between these two types of speeches 
and have you found that case law supports any distinction? How, 
if confirmed, will you approach the so-called commercial speech 
claims under the First Amendment?
    Judge Alito. Well, there's a debate about how much 
protection commercial speech should have. There are those who 
argue that the distinction between commercial speech and 
noncommercial speech should be eliminated. The Supreme Court 
views commercial speech differently, and while it is strict 
about any limitation regarding accurate information about 
prices, it limits--it permits greater restriction of commercial 
speech under current case law than it does with respect to 
other types of speech. The theory, as I understand it, is that 
commercial speech is more durable. At least, that's part of the 
theory. In other words, there's such a great incentive for 
people who are selling things to engage in advertising and 
other forms of commercial speech that it's less likely to be 
driven out than speech on other issues where the financing may 
not be as extensive.
    In the Pitt News case, what I had to apply was the question 
of whether there was sufficient tailoring. There was a 
compelling interest for what was done there, which was to 
restrict advertising about alcohol in a publication that was 
affiliated with an educational institution. But based on the 
facts there, it just did not seem to be tailored at all. This 
was a newspaper that I think 75 percent of the people who 
received it, and it's connected with the University of 
Pittsburgh, were people over the drinking age, and maybe even 
more to the point, this publication was distributed free on 
campus in newspaper boxes next to a number of others that 
contained commercial publications and they both advertised 
establishments and events in the area of the university and the 
others were full of information about alcoholic beverages and 
those were free, too.
    So while the problem of underage drinking and abusive 
drinking on college campuses is a very serious issue, and the 
Pennsylvania legislature recognized that and we certainly 
didn't question that, I mean, it is an issue of critical 
importance, it seemed quite unrealistic to think that this 
regulation, which only applied to the Pitt News and not to 
these other publications, was tailored sufficiently.
    Senator DeWine. I thank you, Judge. That is an interesting 
set of facts. I thank you, sir.
    Chairman Specter. Thank you, Senator DeWine.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I want to try one more time. First of all, let me just say 
this. Senator Durbin said that Justice Roberts retired the 
trophy on performance. If that is true, you have retired it on 
equanimity. I really think you are to be congratulated.
    This is in this morning's Washington Post, ``Alito Says He 
Will Keep an Open Mind.'' But what concerns me, and obviously 
this is on Roe, is that despite 38 tests, despite 33 years, 
despite the support of a majority of America, you also said 
yesterday that precedent is not an inexorable command, and 
those are the words that Justice Rehnquist used arguing for the 
overturning of Roe.
    My question is, did you mean it that way?
    Judge Alito. The statement that precedent is not an 
inexorable command is a statement that has been in the Supreme 
Court case law for a long period of time, and sitting here I 
can't remember what the origin of it is, but I would bet that 
it's been--it certainly has been used in cases in which the 
Court has invoked the doctrine of stare decisis and refused to 
go ahead and overrule.
    Senator Feinstein. I always believe everything I read in 
the Washington Post.
    [Laughter.]
    Judge Alito. Well, that is an important principle, and I--
not the principle of believing everything in the Washington 
Post, but the principle that stare decisis is not an inexorable 
command, because then we would be stuck with decisions like 
Plessy, and they couldn't be overruled except through a 
constitutional amendment.
    But when an issue is one that could realistically come up, 
the people who would be making the arguments on both sides of 
the issue have a right to have a judiciary of people with open 
minds, and that means people who haven't announced in advance 
what they think about the issue, and more importantly, people 
who are not going to reach a conclusion in the--not going to 
reach a conclusion until they have gone through the judicial 
process. And it's not a facade, it's a--it's not a meaningless 
exercise. It's a very important one.
    Senator Feinstein. Let me try this. I would like to read a 
line of questions that Senator Specter asked now Chief Justice 
Roberts, and then I would like to ask this question: how do you 
disagree with this? Here is the question.
    Specter: Judge Roberts, in your confirmation hearing for 
the Circuit Court, your testimony read to this effect, and it 
has been widely quoted. ``Roe is the settled law of the land.'' 
Do you mean settled for you, settled only for your capacity as 
a circuit judge or settled beyond that?
    Roberts: Well, beyond that. It's settled as a precedent of 
the Court, entitled the respect under principles of stare 
decisis, and those principles applied in the Casey case explain 
when cases should be revisited and when they should not, and it 
is settled as a precedent of the Court, yes.
    Specter: You went on to say then, ``It's a little more than 
settled. It was reaffirmed in the face of a challenge, that it 
should be overruled in the Casey decision, so it has added 
precedentual value.''
    Roberts: I think the initial question for the judge 
confronting an issue in this area, you don't go straight to Roe 
decision. You being with Casey, which modified the Roe 
framework and reaffirmed its central holding.
    Specter says: And you went on to say accordingly, ``It's 
the settled law of the land,'' using the term settled again. 
And then your final statement as to this quotation, ``There is 
nothing in my personal views that would prevent me from fully 
and faithfully applying the precedent as well as Casey.''
    Where do you differ, since Justice Roberts made that 
statement in a confirmation hearing. He not only got confirmed, 
he is the Chief Justice. It seems to me appropriate for you to 
comment on it and say where you might differ with it.
    Judge Alito. Well, the statement covers a lot of ground, 
and let me try to remember the major points. I certainly agree 
with the point--
    Senator Feinstein. I can give it to you if you would like? 
Would that be helpful?
    Judge Alito. Certainly, I would be happy to look at it.
    Senator Feinstein. Would someone take it down to him? Show 
him the place.
    [Pause.]
    Judge Alito. Well, Senator, I certainly agree with the 
point that the Chief Justice made about separating any personal 
views he has from anything that he would do as a member of the 
Supreme Court. I emphatically agree with that. That's the 
essence of what a judge has to do. I certainly agree that Roe 
and Casey and all of the other decisions in this line are 
precedents of the Supreme Court, and they are entitled to 
respect under the doctrine of stare decisis to the extent that 
some of the earlier decisions have been modified, and 
obviously, the most recent ones are the relevant provisions of 
the Supreme Court.
    I have agreed, I think, numerous times during these 
hearings that when a decision is reaffirmed, that strengthens 
its value as stare decisis. I agree that when the Supreme Court 
entertains a challenge to a prior decision and says, ``We're 
not getting to re-examination of the merits of the issue, we 
think stare decisis counsel against our going to that point,'' 
then that is a precedent on precedent. That seems to me to be 
entirely logical, and we have a long line of precedents now 
relating to this issue.
    I have said I think--I have said that stare decisis is a 
very important legal doctrine, and that there is a general 
presumption that decisions of the Court will not be overruled. 
There needs to be a special justification for doing it, but it 
is not an inexorable command.
    Senator Feinstein. But you do not agree that it is well 
settled in the Court?
    Judge Alito. I think that depends on what one means by the 
terms ``well settled.''
    Senator Feinstein. I actually agree with you, because 
others have said that, and then gone out and voted to overthrow 
it, so it is like saying, ``I have no quarrel with that.''
    Judge Alito. Let me just say this. As a judge on the court 
of appeals or if I'm confirmed as a Justice on the Supreme 
Court, it would be wrong for me to say to anybody who might be 
bringing any case before my court, ``If you bring your case 
before my court, I'm not even going to listen to you. I've made 
up my mind on this issue. I'm not going to read your brief. I'm 
not going to listen to your argument. I'm not going to discuss 
the issue with my colleagues. Go away, I've made up my mind.''
    That's the antithesis of what the courts are supposed to 
do, and if that's what settled means, then I think that's not 
what judges are supposed to do. We are--
    Senator Feinstein. Let me interrupt you for a moment if I 
may. You were willing to give your view on one man/one vote, 
and yet there are four cases pending in the court right now on 
one man/one vote, and that is where I have a hard time. The 
cases are Lulac v. Perry, Travis County v. Perry, Jackson v. 
Perry, and GI Form of Texas v. Perry. That is where I have a 
hard time. If you are willing to say that you believe one man/
one vote is well settled, and you agree with it, I have a hard 
time understanding how you separate out Roe. I understand why. 
If you say one thing, you upset my friends and colleagues on 
that side, if you say the other you upset those of us on this 
side. But the people are entitled to know.
    Judge Alito. I don't think it's appropriate for me to speak 
about issues that could realistically come up, and my view 
about Brown v. Board of Education, for example, which was one 
of the cases that was cited in connection with this issue about 
where someone in my position should draw the line, seems to me 
to embody a principle that is now not subject to challenge, not 
realistically subject to being challenged, not within the 
legitimate scope of constitutional debate any longer that there 
should be segregated racial--facilities that are segregated on 
the basis of race, and that's where I've tried to draw the 
line. If an issue involves something that is in litigation, 
then I think it's not appropriate for me to go further than to 
say that I would be--I would be very respectful of the doctrine 
of stare decisis, and I would not reach a decision on the 
underlying issue, if one were to get to it, without going 
through the whole decisionmaking process.
    Senator Feinstein. OK. I will let you off the hook on that 
one.
    One of the reasons that some of us are so concerned about 
the Commerce Clause is because we see major law being 
overturned if the Rehnquist Court continues its march. Let me 
give you some examples concerning the environment, and these 
are cases that will be before you, so I do not expect you to 
comment on the case, but to understand them.
    The Clean Water Act was passed in 1972, and it included a 
provision permitting citizens or citizen groups to bring 
lawsuits for violation of the Act. In Public Interest Research 
Group of New Jersey v. Magnesium Electron, a citizen's 
environmental group sued a chemical manufacturer under the 
Clean Water Act for polluting a river used by members of the 
group. The trial court found that the defendant committed 150 
Clean Water Act violations. On appeal, you are the decisive 
vote in a 2-1 decision, overturning the trial court's decision, 
even though it was undisputed that the defendant committed the 
150 violations of the Clean Water Act.
    Your decision, as I understand it, was based upon your 
conclusion that the environmental group did not have standing 
to sue under the Clean Water Act, because even though members 
of the environmental group had stopped using the river due to 
the pollution, they did not prove any injury to the 
environment. The decision, if broadly applied, would have 
gutted the citizen lawsuit provision of the Clean Water Act.
    Now, 3 years later in Friends of the Earth v. Laidlaw, the 
Supreme Court, in a 7-2 decision, rejected this reasoning, and 
held that a citizen only needed to show that he or she was 
harmed by the Clean Water Act violation, and did not need to 
prove a broader injury to the environment.
    So you see where the concern comes with respect to 
overthrowing something on a technicality that can have enormous 
implications. Do you agree with the Supreme Court's decision in 
Friends of the Earth v. Laidlaw?
    Judge Alito. Well, it's a precedent of the Court, and I 
have respect for it, and as you mentioned--and it's governed by 
stare decisis, and as you mentioned, it was decided after the 
decision of my court in the Magnesium Electron case. And I 
haven't gone back and thought about the question of whether 
Laidlaw creates doubt about the soundness of the decision in 
Magnesium Electron. If it does, then it does, and if the issue 
were to come up again before the Third Circuit, for example, 
and I sat on the issue, then I would follow Supreme Court 
precedent if I concluded that it was in conflict with the 
decision of the prior court of appeals decision.
    We have--our jurisdiction, under the Constitution, is 
limited to cases and controversies, and the Supreme Court has 
said that means you have to have a plaintiff who has suffered 
injury in fact. And although there was a disagreement on the 
panel about the procedure we should use going forward, 
everybody on the panel agreed--Judge Roth and I who were in the 
majority, and Judge Lewis who dissented on a procedural point 
that I'll get to--that the plaintiffs in that case had not even 
alleged personal injury. They alleged that they enjoyed the 
Delaware River in a variety of ways. As I recall, they walked 
along the canal path, they ate fish from the river, they drank 
water from the river, but there was no evidence that the 
discharges into a creek some distance upstream from the river 
had had any effect whatsoever on the river, and therefore, 
there was nothing to support a claim that they were personally 
injured by the discharges of this plant.
    Now, there would presumably be other people who could take 
legal action against the plant for its violations of the law, 
and nobody would condone that, but our obligation under Article 
III is to confine ourselves to cases within our constitutional 
jurisdiction.
    Senator Feinstein. Of course you are going to have two 
cases challenging the application of the Clean Water Act to 
nonnavigable waters under the Commerce Clause, and as you 
probably know, we have lost 90 percent of the wetlands in the 
United States. This is a very big deal. I mean there are many 
of us that would hate to see wetlands be made virtually 
impossible because it is very difficult to prove when something 
becomes navigable, as opposed to nonnavigable, which is kind of 
the question that is before the Court. I only say that because 
if this march to restrict Congress continues, you could strike 
down the Endangered Species Act, you could strike down the 
Clean Water Act, you could strike down the Clean Air Act, and I 
think that would be catastrophic for the United States.
    If I can, let me just switch to another topic. A year ago 
all of us became very concerned and involved and some horrified 
with the Terri Schiavo case, and as I recall the case, the 
local courts held that her life support could be turned off. 
The State Supreme Court held the same thing. And then there was 
an effort--and I think a Federal district court held it--to 
bring it up to the Supreme Court. What do you believe the role 
of the Federal courts should be in the arena of end-of-life 
decisions?
    Judge Alito. Well, there's a constitutional issue, 
certainly, at the bottom of that and there are issues of 
jurisdiction. There are statutory issues and Congress specifies 
the jurisdiction of the lower courts and so Congress can give 
us a role in decisions of this nature or Congress can keep the 
Federal courts out of it and leave it to the State courts 
where, for the most part, issues in this area have been 
adjudicated. But if there is a Federal constitutional right 
involved, then someone may have jurisdiction--then, of course, 
the Federal courts have traditionally been a forum for the 
adjudication of Federal constitutional rights.
    The underlying statutory--I'm sorry, the constitutional 
issue is the one that the Supreme Court addressed in the Cruzan 
case and in the case of Washington v. Glucksburg, and this is 
obviously one of the most sensitive issues that comes up in our 
legal system and involves something that a lot of people have 
had to face and a lot more people are going to have to face 
decisions involving the end of life, and with the advances in 
medical technology, this is going to be a very tough issue for 
an awful lot of people.
    In Cruzan, the Court proceeded on--they said, we assume 
that there is a constitutional right to refuse medical 
treatment that a person doesn't want, and there certainly has 
long been a common law right to refuse medical treatment that a 
person doesn't want. If somebody gives you medical treatment 
and you say, ``I don't want it,'' and they perform an operation 
on you or do something like that, that's a battery under the 
common law and you can be sued, and the Supreme Court assumed 
that that was a fundamental right under due process but said 
that there wasn't a violation of the right under the 
circumstances in Cruzan, where the State of Missouri had 
imposed certain restrictions--regulations that had to be 
complied with before a person who was comatose could be taken 
off life support.
    And then in Washington v. Glucksburg, they addressed the 
issue of whether there was a constitutional right to assisted 
suicide and they concluded that there was not, that there 
were--and they applied the standard to be applied under the Due 
Process Clause or its substantive component, whether a right is 
firmly rooted in the traditions of our country and implicit in 
the concept of ordered liberty, but there were some concurring 
opinions that recognized that these were issues that were on 
the cutting edge of medical technology, let me put it that way, 
or they were issues on which more empirical evidence might 
become relevant in the future.
    Senator Feinstein. Thank you very much. I notice I just 
have 40 seconds left. Will we have another round, Mr. Chairman?
    Chairman Specter. Well, that is something that--let us talk 
about. I would very much like to finish today. As I said 
earlier, that may be an ambitious schedule, but let us talk 
about it.
    Senator Feinstein. Thank you.
    Chairman Specter. Senator Sessions?
    Senator Sessions. Thank you, Chairman Specter.
    Judge Alito, I want to thank you for your patience and good 
spirits and your thoroughness in answering questions. You have 
been very forthcoming. I think very few people could disagree 
that on case after case that you have been asked about, you 
have gone as far as you legitimately should go to express your 
understanding of the law and what is important there.
    I know your entire record has been examined extensively. 
You think about it, the FBI does a background check. They found 
out every place you lived and talked to your neighbors and 
checked your criminal history. The Department of Justice has a 
big inquiry that they do before they submit your nomination to 
the President, or the President submits your nomination to the 
Senate. The American Bar Association has interviewed 300 of 
your colleagues before they made their recommendation that you 
are well qualified in a unanimous vote. The Senate has its 
questionnaire. Outside groups look at it and create studies and 
data. They read everything you have written to find things that 
they might be unhappy with. So I think, all in all, you are 
coming through this with very little mud upon you, for which I 
congratulate you. I think it is something that you can be proud 
of. Most of us on this side of the aisle would not like to have 
our record scrutinized in the way yours has been.
    I know some of us have made mistakes in our statements 
already in the hearing, we have to admit. I will admit that I 
was one of them. I first said that you were ranked No. 4 in 
being the most independent judge out of 900 judges in the 
country. As I see the numbers more clearly, you were No. 4 out 
of 98 appellate judges examined in that system, but that still 
shows that you are an independent, nonideological judge, 
willing to--one of the factors they used was whether or not you 
always agreed with nominees of your party, and so I think that 
speaks well for your record and that is why you have gained 
such a broad respect from your colleagues.
    I just wanted to briefly mention some of these studies that 
go into your background. People have looked at it, incredibly, 
to the most minute detail. You were asked earlier about saying 
that you only rule one out of eight times for immigrants 
seeking asylum, but looking at the asylum cases nationwide, 
most of those are the government's position is affirmed. It has 
already been decided by a lower court or administrative body. 
You are simply reviewing their decision.
    But in immigrant asylum cases nationwide, the court of 
appeals generally ruled for the asylum-seeker 11 percent of the 
time. During your record on the bench, you ruled for asylum-
seekers 18 percent of the time. In your published opinions, the 
average court of appeals judge in America ruled for immigrants 
8 percent of the time. In your published opinions, you ruled 
for them 19 percent of the time.
    I think this not only shows that the charges against you 
there are not well placed, it shows just how carefully your 
record is being examined by people as you move through the 
system.
    Another example, civil rights. I think your critics have 
cherry-picked from some of your 4,800 cases that you have ruled 
on. In your opinions on civil rights, your panel was unanimous 
90 percent of the time, and when you sat on a panel where both 
the other judges were Democratic appointees, your decision was 
unanimous 100 percent of the time. So I think that speaks well 
for your overall record on civil rights. It certainly would 
indicate that you are not hostile to a legitimate civil rights 
complaint.
    You were asked about one environmental case by Senator 
Feinstein, and you ruled on that case based on standing. That 
is an important issue in the legal system, don't you agree?
    Judge Alito. It is--
    Senator Sessions. It is a well recognized principle.
    Judge Alito. It is a constitutional principle.
    Senator Sessions. It does not have to do with whether you 
were for or against the environmental issue in question, but 
simply whether the person bringing the suit was a legitimate 
person to bring that suit.
    Judge Alito. That's right, and it doesn't have anything to 
do with Congress's power to regulate the environment under the 
Commerce Clause. That's a separate question. Congress--it's 
totally separate. One has to do with the scope of congressional 
power. The other has to do with who can bring the suit.
    Senator Sessions. And with regard to environmental cases, 
you have rendered, according to one of these studies, you have 
authored six environmental opinions. You sided with the 
environmental regulatory body in five of those six opinions. 
Indeed, Professor Cass Sunstein, who has served as an advisor 
to the Democratic members of this Committee on changing the 
ground rules of confirmation, which was really a precursor to 
the commencement of a filibuster, Professor Cass Sunstein said 
this about you. Quote, ``This is a judge who, if the text is 
pro-environment, he is very likely to follow it. This is not 
someone who, like some judges, has a kind of pro-business 
orientation in his approach to the law.'' I think that is also 
a statement that you can take pride in.
    I would offer for the record, Mr. Chairman, another article 
by Stuart Taylor of the National Journal, Monday, December 12, 
in which he, in a very effective way, dismisses much of the 
complaints that have been made against Judge Alito--
    Chairman Specter. Without objection, that will be made part 
of the record.
    Senator Sessions. He says the systematic--this is his 
quote. ``The systematic slanting, conscious or unconscious, of 
this and many other news reports have helped fuel a 
disingenuous campaign by liberal groups and Senators to 
caricature Alito as a conservative ideologue. In fact, this is 
a judge who, while surely too conservative for the taste of 
liberal ideologues, is widely admired by liberals, moderates, 
and conservatives who know him well as a fair-minded, committed 
to apolitical judging and wedded to no ideological agenda other 
than restraint in the exercise of judicial power,'' close 
quote. I would offer that for the record.
    Also, with regard to your challenges on Vanguard, on 
matters that have impacted your integrity, I would like to 
quote from the American Bar Association's interview 
questionnaires that they did on you among those who know you 
well. This is what they put in their conclusion. ``Conclusion: 
We accept his explanation and do not believe these matters 
reflect adversely on him,'' talking about those conflict 
allegations. They go on to say, ``To the contrary, consistent 
and virtually unanimous comments from those interviewed include 
he has utmost integrity, he is a straight-shooter, very honest 
and calls them as he sees them.'' These are quotes from 
different lawyers and judges. ``His reputation is impeccable. 
You could find no one with better integrity. His integrity and 
character are of the highest caliber. He is completely 
forthright and honest. His integrity is absolutely 
unquestionable. He is a man of great integrity.'' And then they 
conclude, ``On the basis of our interviews with Judge Alito and 
with well over 300 judges and lawyers and members of the legal 
community nationwide, all of whom know Judge Alito 
professionally, the Standing Committee concluded that Judge 
Alito is an individual of excellent integrity.'' So 
congratulations on that finding.
    Judge Alito, many important decisions of the Supreme Court 
in recent years touch on the deepest values of the American 
people. They deal with things like Kelo and the property that 
they own, matters of faith and morality, decency and 
pornography. Do you have a sense of where the American people 
are with regard to these issues? Can you indicate to us that 
you have any appreciation for the legitimacy of some of those 
concerns?
    Judge Alito. Well, I do, Senator, and I--
    Senator Sessions. Regardless of the technical laws it 
involves, but just that fundamental policy.
    Judge Alito. I think I have an appreciation of people's 
concerns. Certainly with respect to Kelo, which is a recent 
decision and I can't comment on how I would rule on any matter 
concerning that, and it involves the power to take property for 
public use through eminent domain, I certainly understand that 
what occurred in that case, which, as I understand it, was the 
taking of the homes of people of modest means for the purpose 
of building a large commercial facility that would be--that was 
thought by the city to be beneficial to the economic welfare of 
the city, but this is an enormous blow to the people whose 
homes are being taken. People live in homes and they have a 
sentimental attachment to them. They have memories that are 
attached to the homes. They can remember what happened in 
particular rooms. The neighborhood means something to them, the 
neighbors mean something to them. The things in the home mean 
something to them. And taking their home away and giving them 
money in return, even if they get fair market value for the 
home, is still an enormous loss for people. So I certainly can 
appreciate what they feel in that respect.
    Senator Sessions. Well, let's talk about that a little bit. 
Because this is a matter of real power and it is a matter that 
the Congress gets drawn into sometimes whether we want to be 
drawn into it or not. We have discussed Roe v. Wade, people 
remain concerned about that. The polling numbers continue to 
drift against that decision. We talk about the district court 
opinion I believe Senator Brownback raised, a Federal court, on 
marriage, on redefining the traditional statutory definition on 
marriage contained in States and in State constitutions around 
the country. In Kelo, it is pretty clear to me that the Court 
just changed the meaning of the words. The Constitution said 
you could take property for public use; the Court felt that was 
too restrictive, basically, and a majority just changed it to 
say you could take property for a public purpose, which could 
include some private redevelopment on the area, in their minds.
    See, that is not founded in the Constitution. That is an 
overreach, in my opinion. On the Pledge of Allegiance case, the 
Newdow case, the Ninth Circuit, which includes approximately 20 
percent of the people in the United States, ruled that the 
Pledge of Allegiance was unconstitutional. The Supreme Court 
sort of side-stepped the fundamental issue and said that there 
was not standing on behalf of Mr. Newdow, and sent that back to 
a lower court. He now got him some plaintiffs that apparently 
have standing. He has taken it to the district court in 
California, and he has won that case. They have concluded that 
the Ninth Circuit law remains in effect so that 20 percent of 
the population of the United States, really, are not able, if 
you follow that opinion, to render the Pledge of Allegiance. 
Yet we have chaplains and In God We Trust in the Senate chamber 
and those kind of issues.
    So I don't believe that that is founded in the 
Constitution. I think the American people do not. And they are 
asking some real questions of us. So I guess I won't try to get 
you drawn into those.
    But I want to do this. The doctrine of judicial review, 
Marbury v. Madison. You already indicated Hamilton didn't favor 
that. But the Court found it. But it is not expressly stated in 
the Constitution, is it?
    Judge Alito. No, it's not.
    Senator Sessions. And it definitely shifts the balance of 
power between the branches because the Court now has the power 
to, by a stroke of its pen, five of its nine members, to strike 
down any law they say violates the Constitution. That is true, 
is it not?
    Judge Alito. Well, they decide constitutional questions, 
and the doctrine has been established since Marbury v. Madison, 
that's right.
    Senator Sessions. Well, but there are explicit powers given 
to the Congress. And Senator Coburn raised some of those. 
Article III, Section 2 has these words: ``In all the other 
Cases before mentioned,''--this is the Constitution's grant of 
power to the courts--``the supreme Court shall have appellate 
Jurisdiction, both as to Law and Fact, with such Exceptions, 
and under such Regulations as the Congress shall make.''
    Now, those words are in the Constitution, are they not?
    Judge Alito. Yes, they are.
    Senator Sessions. And as you said, if the words are 
expected to have some meaning, you would give them some 
meaning, at least, would you not?
    Judge Alito. I think that's undisputed, that they have a 
meaning.
    Senator Sessions. So Congress has some power here. We have 
not exercised that power, certainly in recent years. In Ex 
Parte McCardle, the Supreme Court in 1869 agreed that, though 
the judicial power is conferred by the Constitution, it is 
conferred under such exceptions as Congress shall make. Then 
there is the Impeachment power--the Senator mentioned that. And 
then the establishment of lower courts. Article III, Section 1 
says, ``The judicial Power of the United States, shall be 
vested in one supreme Court, and in such inferior Courts as 
Congress may from time to time establish.'' That indicates that 
Congress can establish or disestablish courts, does it not?
    Judge Alito. I think it's undisputed that the so-called 
inferior courts--and I don't particularly like the term as a 
judge of the court of appeals--but the so-called inferior 
courts are totally the creation of Congress.
    Senator Sessions. Now I would just ask you to comment on 
this thought. Chief Justice Roberts, in his hearings--and I 
asked him some questions similar to this--indicated that he was 
concerned about activism by the Court, overreaching by the 
Court, and he felt that this overreaching had the--created a 
danger that it could undermine respect for law in our country. 
Do you share that view?
    Judge Alito. I agree that overreaching by the courts can 
undermine respect for law. Our authority is based on the belief 
that what we are doing is different from what Congress is 
doing. Because otherwise, why would people tolerate our 
functioning? Nobody elects us. And we have a system of 
Government that is fundamentally democratic. It's based on the 
sovereignty of the people. So how do you explain an unelected 
branch of Government making decisions?
    So all of our authority is based on the idea, which was 
expressed in Marbury v. Madison, that the Constitution is law. 
It's not conceptually different from statutory law. And our job 
is to interpret the Constitution--it has a meaning--and apply 
it to the situations that come up.
    Senator Sessions. Well, right now there is a strong feeling 
that I share that the Court on some very important issues that 
people care deeply about is exceeding its authority. They are 
calling on me and members of--and those of us in Congress to do 
something about it. I get a lot of letters saying withdraw 
jurisdiction, why aren't you supporting legislation to do that? 
And Congress, I think, has shown restraint.
    But I hope that when you become a member of this august 
body, the Supreme Court--and I believe you will--that you will 
take those concerns with you and share with the members of the 
Court that their views on policy issues are of no greater value 
than mine, frankly--at least in my opinion they are not--and 
that the Congress has been showing some restraint here. But we 
really want the Court to be more modest and to draw back from 
some of its intervention in policy issues that are causing much 
angst around the country.
    If you want to comment on that. Otherwise, Mr. Chairman, I 
would yield my time.
    Judge Alito. Well, Senator, I think your policy views are 
much more legitimate than the policy views of the judiciary 
because Members of Congress are elected for the purpose of 
formulating and implementing public policy. And members of the 
judiciary are appointed for the purpose of interpreting and 
applying the law.
    Senator Sessions. Thank you very much.
    Chairman Specter. Thank you, Senator Sessions.
    We will now stand in recess until 4:20.
    [Recess 4:04 p.m. to 4:20 p.m.]
    Chairman Specter. The hearing will resume.
    We will turn to Senator Feingold for 20 minutes.
    Senator Feingold. Thank you, Mr. Chairman.
    Good afternoon, Judge. I hope, if nothing else, you 
associate me with breaks in the proceedings, because it seems 
to happen every time my questions are up.
    Judge, yesterday I asked you about your preparation for 
these hearings over the past few months with a variety of 
practice sessions. You confirmed that you had had these 
sessions and that a great variety of subjects came up in them, 
and that is fine. I know this is not an easy process, and I 
would certainly expect you to prepare in this way.
    What I want to ask now, though, is simply if you can 
provide a list of all the people who participated in any of 
those practice sessions, and I would request that the folks 
here sitting behind you in back of the Department of Justice 
help you put that list together this evening and get it to us 
tomorrow morning so that we have time to ask about it during 
tomorrow's session, if necessary. Can you do that for me, 
Judge?
    Judge Alito. I certainly have no objection to that.
    Senator Feingold. Thank you very much. Now I want to get 
into a subject that really requires some attention here and 
hasn't had much attention given the important role that it 
plays in the job of a Supreme Court Justice, and that is the 
issue of capital punishment or the death penalty.
    Judge Alito, the idea that defendants are entitled to 
effective legal representation is a fundamental part of our 
criminal justice system. In fact, of course, it is enshrined in 
the Sixth Amendment's guarantee that the accused have ``the 
assistance of counsel for his defense.'' Nowhere is this 
guarantee obviously more important than in cases where the 
defendant's life is on the line. In a death penalty case you 
decided in 2004 called Rompilla v. Horn, you rejected the 
defendant's argument that his attorneys had failed to do an 
adequate investigation to prepare for his sentencing hearing. 
As a result, key mitigating evidence about his horrible 
childhood was never presented to the sentencing jury, which 
ultimately sentenced him to death.
    As you know, the Supreme Court reversed your decision, 
ruling that the defense attorney's failure to even review 
evidence they knew the prosecution was going to introduce at 
sentencing violated the Sixth Amendment. This case was one of 
several Supreme Court cases in recent years to express 
particular concern--particular concern about the adequacy of 
indigent representation and the fairness of the capital 
sentencing process.
    In fact, in several recent decisions, including Rompilla, 
the Court has overturned death sentences because defense 
attorneys did not do adequate investigations to turn up 
potential mitigating evidence and because jury instructions did 
not clearly allow jurors to consider any and all possible 
mitigating evidence. And Justice O'Connor, whom you have been 
nominated to replace, has, of course, often been the author or 
the deciding vote in these cases.
    Judge, what are your views on these issues? Is the Court's 
recent emphasis on the importance of fully developing and 
considering mitigating evidence in capital sentencing 
proceedings headed in the right direction?
    Judge Alito. It is vitally important that all criminal 
defendants receive effective representation, and I could not 
agree with you more strongly that this is of the utmost 
importance in death penalty cases where so much is at stake.
    In the Rompilla case that you mentioned, we had to apply 
the standard of review that is set out in the habeas corpus 
statute as revised by Congress. And where there has been a 
determination on the merits by the State courts on an issue 
like whether a defendant received effective representation 
within the meaning of the Sixth Amendment and where the State 
courts have applied the correct legal standard, we are not 
allowed to disturb their decision unless what they did was 
unreasonable.
    Senator Feingold. Well, let me ask you then, because you 
are obviously pointing out the fact that you approached the 
Rompilla case as an appellate court judge bound by prior 
Supreme Court precedent, and yet you found that no 
constitutional violation had occurred. And I believe when we 
discussed this case in my office, you indicated you still think 
your decision was correct.
    So the question now is: Would your approach have been any 
different as a Supreme Court Justice? What about your decision 
on the outcome of the case?
    Judge Alito. Well, my decision, I spoke directly to the 
issue in the Rompilla case as I saw it when it came before me. 
And my evaluation of the performance of the attorneys in that 
case was fully set out in the opinion that I wrote. They were--
one of them was a very experienced criminal defense attorney. 
He was the head of the public defender's office, and there was 
no dispute whatsoever that this was an attorney of competence 
and experience and great dedication to the defendant in this 
case, and that attorney was assisted by another attorney in the 
office, and together they were extremely dedicated to this 
case.
    Now, a number of judges took a look at this. All of the 
Pennsylvania judiciary, with the possible exception of one 
justice--I can't remember clearly whether there was one justice 
who disagreed--thought that there had been effective 
representation provided in this case.
    Senator Feingold. This really isn't about the difference 
between being on the court of appeals and the Supreme Court. 
You apparently, based on what you know, would have ruled the 
same way had you been on the Supreme Court.
    Judge Alito. Well, my evaluation of the facts of the case 
would be the same. Now, if a case came--
    Senator Feingold. In other words, that there was not a 
violation of the Sixth Amendment.
    Judge Alito. Well, I should add, however, that if a case 
came up in the future, the Supreme Court's decision in that 
case is a precedent that I would have to deal with. And they--
    Senator Feingold. Fair enough.
    Judge Alito [continuing]. Expressed a view as to how the 
standard applies to the facts of the case. It was a 5-4 
decision. But it would be a precedent that I would follow.
    Senator Feingold. Well, now let's go back to my original 
question, which is, Do you think the Supreme Court has been 
heading in the right direction in these cases?
    Judge Alito. Well, I think that the Supreme Court is 
correct in viewing this as a very important part of the 
criminal justice system, and in particular, a very important 
part of the representation of clients in Eighth Amendment 
cases.
    Senator Feingold. Isn't the Court doing more than that? The 
Court is moving in the direction of giving greater recognition 
and ruling on the inadequacy of counsel in this case.
    Judge Alito. And I think it's entirely appropriate that 
there be a searching review in every case as to whether a 
defendant in any criminal case, but in particular, of course, 
in a capital case, has received the representation that the 
defendant is entitled to under the Sixth Amendment.
    Senator Feingold. Do you think your replacing Justice 
O'Connor will change the direction of the Court in this regard?
    Judge Alito. I would approach these cases under the law 
that the Supreme Court has established in this area, with the 
recognition that I have attempted to explain of how important I 
believe this right is in all cases and in death cases in 
particular. When the Supreme Court reviews a case that has come 
up through the Federal system, in a habeas proceeding, then the 
Supreme Court, just like my court, should apply the standards 
that are set out in the habeas corpus statute.
    Senator Feingold. Let's go to a different one. Wiggins v. 
Smith is a Supreme Court case decided in 2003 also addressing 
inadequate mitigation investigation. In that case, Justice 
O'Connor, writing for the majority, found trial counsel 
ineffective for failing to conduct an adequate investigation 
into possible mitigating evidence that could be presented at 
sentencing. Had the attorney done adequate investigation, he 
would have found abundant evidence of childhood physical and 
sexual abuse as well as diminished mental capacity. Do you 
think that case was right decided?
    Judge Alito. Well, I discussed Wiggins in Rompilla, and I 
thought that it was distinguishable. Wiggins, as described, as 
I recall it, was a case where the attorney had reason--the 
attorney simply didn't conduct an investigation without any 
sound strategic reason for not investigating a particular 
matter.
    Senator Feingold. So you have no sense that that was 
wrongly decided?
    Judge Alito. I have no sense that that was wrong. I thought 
it was different from the Rompilla case.
    Senator Feingold. According to two independent studies, 
your record in death penalty cases has been more anti-capital 
defendant even than most Republican-appointed judges. In fact, 
in every disputed capital case that you heard, that is, cases 
in which a panel of three judges did not all agree, you would 
have ruled against the defendant. How do you explain this 
seeming tendency to favor the Government in capital cases?
    Judge Alito. I have only sat on a handful of capital cases, 
and in some of them I voted to uphold the death penalty, and in 
a number of them I voted to strike down the death penalty. In 
Carpenter v. Vaughn, I voted to strike down the death penalty. 
In the most recent death penalty case I sat on, the Bronshtein 
case, I voted to strike down the death penalty because of the 
procedure that was followed at the penalty phase in that case. 
In the Cruz case, I was part of a panel that vacated a decision 
of the district court rejecting the claim of a habeas 
petitioner. There have been other cases where I voted to uphold 
the death penalty.
    Senator Feingold. Justice Stevens recently gave a speech at 
the American Bar Association in which he raised a number of 
serious concerns about the administration of the death penalty. 
He pointed to aspects of capital proceedings that he believes 
unfairly tilt the balance in favor of the prosecution both at 
the trial and sentencing stages. Specifically, he raised 
concerns about the jury selection process, arguing that jurors 
are questioned so extensively about the death penalty that they 
might assume their role is primarily to decide this sentence 
for a presumptively guilty defendant.
    He also argued that a representation of indigent defendants 
remains an issue that has not been adequately addressed, and he 
noted that elected State judges may have a ``subtle bias'' in 
favor of death because they have to face re-election.
    Now, I know all of us on this Committee have the greatest 
respect for State court judges, but we all can understand the 
pressures of a re-election campaign. So what are your views on 
the potential of these three issues--the jury selection, the 
inadequate representation, and an elected judiciary--to skew a 
capital prosecution against the defendant? And do you share 
these concerns that Justice Stevens outlined?
    Judge Alito. I certainly share a concern that there should 
be a fair procedure for the selection of jurors. That certainly 
is a concern. The issue of the election of judges at the State 
level or the appointment of judges at the State level is a 
matter for State legislatures to decide, and within my circuit, 
we have three States. In New Jersey and in Delaware, the State 
judiciary is appointed; in Pennsylvania, the State judiciary is 
elected. And I've had the opportunity to view the work of all 
three of the Supreme Courts in those States, and I think they 
all are of a very high quality. I think the elected judges in 
Pennsylvania do a conscientious effort to carry out their 
responsibilities, and I think--I have a high regard for the 
judiciary in all of those States.
    So based on the experience of--on my experience, I think 
you can have highly competent and certainly conscientious State 
judges who are appointed and the same sort of judges who are 
elected. And, of course, we do have habeas corpus and it is an 
important--it's important to make sure that constitutional 
rights are respected, and the scope of the review that we 
conduct under habeas is up to Congress. Congress reformulated 
the standards in the AEDPA, in the Antiterrorism and Effective 
Death Penalty Act of 1996, limiting our review, and it's our 
obligation to conduct the kind of review that Congress has 
indicated we should be conducting.
    Senator Feingold. Well, Judge, it sounds like you perhaps 
have a lesser level of concern about some of these matters than 
Justice Stevens. The only thing I would note is that one of the 
most striking things about the history of Justices that have 
gone to the Court sometimes who are pro-death penalty, an 
amazing number have come to the conclusion that this is the one 
area where, once they get there, they realize that these 
problems are much more severe than they might have thought 
before they became Supreme Court Justices, and I, should you be 
confirmed, look forward to how you react to these issues after 
you've become a Supreme Court Justice, should you do so.
    In the past few years, the Supreme Court has limited the 
application of the death penalty based on the Eighth 
Amendment's ban on cruel and unusual punishment. In Atkins v. 
Virginia, the Court ruled that mentally retarded inmates cannot 
be executed, and in Roper v. Simmons, it held that individuals 
who were minors when they committed capital crimes cannot be 
executed as punishment for their actions.
    Do you agree with these decisions?
    Judge Alito. Those decisions applied the standard that the 
Supreme Court formulated sometime earlier in determining 
whether the imposition of the death penalty on particular 
categories of defendants would violate the Eighth Amendment, 
and they looked to evolving standards of decency. And that is a 
line of precedent in the Supreme Court, and those are 
precedents of the Supreme Court, and they're entitled to the 
respect of stare decisis.
    Senator Feingold. Can you just tell me what your general 
approach to the Eighth Amendment would be in the context of the 
death penalty?
    Judge Alito. My approach would be to work within the body 
of precedent that we have. As I mentioned earlier, the Supreme 
Court has devoted a lot of attention to this issue since 1976 
when it held that the death penalty is permissible, provided 
that adequate procedures are implemented by the States so that 
the decision about who receives the death penalty and who does 
not is not arbitrary and capricious, so that there is a 
rationality to the selection process. And the rules in this 
area are quite complex, but I would work within the body of 
precedent that is available.
    Senator Feingold. Let me go to a topic that we have talked 
about before. We had a good discussion of the recusal issue in 
the Vanguard case yesterday, and I hadn't intended to ask more 
about it. But your discussions with Senator Kennedy and Senator 
Hatch today make further questioning a little bit necessary.
    Senator Hatch noted that the Committee's questionnaire 
asked about financial conflicts of interest during the period 
of your initial service as a judge. Now, the reason for wording 
the question like that, of course, is that nominees have no way 
of knowing when they are up for confirmation whether they will 
have the same investments 5, 10, 25 years later. The Committee 
obviously can't ask for a comprehensive list of possible future 
financial conflicts. So, for example, if you have stock in 
Microsoft and you list that as a financial conflict on your 
questionnaire, you still have to recuse yourself from a 
Microsoft case 15 years later if you still have the stock. 
Isn't that right?
    Judge Alito. If you're required to recuse yourself if you 
have stock in Microsoft, even one share, you must recuse 
yourself.
    Senator Feingold. You still have to recuse yourself even if 
it is 15 years later, right?
    Judge Alito. Certainly that's true.
    Senator Feingold. So the question in the Senate 
questionnaire about financial investments is not time-limited 
based on the question being about initial service on the court, 
is it?
    Judge Alito. Well, I want to be clear on my answer 
respecting this as it bears on the Monga case, the Vanguard 
case, because that's what we're discussing.
    The wording of the Senate questionnaire was not the reason 
for the way I settled the case, and I've tried--
    Senator Feingold. I just want to know if you have any 
question in your mind why the question is phrased that way on 
the questionnaire.
    Judge Alito. Reading the question, it does seem to me that 
``initial period of service'' is a temporal limitation.
    Senator Feingold. I want to be sure we don't leave the 
impression from these hearings that people don't have an 
obligation to recuse themselves from a financial conflict just 
because of the passage of time. You have already indicated if 
that financial conflict continues, that is an indefinite and 
permanent restriction until that financial holding is gone. 
Isn't that--
    Judge Alito. Absolutely, and that's under the Code of 
Judicial Conduct, Canon 3(C)(3) I think it is. If you have a 
financial interest, you must recuse yourself, and that's, of 
course, a continuing obligation.
    Senator Feingold. It is not temporal?
    Judge Alito. The obligation to comply with the code of 
conduct for Federal judges applies to every Federal judge for 
as long as they serve.
    Senator Feingold. And that is why I have to say that I am a 
bit frustrated that people are trying to obscure what I think 
was pretty clear testimony by you yesterday by bringing up this 
period of initial service issue. In response to Senator 
Kennedy, you made it clear again that your failure to recuse in 
the Vanguard case had nothing to do with the suggestion that 
your promise was time-limited. But I want to get this on the 
record again, and hopefully this will lay any confusion to 
rest. This idea that your promise to the Committee was somehow 
limited to your initial service on the court, that was not the 
reason you failed to recuse yourself from the case in 2002, was 
it?
    Judge Alito. It was not the reason in 2002. I do think 
reading the question, it has a temporal limitation. If that 
wasn't the intent, I think people could read it--certainly when 
you say ``initial period of service,'' people will read that to 
mean--
    Senator Feingold. This has nothing to do with why you 
didn't recuse yourself.
    Judge Alito. It did not have to do with what I did in the 
Monga case.
    Senator Feingold. And it is not as if you noticed that 
Vanguard was a party, remembered your promise to the Committee, 
and then made a specific decision not to recuse because the 
promise had expired?
    Judge Alito. No, it was not that at all.
    Senator Feingold. And you finally added Vanguard to your 
standing recusal list in December 2003 and it is on your list 
today. Isn't that right?
    Judge Alito. It is on my list today.
    Senator Feingold. Do you plan to recuse yourself from 
Vanguard cases that come before the Supreme Court if you are 
confirmed for as long as you keep your Vanguard mutual funds?
    Judge Alito. Well, if I am confirmed, I will very strictly 
comply with the ethical obligations that apply to Supreme Court 
Justices. Supreme Court recusals are a bit different from 
recusals in the court of appeals, and so the obligation to sit 
when you are not recused is one that has to be considered very 
seriously by somebody on the Supreme Court or, I would think, 
on a State supreme court, for example.
    Senator Feingold. Is there any question, if you still have 
holdings in Vanguard and a case comes before the Supreme Court 
that you should recuse yourself?
    Judge Alito. Well, under the Code of Judicial Conduct, I 
don't believe that I am required to recuse myself in Vanguard 
cases. And I would strictly comply with the ethical obligations 
that apply to a Supreme Court Justice.
    Senator Feingold. You are not going to make a promise here 
that you are not going to rule on Vanguard cases while you have 
holdings in Vanguard when you are on the Supreme Court?
    Judge Alito. Well, what I want to say about recusals on the 
Supreme Court is that the decisionmaking process on the Supreme 
Court, or any court with a fixed membership, a fixed number of 
jurists who sit on each case, recusal in that situation 
creates--affects the decisionmaking process because instead of 
having 9 Justices, you have 8, you have the potential for a 
tie.
    On the court of appeals, that is a much less significant 
consideration because we always sit in panels of three, we have 
many judges on our court and many cases, so if I don't sit on a 
case involving Vanguard, it just means somebody else will sit 
on the case involving Vanguard, it will still be decided by a 
three-judge panel.
    Senator Feingold. I would add on that point that that may 
be true, but it is also true that the Supreme Court is the last 
stop, and if somebody does not recuse himself, there is really 
no remedy, and that is why it is so important that somebody 
would recuse himself.
    Judge Alito. It is very important for somebody on the 
Supreme Court to fulfill strictly the obligation not to sit 
when the person should not sit, but it's also important for--
given the matters that I just discussed--for a Justice to sit 
if the Justice is not required to recuse.
    Senator Feingold. Judge, my time is up.
    Mr. Chairman, we do not yet have the communication from 
Judge Alito to the clerk on December 10th, 2003 that caused 
Vanguard to be added to his standing recusal list, and whether 
that was an e-mail or a form that Judge Alito filled out or 
something else, we have requested it, so I am just asking for 
the assistance of the Chairman in getting that document so we 
can complete the record.
    Chairman Specter. Senator Feingold, we will take a look at 
it and see what the facts are.
    Senator Feingold. Thank you.
    Chairman Specter. Thank you, Senator Feingold.
    Senator Graham?
    Senator Graham. Thank you, Mr. Chairman.
    Judge Alito, maybe we could continue with the Vanguard 
issues just for a moment, and I know you have been asked every 
conceivable combination of questions, but Senator Feingold is 
very sincere about ethics in Government. He practices what he 
preaches, and he has been one of the leaders trying to make 
this place operate better. My impression of you is that you are 
a good model for judges in terms of ethical conduct based on 
what everybody says who knows you. I do not claim to be a close 
associate of yours, but the ABA has looked at this and said 
that it did not reflect poorly on you. Three hundred lawyers 
and judges who know you have said that you are just really sort 
of what we want in a judge, and maybe that is not enough, but 
that is a pretty good start. I do not think you could get 300 
people to say that about me or some of us, but.
    The question I have, the criminal prosecutor or lawyer in 
me has this question to ask: why would you make a conscious 
decision not to recuse yourself? Why would Judge Alito sit down 
in the corner of a room and say, ``I think I've got a conflict, 
but I'm just going to let it go and hear the case anyway?'' I 
am baffled as to why you would make a conscious decision in 
this situation not to recuse yourself. Do you have an 
explanation?
    Judge Alito. There's no reason why I would make such a 
conscious decision. I had nothing whatsoever to gain by 
participating in this case, and nobody has suggested that I 
did. This case involved some thousands of dollars. Vanguard 
manages billions of dollars of funds. The idea that the outcome 
of this case could have some effect on the mutual funds that I 
hold is beyond preposterous, and I don't understand anybody to 
have suggested anything like that.
    Senator Graham. I have been asking myself that question 
quietly, what is in it for this guy? Why would he bring all of 
this grief upon himself consciously? Is it to intentionally 
break a promise to the Senate so you would go through hell for 
3 days? I do not think so. So I am going to accept your word, 
like the ABA, and I am going to move on, and I do not know if 
anybody else will.
    Now, your days at Princeton, the more I know about 
Princeton, it is an interesting place.
    [Laughter.]
    Senator Graham. What is an eating society?
    Judge Alito. It's a--the eating clubs are privately owned 
facilities where upperclassmen join for the purpose of taking 
their meals. The first 2 years, when I was there--the situation 
is now a bit more diversified as far as eating is concerned--
but when I was there, and traditionally, the freshmen and 
sophomores ate in university dining halls, and then as juniors 
and seniors they had to find other places to eat, and these 
were private facilities.
    Senator Graham. What is a selective eating society?
    Judge Alito. It's one where you apply to be a member like a 
fraternity, and you go through a process that is somewhat 
similar to that, and they select you if they like you.
    Senator Graham. Were you a member of a selective eating 
society?
    Judge Alito. No, I was not.
    Senator Graham. Did people not like you, or--
    [Laughter.]
    Senator Graham [continuing]. You just did not apply?
    Judge Alito. I didn't apply.
    Senator Graham. Let me tell you who did apply. Donald 
Rumsfeld was a member of a selective eating society at 
Princeton, and that is an interesting comment I thought. 
Woodrow Wilson, Jim Leach, good friend of mine over in the 
House. Mitch Daniels, the Governor of Indiana, was a member of 
a nonselective eating society. Senator Claiborne Pell was a 
member of nonselective eating societies. And other Princeton 
alumni who are Members of Congress could not verify their 
participation or lack thereof in eating clubs, including 
Senator Sarbanes, Bond, Frist and Representative Marshall, and 
I promise you, I will get to the bottom of that before this is 
all done.
    [Laughter.]
    Senator Graham. This organization that was mentioned very 
prominently earlier in the day, did you ever write an article 
for this organization?
    Judge Alito. No, I did not.
    Senator Graham. Some quotes were shown from people who did 
write for this organization that you disavowed. Do you remember 
that exchange?
    Judge Alito. I disavow them. I deplore them. I--they 
represent things that I have always stood against, and I can't 
express too strongly.
    Senator Graham. If you do not mind, the suspicious nature 
that I have is that you may be saying that because you want to 
get on the Supreme Court, that you are disavowing this now 
because it does not look good. Really, what I would look at to 
believe you or not--I am going to be very honest with you--is 
how have you lived your life? Are you really a closet bigot?
    Judge Alito. I'm not any kind of a bigot. I'm not--
    Senator Graham. No, sir, you are not. And you know why I 
believe that? Not because you just said it, but that is a good 
enough reason because you seem to be a decent, honorable man. I 
have reams of quotes from people who have worked with you, 
African-American judges--I have lost my quotes, I do not know 
where they are--but glowing quotes about who you are, the way 
you have lived your life, law clerks, men and women, black and 
white, your colleagues who say that ``Sam Alito, whether I 
agree with him or not, is a really good man.''
    And do you know why I believe you when you say that you 
disavow those quotes? Because of the way you have lived your 
life and the way you and your wife are raising your children. 
Let me tell you this, guilt by association is going to drive 
good men and women away from wanting to sit where you are 
sitting. And we are going to go through this ourselves as 
Congressmen and Senators. People are going to take the fact 
that we got a campaign donation from somebody who is found out 
to be a little different than we thought they were, and our 
political opponents are going to say, ``Aha, I got you.'' And 
we are going to say, ``Wait a minute. I didn't know that. I 
didn't take the money for that reason.'' You know what? I am 
going to believe these Senators and Congressmen for the most 
part because that is the way we do our business. We meet people 
here every day. We have photos taken with people, and sometimes 
you wish you did not have your photo taken. But that does not 
mean that you are a bad person because of that association.
    Judge Alito, I am sorry that you have had to go through 
this. I am sorry that your family has had to sit here and 
listen to this.
    Let's talk about another time not so long ago, and another 
judge, and some of her writings, and see if the Senate is 
changing for the better or for the worse. Justice Ginsburg, who 
I need to go have a cup of coffee with because I constantly 
bring her up, and I do not dislike the lady, I admire her. But 
let's put it bluntly, under today's environment from a 
conservative's point of view, she would have a very hard time, 
because Justice Ginsburg was the General Counsel for the ACLU 
from 1973 to 1980, and if you want me to tar somebody by their 
association, I can put up some pretty wild cases from my point 
of view where she was involved. But you know what? I respect 
her because her job as an attorney for the ACLU is to represent 
the most unpopular causes. As far as I can tell, during her 
time with the ACLU, she was honest, she was ethical, and she 
fought for the most unpopular causes, and for that, I respect 
her.
    But you put some things down on an application about your 
view of the law in Roe v. Wade, and it is taking an 
unbelievable effort on your part, I think, to convince people 
that when I was a lawyer I did this, when I applied for a job I 
was doing this, and as a judge I will do this.
    Here is what Justice Ginsburg said in an article she wrote 
titled ``Some Thoughts on Autonomy and Equality in Relationship 
to Roe v. Wade.'' ``The conflict, however, is not simply one 
between a fetus's interest and a woman's interest, narrowly 
conceived. Nor is the overriding issue State versus private 
control of a woman's body for a span of 9 months. Also in the 
balance is a woman's autonomous charge of her full life's 
course, her ability to stand in relation to man, society and 
the State as an independent self-sustaining equal citizen.''
    She wrote further, ``As long as the Government paid for 
childbirth, the argument proceeded, public funding could not be 
denied for abortion, often a safer and always a far less 
expensive course short and long term. By paying for childbirth 
but not abortion, the Government increased spending and 
intruded upon or steered a choice. Roe had ranked as a woman's 
fundamental right. The public funding of abortion decisions 
appear''--denying a requirement of public funding appear 
``incongruous following so soon after the intrepid 1973 ruling. 
The Court did not adequately explain why the fundamental choice 
principle and trimester approach embraced in Roe did not bar 
the sovereign, at least at the previability stage of pregnancy, 
from taking sides and being required to provide funding for the 
abortions of poor women.''
    If that writing does not suggest an allegiance to Roe, if 
that writing does not suggest from her point of view as the 
author of that article, not only is Roe an important 
constitutional right, the Government ought to pay for abortions 
in certain circumstances. If she were here today, and a 
Democrat President had nominated her, and we take on the role 
that our colleagues are playing against you, not only would she 
not have gotten 96 votes, I think she would have been for a 
very rough experience. And what has changed?
    Justice Ginsburg openly expressed a legal theory about Roe 
v. Wade. My question to you, if I am arguing a case that would 
alter Roe v. Wade, would I have the ability, because of her 
prior writings, to ask her to recuse herself based on those 
writings alone?
    Judge Alito. I don't think you would, Senator. I think it's 
established that prior writings of a member of the judiciary do 
not require the recusal of that member of the judiciary.
    Senator Graham. I think you are absolutely right, Judge. 
Let me tell you what she said at the hearing when it was her 
time to sit where you are sitting. ``You asked me about my 
thinking on equal protection versus individual autonomy. My 
answer is that both are implicated. The decision whether or not 
to bear a child is central to a woman's life, to her well-being 
and dignity. It is a decision that she must make for herself. 
When Government controls that decision for her, she is being 
treated as less than a fully adult human responsible for her 
own choices.''
    A sentiment that I think our pro-choice colleagues share, a 
sentiment that I disagree with because I think the decision 
does affect humanity, and that is the unborn child. I do not 
question her religion. I do not question her patriotism. She 
gave an answer that was very honest and was very direct, and 
pro-life Republicans and pro-life Democrats never thought about 
disqualifying her. She did not go through what you went 
through. Pro-life Republicans and pro-life Democrats set her 
comment aside and judged her based on her whole record and 
believed she was worthy to sit on the Supreme Court, and she 
got 96 votes.
    And what you have said in your writings about the other 
side of the issue pales in comparison to what she said before 
she came to this body.
    I don't know how many votes you are going to get. You are 
going to get confirmed, and it is not going to be 96. Judge 
Roberts got 78, and I am afraid to say that you are probably 
going to get less.
    To my colleagues, I know abortion is important. It is 
important to me, it is important to you. I know it is an 
important central concept in our jurisprudence. But we can't 
build a judiciary around that one issue. We can't make judges 
pledge allegiance to one case. We can't expect them to do 
things that would destroy their independence. You can vote yes, 
you vote no. You can use any reason you would like. I just beg 
my colleagues, let us not go down a road that the country can't 
sustain and the judiciary will not be able to tolerate.
    People set aside her writing, set aside her candid 
statement and gave her the benefit of the doubt that she would 
apply the law when her time came. She replaced Justice White. 
We knew that that vote was going to change. I don't think any 
Republican had any doubt that if there was a Roe v. Wade issue, 
she would vote differently than Justice White, but you never 
know.
    The one thing I can tell the public about you and John 
Roberts is that you are first-round NFL draft picks, but I 
don't know what you are going to do ten or 20 years from now 
because I think you are men of great integrity, and I may be 
very well disappointed in some of your legal reasoning, but I 
will never be disappointed in you if you do your job as you see 
it fit.
    The last thing I am going to read--do you know Cathy 
Fleming?
    Judge Alito. I do. She was an attorney, a supervisor in the 
U.S. Attorney's Office in New Jersey.
    Senator Graham. Did you ask her to write a letter on your 
behalf?
    Judge Alito. I did not, no.
    Senator Graham. ``Judge Alito did not ask me to write this 
letter. I volunteered.''
    [Laughter.]
    Senator Graham. I am glad you said that, by the way.
    [Laughter.]
    Senator Graham. ``I am a lifelong Democrat. I am the 
president-elect of the National Women's Bar Association. I 
chair the corporate integrity and the white collar crime group 
at a national law firm. I do not speak on behalf of either my 
law firm or the Women's Bar Association. I speak for myself 
only. But by providing my credentials as an outspoken women's 
rights advocate and liberal-minded criminal defense attorney, I 
hope you will appreciate the significance of my unqualified and 
enthusiastic recommendation of Sam Alito for the Supreme Court. 
Sam possesses the best qualities for judges. He is thoughtful. 
He is brilliant. He is measured. He is serious. And he is 
conscious of the awesome responsibility imposed by his 
position. I cannot think of a better quality for a Supreme 
Court Justice. It is my fervent hope that politics will not 
prevent this extraordinary capable candidate from serving as an 
Associate Justice on the U.S. Supreme Court.''
    I share her hope. Thank you. I yield back my time.
    Chairman Specter. Thank you, Senator Graham.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman. Thank you, Judge 
Alito.
    First, I want to go over some of the things you said 
yesterday. Judge Alito, you testified yesterday that you would 
keep an open mind, isn't that right?
    Judge Alito. I did and I do.
    Senator Schumer. Now, are you aware of any nominee in the 
history of the Republic who has come before the Senate and 
testified he would keep a closed mind?
    Judge Alito. I am not aware of that, but I can only speak 
for myself. I will keep an open mind on all issues.
    Senator Schumer. You also testified yesterday that no one, 
not even the President, is above the law, right?
    Judge Alito. That's certainly true.
    Senator Schumer. Yes. And are you aware of any nominee in 
the history of this Republic of whatever political philosophy, 
judicial philosophy, or denomination who has come before the 
Senate--party denomination--and testified that, actually, there 
are a few people who are above the law?
    Judge Alito. I am not aware of a nominee like that, 
Senator.
    Senator Schumer. And you also testified that the Court 
should have respect for the Congress, isn't that right?
    Judge Alito. Yes.
    Senator Schumer. Do you know of any nominees who came 
before the Senate and said, ``The heck with you guys. I don't 
have any respect for the Congress.''
    Judge Alito. Senator, I can only speak for myself, and 
those are true expressions of what I think.
    Senator Schumer. I know that, but all I want to say is--and 
I don't doubt your sincerity in saying them, but this morning's 
newspapers were filled with headlines to the effect you would 
keep an open mind. I don't find that really to be news, nor do 
I find it very helpful in figuring out what kind of Justice you 
would be.
    My friends on the other side of the aisle have repeatedly 
said you have answered over 200 questions. Now it is probably 
300. But a response is not an answer, and you have responded to 
more than 300 questions, but in all due respect, you haven't 
answered enough of them. So again, I think we ought to make 
clear that at least to many of us here, we haven't gotten the 
answers to questions, yes or no, on some important issues.
    With that, I would like to return to Roe, something that we 
discussed yesterday at some length. You did say yesterday that 
you would keep an open mind. You said, first, you would look at 
stare decisis and then you would keep an open mind after going 
through stare decisis. But when I asked you questions about 
your prior statements to see if you would keep an open mind so 
I could make a determination, so the American people could make 
a determination, you really didn't answer the question.
    Now, we have heard pledges about having an open mind 
before. I want to read you one. It is another hearing, someone 
who sat in your chair. ``I have no agenda, Senator. I have 
tried here as well as in my other endeavors as a judge to 
remain impartial, to remain open-minded, and I am open-minded 
on this particular issue.'' I will bet you can guess who that 
nominee was, Clarence Thomas on the issue of the Constitution 
and the right to choose, the very issue I have asked you about, 
when he sat in that chair 15 years ago.
    So someone pledging an open mind doesn't tell us very much, 
because I think there were a lot of people on this Committee 
who were surprised--I wasn't there--were surprised by how 
Justice Thomas ruled based on his testimony. He didn't tell 
them enough.
    Now, yesterday, as you know, I asked you whether you 
believe today that the Constitution protects the right to an 
abortion, given that in 1985 you flatly said that it doesn't, 
and you didn't answer that question. Then I asked you whether 
the Constitution protects the right to free speech, and you 
said yes. Then I asked, how could you answer one and not the 
other, and your answer as to why you could discuss one and not 
the other was essentially that the words ``free speech'' appear 
in the Constitution, but that, and this is your words, ``the 
issue of abortion has to do with the interpretation of certain 
provisions in the Constitution, the 14th Amendment.''
    Now, Judge Alito, the words ``one person/one vote'' are not 
in the Constitution. You know that. And yet you said yesterday, 
and I think you repeated today to Senator Kohl and maybe 
Senator Feinstein, as well, but what you said yesterday was, 
quote, ``I think that one person/one vote is very well settled 
now in the constitutional law of our country.'' So you were 
able to answer on the basis of something as to whether it is 
settled, not being in the--the words are not in the 
Constitution.
    But you were queried by a few of my colleagues and you had 
a different explanation. Now, you said you can answer on the 
other issues because it is settled law. It is not going to come 
before the Court. So let us go over settled law a little bit.
    In case after case, you have been telling us--you have been 
comfortable telling us that certain cases are settled, and yet 
you won't use that word with respect to Roe. You have done it 
in a host of other cases and issues. I will read a few. ``So I 
think that one person/one vote is very well settled now in the 
constitutional law of our history,'' in response to Senator 
Kohl. ``The status of independent agencies, I think, is settled 
in the case law.'' That was in response to Senator Leahy. ``But 
I do think that most of those Commerce Clause cases in the 
years proceeding Lopez, the ones that come to mind, I think, 
are well-settled precedents,'' in reference to Senator 
Feinstein. ``I think the scope of immunity that the attorney 
has is now settled by Mitchell v. Forsythe and that's the 
law.''
    So can you answer the question? Is Roe settled or not? It 
is less of a concern which way you answer. I would just like 
you to answer the question. You can say, Roe is not settled. 
Roe can absolutely be reexamined. I think a lot of people think 
that is the answer you want to give, but it is controversial 
and you may not want to give it because it is controversial, 
even though some of these other issues will come before the 
Court. Commerce Clause cases will come before the Court. 
Certain types of one man/one vote cases will come before the 
Court. Certain types of administrative agencies will come 
before the Court.
    So why is it only when it comes to Roe you can't tell us 
whether it is settled, whether it is not settled, or how it is 
settled, and you can pick any formulation you want. Other 
judges have commented on Roe being settled. Lindsey Graham 
pointed out--he is not here, but Ruth Bader Ginsburg talked 
about her view and she still got a lot of votes on the other 
side of the aisle. The same might happen to you.
    So the question, Judge Alito--
    [Laughter.]
    Senator Schumer. The question, Judge Alito, is why won't 
you talk to us about Roe in terms of whether it is settled or 
not when you will about so many other issues, even issues that 
would come before the Court?
    Judge Alito. The line that I have tried to draw, and I've 
tried to be as forthcoming as I can with the Committee. I've 
tried to provide as many answers as I could, and obviously, I'm 
speaking here extemporaneously in response to questions. The 
line that I have tried to draw is between issues that I don't 
think realistically will come before the Court, and on those, I 
feel more freedom to respond. One person/one vote is an example 
of that--
    Senator Schumer. What about Commerce--sorry to interrupt, 
but we have limited time. What about Commerce Clause? Raich 
came to the court a couple of years ago. Raich has roots all 
the way back in Wickard v. Filburn. You talked about Commerce 
Clause cases being settled.
    Judge Alito. Well, it depends on which Commerce Clause 
cases you're talking about. Certainly, the initial Commerce 
Clause cases that moved away from the pre-New Deal 
understanding of the Commerce Clause have been on the books for 
a long time. Maybe I have been more forthcoming than I should 
have been in some areas, and if that's the case in providing 
these extemporaneous answers, I can be faulted for that. But 
the line that I have to draw, and I think every nominee, 
including Justice Ginsburg, has drawn, is to say that when it 
comes to something that realistically could come before the 
Court, they can't answer about how they would decide that 
question. That would be a disservice to the judicial process.
    Senator Schumer. I understand your view. I just think there 
are some inconsistencies there. I would argue you ought to err 
on the side of being more forthcoming. This is the last chance 
we and the American people will have to make a decision before 
a lifetime appointment.
    But I want to move on to another issue also related to Roe. 
Now, you did say that in 1985, you believed that the 
Constitution did not protect the right to an abortion, and at 
that time, you were a mature legal mind. You were 35. You were 
already a Federal prosecutor. You were serving in the Solicitor 
General's Office. You had a pretty good understanding of the 
Constitution. You had argued cases related to Roe before the 
Supreme Court, I think, 12 times by 1985. So you were a well-
seasoned, mature, established legal mind at that time, is that 
fair to say?
    Judge Alito. Well, Senator, most of what you said is 
certainly correct, but I had not argued any case involving Roe 
before the Supreme Court.
    Senator Schumer. I see. You had argued 12 cases before the 
Supreme Court?
    Judge Alito. Yes, that's correct.
    Senator Schumer. Sorry. Now, let me ask you this. When you 
wrote that statement, you did not, as we discussed yesterday, 
when you wrote that the Constitution does not protect the right 
to an abortion, you had no exceptions. So that would mean, at 
least in 1985, your view then, there would be no constitutional 
protection for a woman to terminate her pregnancy even if the 
termination was needed to preserve her future ability to have 
children, right?
    Judge Alito. Well, Senator, it was a general statement. It 
didn't go into--it didn't--
    Senator Schumer. But it had no exceptions. You could make 
that--
    Judge Alito. It was one sentence and it certainly didn't 
represent--there was no attempt--
    Senator Schumer. You didn't write any exception for that 
situation, correct? It just said, the Constitution does not 
protect. It was without exception. And yesterday, you didn't 
argue with me when I mentioned that, without exception.
    Judge Alito. I don't recall you using the word, ``without 
exception.''
    Senator Schumer. I think I did.
    Judge Alito. Senator, it's one--well, I'm not disputing 
that--
    Senator Schumer. OK. So if you believe--
    Judge Alito. Could I just answer that question?
    Senator Schumer. Yes, please.
    Judge Alito. It's one sentence and it certainly is not an 
attempt to set out a comprehensive view of the subject.
    Senator Schumer. No, I understand that, but it was a very 
strong statement. It didn't talk about any exceptions at all, 
and the way I read that statement, even if a woman was raped by 
her father, she would have no constitutional protection to have 
an abortion and terminate that pregnancy. If you believe the 
Constitution protects no right to an abortion, that would 
follow, wouldn't it?
    Judge Alito. I think the statement speaks for itself, and 
it's one sentence and it's not an effort to set out a 
comprehensive--
    Senator Schumer. Well, knowing these examples, do you still 
refuse to distance yourself in any way from a broad, 
unqualified statement without exception that the Constitution 
does not protect the right to an abortion, no ands, ifs, or 
buts is my words, but--
    Judge Alito. What I actually said was that I was proud of 
my participation in the Thornburgh case in which the government 
made the argument that it made in the Thornburgh case--
    Senator Schumer. Right, but you said in the previous 
sentence of that statement that you personally held those 
views.
    Judge Alito. That's correct, but what I was talking about 
there was the Thornburgh case and nothing more than the 
Thornburgh case.
    Senator Schumer. I understand, but you haven't rethought 
the position at all, even knowing these extreme cases and the 
hardship that it might cause--
    Judge Alito. What you've pointed out is exactly why, if the 
issue were to come up and one were to get beyond stare decisis, 
the whole judicial decisionmaking process would have to be gone 
through. You'd have to know--
    Senator Schumer. You didn't think that through in 1985?
    Judge Alito. I was not involved in--
    Senator Schumer. When you wrote the statement. When you 
wrote that statement.
    Judge Alito. And when I wrote this statement, what I was 
saying was that I was proud of what I had done in relation to 
the Thornburgh case, which was to write the memo that the 
Committee is aware of, which did not argue that Roe should be 
overruled. It did not argue that the Government should argue 
that Roe should be overruled, but that the decision should be 
challenged on other grounds that were quite similar--
    Senator Schumer. I understand what you wrote, but you 
also--we can bring the statement up here, but I don't want to 
go over the thing of yesterday. I would just ask you to think 
of all the consequences of a broad statement, even from 1985, 
that the Constitution does not protect the right to an 
abortion. There is not an exception of health to the mother, 
not an exception of rape or incest, not an exception of any of 
these others. I didn't see any of those in your job 
application.
    But I want to conclude on one--
    Judge Alito. Senator, it was one--
    Senator Schumer. Go ahead, please.
    Judge Alito. It was one sentence, and I think what you're 
saying highlights the importance of not addressing this until 
the judicial process takes place where all of this complexity 
would be taken into account.
    Senator Schumer. In all due respect, sir, I think it 
highlights the importance of and obligation to discuss it, 
particularly in light of a strong statement before, but we will 
have to differ on that.
    I want to go back to the CAP issue in conclusion, because 
some of the statements just don't add up and I just want to try 
to figure this out a little better. You graduated from 
Princeton in 1972. I am just going to state, to save us a 
little time, a series of facts here. You filled out the 
application to apply for the job in the Reagan administration 
in 1985, where you mention membership in that group. Now, is it 
fair to say you joined sometime around 1972?
    Judge Alito. I think that's very unlikely.
    Senator Schumer. Unlikely?
    Judge Alito. Very unlikely.
    Senator Schumer. When do you--you have no idea when you 
joined?
    Judge Alito. I don't, but if I had done anything 
substantial in relation to this, including renewing membership 
or being a member over a lengthy period of time, I feel 
confident that I would remember that.
    Senator Schumer. OK. So you don't remember renewing 
membership, writing out a check at a certain time, getting a 
magazine, this Prospect magazine, once a month, once a quarter, 
once a year? You have no recollection of any of that?
    Judge Alito. I don't.
    Senator Schumer. OK. Well, here is what the--and let me 
just ask you one other question. I take it in 1985 you were a 
member of a whole lot of different groups. I mean, you were a 
member of the Bar Association. You might have been your 
neighborhood guy, I respect that, maybe a neighborhood 
association in New Jersey where you lived, maybe other 
Princeton alumni organizations. In your 1990 application, there 
are a bunch of other organizations you list as being members 
of. So you were a member of a whole lot of groups.
    Judge Alito. I was a member of some other groups, not a 
whole lot--
    Senator Schumer. Yes, OK, a bunch. More than two?
    Judge Alito. Some other groups, yes.
    Senator Schumer. OK. Here is what I don't understand. I 
think here is what a lot of people don't understand. You are a 
member of other groups. You hardly have any recollection of 
this organization. And yet, somehow in 1985, you put it on your 
application. Why did you? Why did you list that particular 
organization on your application when you have such vague 
recollection of it? Why didn't you put the National Bar 
Association--I mean, the American Bar Association or one of the 
other groups that you were a member of? It wasn't a long list 
where you were trying to list--you somehow plucked this group, 
which you now say you have almost no recollection about, and 
put it on the application, and this group, as we have heard, is 
controversial. Just try to give us some understanding of your 
state of mind in 1985, why that group, with its tawdry history 
even public then, although you said, in all fairness, you 
didn't know about it, but why that group? Why was it plucked 
out and put on the application?
    Judge Alito. Well, I deplore all of those statements that 
were shown on the chart.
    Senator Schumer. Understood.
    Judge Alito. I would never associate myself with those 
statements--
    Senator Schumer. What made you pick that group? I 
understand. I am not trying to--
    Judge Alito. I think you have to look at the question that 
I was responding to and the form that I was filling out. I was 
applying for a position in the Reagan administration, and my 
answers were truthful statements, but what I was trying to 
outline were the things that were relevant to obtaining a 
political position. I mentioned some very minor political 
contributions. I didn't mention contributions to charitable 
organizations, and that's not because the contributions to 
charitable organizations were unimportant. It's just that--
    Senator Schumer. Can you reach back, because it is an 
important issue now--it has become one--and try to figure out 
your state of mind then and what made you pick this 
organization. What did you--I mean, I see why you picked the 
Federalist Society. That is obvious. Why did you pick this one?
    Judge Alito. Well, Senator, since I don't remember this 
organization, I can't answer your question specifically, but I 
think that the answer to the question lies in the nature of the 
form that I was filling out and the things that I put. I think 
the illustration of the political contributions goes right to 
the point. Why did I mention small political contributions and 
not charitable contributions?
    Senator Schumer. Can I ask you--
    Judge Alito. It wasn't that the charitable contributions 
were less important. It was that they were not as relevant to 
obtaining a political position.
    Senator Schumer. Why didn't you put it on your application 
in 1990? It wasn't there.
    Judge Alito. I didn't remember it.
    Senator Schumer. But you remembered it from 1972, or 
whenever you joined, to 1985, formed in 1972. Why I think you 
probably joined earlier is because of what you said about ROTC, 
which is a much bigger issue in its early history than its 
later history. And you remember that. You remember it up until 
1985, and then by 1990, you had forgotten it.
    Let me just say, I am glad--this is by way of explanation. 
That is why Senator Kennedy made his request. I am glad, 
Senator Specter, that you have acceded to it. I think there are 
unanswered questions here that we really have an obligation to 
answer, and maybe the documents we get will give us some of 
those answers. Thank you, Mr. Chairman.
    Judge Alito. Senator, I have--
    Senator Schumer. Please.
    Judge Alito. I have told the Committee everything that I 
can about this organization, and the most important thing I 
want to tell the Committee is that I have no association with 
those comments that were made, even if they were made in 
letters to the editor or in articles that simply represented 
the views of the authors of those articles. They are not my 
views now. They never were my views. They represent things that 
I deplore. I have always deplored any form of racial 
discrimination or bigotry. I was never opposed to the admission 
of women to Princeton. After I had been there for a few months, 
I realized the difference between the non-coeducational 
atmosphere that was there and the coeducational atmosphere that 
I had had throughout my prior schooling. When it came time for 
me to join an eating facility, I chose one that was one of the 
most coeducational facilities on the campus.
    Senator Schumer. I just can't figure out why you put this 
group on here.
    Chairman Specter. Senator Schumer, your time is up, Senator 
Schumer.
    Senator Cornyn?
    Senator Cornyn. Judge Alito, let me tell you how desperate 
your opponents are to defeat your nomination. Late last 
Wednesday--or, excuse me, last Thursday, a name of a witness 
was listed relative to this whole issue of Concerned Alumni of 
Princeton that included the name of a man named Stephen Dujak. 
Is that name familiar to you?
    Judge Alito. Not other than from seeing the witness list.
    Senator Cornyn. Well, by the end of the day on Friday, his 
name was gone from the witness list of those witnesses intended 
to be called by the other party. As it turned out, it was 
revealed that in April of 2003, that he had authored an op-ed 
piece for the Los Angeles Times entitled, ``Animals Suffer a 
Perpetual Holocaust,'' and in that article, he wrote this. He 
said, ``Like the victims of the Holocaust, animals are rounded 
up, trucked hundreds of miles to the kill floor, and 
slaughtered. Comparisons to the Holocaust are not only 
appropriate but inescapable, because whether we wish to admit 
it or not, cows, chickens, pigs, and turkeys are capable of 
feeling loneliness, fear, pain, joy, and affection as we are. 
To those who defend the modern-day Holocaust on animals by 
saying that animals are slaughtered for food to give us 
sustenance, I ask if the victims of the Holocaust had been 
eaten, would that have justified the abuse and murder? Did the 
fact that lamp shades, soaps, and other useful products were 
made from their bodies excuse the Holocaust? No. Pain is 
pain.''
    Judge Alito, I read that to point out to you the 
desperation of your opponents. This was to be a principal 
witness who was going to come in and say why your membership in 
Concerned Alumni of Princeton was a terrible thing. But the 
fact is that I think they have stumbled by their overreaching 
by demonstrating the desperation that they feel and how few 
ways they have to criticize your testimony, your career, your 
integrity, and who you are as a person based upon the facts and 
I think it speaks volumes.
    It is clear to me, at least, that part of the reasonings or 
the rationale given for a ``no'' vote against you by some on 
this Committee and perhaps on the floor of the Senate will be 
that you have not been responsive to questions. We have a chart 
here that I think is instructive. This is as of 3 p.m. on day 
two. We couldn't get any more current than that. But as this 
indicates, so far in this hearing, 441 questions have been 
asked and 431 have been answered, or 98 percent. Justice 
Ginsburg, and we have heard a lot about her and what she would 
answer and would not answer and what her philosophy was, her 
beliefs, before she was confirmed by the Senate with only three 
votes against, she had 384 questions asked and she answered 307 
of those for an 80 percent answer rate.
    You know, listening to the back and forth about whether you 
have been responsive to questions reminds me of a saying that I 
heard recently: ``I can answer the question, but I can't 
understand it for you.''
    In other words, I think you have done, to the best of your 
ability and to the limits of your ethical responsibility, tried 
to be responsive to the questions here. Obviously, no one can 
make that decision but the Senators who will ultimately vote on 
that. But certainly the public and the world, people all across 
this great country who may be listening to this hearing and 
will be judging for themselves both the fairness of the 
proceeding and your responsiveness to the questions, I believe 
that they will conclude that not only have you been responsive 
but that you have been very forthcoming in answering the 
questions that have been asked of you, but that, like Justice 
Ginsburg and others before her, you believe that it is 
important to maintain the independence of the judiciary, that 
you are not willing to make the judiciary subservient to the 
Senate or the Congress in order to get a vote for confirmation. 
And I applaud you for that.
    You know, yesterday I made a mistake. I know Senator 
Sessions confessed a mistake and, as it turned out, I went over 
and talked to Senator Biden because I had quoted him and it 
turned out I didn't quite quote him accurately. But I told him 
we have corrected the record to make sure it reflected his 
words, because it is important to me to make sure that we are 
accurate and we are clear.
    But yesterday I made a mistake and referred to you as Judge 
Scalito. And I was embarrassed by that, and I asked your--
begged your pardon for that. For those that may not be in on 
the joke, the idea is, the argument by some is somehow you are 
a clone of Judge Scalia. Well, I have found for myself 
everything we have heard, everything I have come to learn about 
you is that you are a clone of no one, that you are an 
individual who is particularly gifted and talented and 
experienced and someone who has been, notwithstanding the abuse 
that you suffer during the confirmation process, willing to 
offer yourself for public service in a very important role, and 
that is as a member of the United States Supreme Court.
    But yesterday my colleague from New York put up some 
quotes. Now, it was late in the day and I think most of the 
press had gone--and maybe that is a good thing. People had 
gotten tired, but you had to still sit here and listen to the 
questions and respond to those. But he put up a quote, which 
was relatively innocuous on its face, and it asked about things 
like do you believe that continuity in the law is important. 
And you said yes and it seems unarguable to me. But then he 
said, well, that was a quote from Clarence Thomas. And I 
suppose that was going to attribute to you all of the baggage 
that those on the left feel that Justice Thomas carries and all 
of the views that he has espoused and all of his performance on 
the bench.
    Later, he asked whether you agreed with another quote, and 
here again it was a sort of black-letter law, good-government 
quote. And you agreed that, yes, you agreed with that quote. 
And he said, Ah-ha, Judge Bork said that. Meaning somehow that 
you were carrying whatever baggage people on the left feel that 
Judge Bork carries and you somehow embrace or subscribe to 
everything he believes.
    I want to give you an opportunity, Judge Alito, to tell us 
whether you feel like you are a clone of Judge Scalia, Judge 
Thomas, Judge Bork, or whether you believe that you are your 
own man, you come to your own conclusions based on careful 
study and your experience in the law. Would you comment on that 
for me, please?
    Judge Alito. Yes, Senator. I am who I am and I'm my own 
person. And I'm not like any other Justice on the Supreme Court 
now or anybody else who served on the Supreme Court in the 
past. I don't think any jurist is a duplicate of any other 
jurist. I think that the Committee and anybody who's interested 
in the sort of judge I am can get a very clear picture of that 
by looking at my record on the court of appeals. And I've been 
on the court of appeals for 15 years and have sat on over 4,000 
cases. And most of the cases that come to the court of appeals 
never go any further. We're the last stop in 99 percent of the 
cases, probably higher than that. And we know that when we're 
deciding those cases.
    And I think if anybody reads the opinions that I've written 
and the opinions that I've joined, they can see exactly the 
sort of jurist that I am. They will find some opinions I'm sure 
that they will disagree with. But if they look at the whole set 
of opinions that I've written or joined, they can get a very 
clear picture of me. I'm not like anybody else. I don't claim 
to have the abilities of some of the distinguished members of 
the Supreme Court now or in the past. I have my--whatever 
abilities that I have. But they are my own.
    Senator Cornyn. Let me tell you what Cass Sunstein has said 
about you. You may be familiar with the op-ed piece that was 
written in the Akron Beacon Journal on November 3, 2005. This 
is--of course, you know Professor Sunstein from the University 
of Chicago, a brilliant and liberal legal scholar. But he 
concludes in this op-ed--and this is how he describes you based 
upon his review of your life's work as a judge.
    He said, ``Alito sits on a liberal court''--and this is an 
analysis of your dissents. ``Alito sits on a liberal court, so 
his dissents can be from relatively liberal rulings. None of 
Alito's opinions is reckless or irresponsible or especially 
far-reaching. His disagreement is unfailingly respectful. His 
dissents are lawyerly rather than bombastic. He does not berate 
his colleagues. Alito does not place political ideology at the 
forefront. He doesn't claim an ambitious or controversial 
theory of interpretation. He avoids abstraction. He's not 
endorsed the view associated with Justices Antonin Scalia and 
Clarence Thomas that the Constitution should be interpreted to 
fit with the original understanding of those who ratified it. 
Several of his opinions insist on careful attention to 
governing legal text, but that approach is perfectly 
legitimate, to say the least.''
    Judge Alito, I think it is important for people listening 
to understand that you are indeed your own man and that you do 
the very best job that you can with the skills and the talents 
that God has given you, and that you are willing to serve, and 
we ought to applaud you for that. And it is really, to me, 
demeaning to suggest some sort of guilt by association or that 
you must be a clone of some other judge or someone who outside 
groups hold up to disrespect and ridicule.
    So I hope that, as I say, those listening, both in the 
Senate and outside, will make up their mind about you based 
upon the evidence that we have heard and that is available and 
not based on those sort of specious comparisons.
    Now, let me ask--you know, believing as I do that you have 
been responsive, and expecting as I do that those who vote 
against you will claim that you have been nonresponsive 
notwithstanding the chart I showed you and your willingness to 
respond to the questions, you know, Senator Schumer--who is an 
enormously talented and very bright lawyer in his own right--
was pressing you on whether Roe v. Wade is settled. And, I've 
really tried to analyze for myself, when is it that judges and 
nominees are willing to go out on a limb, so to speak, and say, 
yes, that's settled law or to talk more expansively about an 
issue; and when is it that they feel less comfortable, less 
free, more constrained by their ethical obligations or their 
desire to preserve the independence of the judiciary?
    And what I have concluded--and I would like to get your 
reaction to this--is the more settled, to use the word Senator 
Schumer has, the more accepted in the society, in our culture, 
the more free nominees feel to talk about it; but the more a 
nominee feels like this is an issue that not only is going to 
come back, it is going to come back soon--as a matter of fact, 
it may be on the Court's docket now--the less free, the more 
bound by your ethical obligations you feel, the more you feel 
it is important to preserve your independence as a judge.
    And we have mentioned a couple of them--Brown v. Board of 
Education, which expresses a commitment to equal justice under 
the law that all Americans embrace, virtually speaking. You 
have felt free to express a view on that case, have you not, 
sir?
    Judge Alito. I have. The line I've tried to draw is whether 
something realistically could come up in litigation before the 
court of appeals or before the Supreme Court. And I--
    Senator Cornyn. Does that mean that you don't expect Brown 
v. Board of Education to be attacked, or someone to come before 
the Court and ask that it be overruled?
    Judge Alito. I don't. There's no realistic possibility of 
that, so I felt freer to talk about something like that.
    Senator Cornyn. But you do believe, and I think with good 
cause, that there will be continuous attempts to address the 
abortion issue because of its divisive nature and because 
Americans are so divided on that issue, or at least some aspect 
of the issue. To what extent, for example, can the Congress 
pass laws which ban the barbaric practice of partial birth 
abortion, to what extent can Congress or the States pass laws 
that provide for minors to seek--requiring them to seek 
parental--or provide their parents notice, with an appropriate 
judicial bypass for those who are abused or neglected or 
abandoned by their parents? That is an issue that is at the 
forefront of America's consciousness and really, I think, sort 
of the subtext under which a lot of the wars over judicial 
nominations are fought. Would you agree with that, more or 
less?
    Judge Alito. It's an issue that is in litigation now, and I 
think you can look at the course of litigation over the past 20 
years and you can see a number of cases--and of course this has 
been highlighted--in which the Supreme Court has been asked to 
overrule Roe and it has repeatedly refused to do that. But 
there's nothing--there's no comparable pattern, for example, 
with respect to Brown v. Board of Education or one person, one 
vote.
    Senator Cornyn. Well, in the closing two and a half minutes 
that I have, I mentioned the Cass Sunstein op-ed, which, from 
my reading, even though I am sure you and Professor Sunstein 
don't see eye-to-eye on all legal issues, he seems to be highly 
complimentary of you, is the way I interpreted those two 
paragraphs I read out of the op-ed piece.
    Now, a national newspaper, the Washington Post, on January 
1st--that is the Washington Post, not National Review--did an 
analysis of your voting record on the Third Circuit. They found 
that in virtually every type of case, whether labor, 
employment--your record was no different than the average 
Republican-appointed judge. And to me, that is sort of the--
said another way, that means that you are within the 
conservative mainstream in terms of your judicial philosophy.
    Now, I know that you and other legal scholars have some 
trouble with this approach by political scientists to try to 
survey your opinions and categorize them and say, well, this is 
who you are, because you don't decide cases that way, do you? 
You decide individual cases based upon the legal arguments, the 
merits, and the facts. Isn't that correct, sir?
    Judge Alito. That's right, and it would be a bad thing if 
judges started keeping these scorecards and said, oh, I've 
ruled a certain number of times in favor of one side; when the 
next case comes up, I'd better rule on the other side. That's 
exactly what we don't want judges to do.
    Senator Cornyn. You anticipated my next question, and that 
would be if somehow it disqualifies you because of how 
political scientists have somehow ranked your sympathy with 
certain types of cases, how often you have ruled in favor of 
one type of litigant and another--as opposed to an individual 
case-by-case decisionmaking process contemplated by the 
Constitution--I doubt it will be long before prospective 
nominees to the Federal judiciary will be keeping that kind of 
chart. And when litigants come into court, they are going to be 
tempted to look at that and say, well, I've ruled for too many 
plaintiffs, I'd better rule for a defendant this time. Or, no, 
I've shown too much sympathy for civil rights plaintiffs, I'd 
better rule for the government this time. Which would totally 
skew your responsibility as a Federal judge, in my view.
    Judge Alito, my time has run out. Thank you for your 
response to my questions.
    Judge Alito. Thank you, Senator.
    Chairman Specter. Thank you, Senator Cornyn.
    We will take now another break for 15 minutes.
    I have had requests from two Senators on the Democratic 
side for a third round. We have three more Senators to question 
on the 20-minute round--
    Senator Leahy. We have several more than the two.
    Chairman Specter. Well, Senator Leahy, that is what I would 
like to ascertain so that we can figure out the schedule for 
the balance of the evening. We have 1 hour more for three 
Senators at 20 minutes; I want to figure out what we are going 
to do the rest of the evening. I want to figure out when we are 
going to bring on the outside witnesses who are available 
tomorrow. So if there are other requests, I would like to have 
them.
    But now we will stand in recess until 5:55.
    [Recess 5:40 p.m. to 5:55 p.m.]
    Chairman Specter. We will proceed now to the last three 
Senators who have not had a second round of 20 minutes--Senator 
Durbin, Senator Brownback and Senator Coburn.
    As I had mentioned before, I have had requests from two 
Senators for a third round. Senator Leahy advises that there 
are others and I would like the specifications. Senator Biden 
is prepared to proceed--has requested 20 minutes and is 
prepared to proceed. Senator Feinstein has requested 10 minutes 
and she has a doctor's appointment, so she won't be able to be 
here this evening, and we will accommodate her on that.
    But I would like to know who else wants time so we can plan 
what we are going to do for the balance of the evening and 
hereafter. I have had requests on my side of the aisle as to 
whether we are having a Friday session and I have had a request 
as to whether we are having a Saturday session. And I told both 
of those requestors to stand by. And I do piecework, so I am 
here for the duration.
    Senator Leahy.
    Senator Leahy. Mr. Chairman, I have been told that each one 
of the people on this side want another round. I know I want to 
look at the transcript this evening and I will have a few more 
questions. Obviously, you can do what you want. Judge Alito has 
shown that he has the stamina of Hercules. I am not sure that 
all the rest of us do. Senator Coats is hanging in there, but 
he is able to bail out now and then.
    I would suggest you finish with the Senators who are here 
tonight. That would get us out of here around seven or a little 
later; come back in the morning. This is very similar to what 
we did with Chief Justice Roberts. Come back in the morning, 
and I have a feeling that whatever rounds it takes, we would 
probably wrap it up in relatively expeditious order.
    But then we wouldn't be looking like we are trying to ram 
this through. It is a lifetime appointment, after all. We get 
it done. I think most of the outside witnesses have been told 
that they were going to testify on Friday, anyway, in all 
likelihood. That is my suggestion.
    Chairman Specter. Well, that is not true. There are people 
who can't be here on Friday among the outside witnesses who 
were looking at Thursday.
    Senator Leahy. Well, who knows? We will probably be wrapped 
up in time so that we can leave here sometime Thursday.
    Chairman Specter. Well, Senator Leahy--
    Senator Leahy. It is up to you.
    Chairman Specter [continuing]. The only way we will know 
what is going to happen--I want to know who wants more time so 
I can see what is going to go on tomorrow, if we are going to 
go beyond Senator Feinstein tomorrow. We had this exact same 
situation with Chief Justice Roberts and we worked on into 
Wednesday evening and then we got an understanding as to what 
we were going to do on Thursday.
    Senator Leahy. Well, we are into Wednesday evening now 
already, so I mean we have done--
    Chairman Specter. Well, why don't we proceed with our few 
witnesses so as not to spend any more time, and if I could have 
the advice from you--
    Senator Leahy. Sure.
    Chairman Specter.--Senator Leahy, and from Senator Kennedy. 
Senator Durbin has 20 minutes. He probably has more time than 
he needs.
    Senator Leahy. I have yet to find a situation in this 
Committee, Mr. Chairman, when you and I haven't been able to 
work things out because you have always been eminently fair.
    Chairman Specter. OK. Well, to put all the cards on the 
table, the only compelling force, if there such a thing as a 
compelling force for Senators, is to figure out how to avoid 
working this evening by telling me what you want to do 
tomorrow. That is a fairly simple formula.
    Senator Leahy. Who was the Leader, Mr. Chairman, who once 
said moving the Senate around was like transporting bull frogs 
in a wheel barrow?
    Chairman Specter. Senator Baker, who is author of the 
``herding cats.''
    Senator Durbin, you are recognized for 20 minutes.
    Senator Durbin. Thank you very much. And, Judge Alito, if I 
am not mistaken, this is how we started the day. I think we are 
now into about eight-and-a-half hours, which means we are both 
on overtime by any measurable workplace standard in America. 
Thank you for your endurance, and to your family as well. I 
know it is a stressful and tough situation.
    Let me say at the outset I asked you a question earlier 
today about settled law and John Roberts's statement before the 
Committee. I have spoken to one of your corner men over here, 
Ed Gillespie, and he and I have a difference of opinion about 
what it says in the record. I commend to my colleagues the 
record itself, September 13, 2005, page 145, and I stand by my 
earlier statement. Enough said about that.
    I want to ask you about two substantive issues. We are not 
going to go to Princeton or any other place. The unitary 
Executive: the reason it is important is that there are some 
people even on the Supreme Court who believe the unitary 
Executive theory--and I don't know if it is always associated 
with the Federalist Society, but sometimes associated with the 
Federalist Society and their members--but the unitary Executive 
theory gives a President extraordinary power. And under that 
theory, some argue that a President, particularly in a wartime 
situation, can ignore and violate laws as Commander in Chief--
critically important and timely as we debate eavesdropping and 
the like.
    You have made it clear that when you spoke to the 
Federalist Society in 2000, you were not talking about scope of 
the President's power, but you were talking instead as to 
whether or not he would have control over the executive branch. 
I hope I am characterizing your statement correctly.
    Judge Alito. That is exactly correct, and I think in the 
speech I said there is a debate about the scope of what is 
meant by the Executive power, but there isn't any debate that 
the President has the power to take care that the laws are 
faithfully executed, and that was the scope of the power that I 
was discussing.
    Senator Durbin. So my question to you is this: What about 
those who do argue the unitary Executive scope theory? Do you 
agree with their analysis, do you disagree? Would you be 
joining Justice Thomas, in particular, in his dissent in 
Hamdi--in arguing that in this situation a President has more 
power than the law expressly gives him?
    Judge Alito. I don't think that the unitary Executive has 
anything to do with that. Let me just say that at the outset. I 
think that--and if other people use that term to mean the scope 
of Executive power, that certainly isn't the way that I 
understand--
    Senator Durbin. That is not your point of view?
    Judge Alito. That is not my point of view.
    Senator Durbin. You don't accept that point of view?
    Judge Alito. No. I think--
    Senator Durbin. If an argument is made that that is how 
they are going to expand the power of the President, as you 
testify today, that is not your position or your feeling? Say 
it in your own words.
    Judge Alito. It is not my--the unitary--when I talk about 
the unitary Executive, I am talking about the President's 
control over the Executive branch, no matter how big or how 
small, no matter how much power it has or how little power it 
has.
    To me, the issue of the scope of Executive power is an 
entirely different question and it goes to what can you read 
into simply the term ``Executive.'' That is part of it and, of 
course, there are some other powers that are given to the 
President in Article II, the commander in chief power, for 
example. And there can be a debate, of course, about the scope 
of that power, but that doesn't have to do with the unitary 
Executive.
    Senator Durbin. So when Hamdi draws that line and Justice 
O'Connor makes that statement about no blank check for a 
President in times of war when it comes to the rights of 
American citizens, and there is a dissent from Justice Thomas, 
who argues unitary Executive, scope of powers, more power to 
the President, you are coming down on the majority side and not 
on the Thomas side of that argument. Is that fair to say?
    Judge Alito. Well, I am not coming down--I don't recall 
that Justice Thomas uses the term ``unitary Executive'' in his 
dissent. It doesn't stick out in my mind that he did. If he 
did, he is using it there in a sense that is different from the 
sense in which I was using the term.
    Senator Durbin. Fair enough. Let me move to another area. I 
hate to return to that infamous 1985 memo, but there is one 
element of it we have really not asked you about, and that is 
your reference to the Establishment Clause. So instead of going 
into that memo, let me just try to explore with you for a 
moment your feelings about religion in our diverse society and 
under the Constitution. You have heard some questions from the 
other side about it from Senator Brownback, Senator Cornyn and 
others, and I would like to try to get into this a little bit.
    There seems to be a debate within the Court between two 
standards for judging conduct as to whether it is 
constitutional in relation to freedom of exercise of religion, 
as well as establishment. And the two theories, if I can 
describe them quickly, are the Lemon theory which has three 
tests that the Burger Court came out with in 1971 and the new 
coercion theory.
    Are you familiar with both of those theories?
    Judge Alito. I am, and there is actually a third theory, 
the endorsement test.
    Senator Durbin. Where do you come down? Do you subscribe to 
any one of those as an accurate analysis of what the Founding 
Fathers meant under the Establishment Clause?
    Judge Alito. I don't think the Court has settled on any 
single theory that it applies in every case. There are cases in 
which it finds the Lemon theory, the Lemon test, which now has 
two parts, whether the statute has--whether whatever is at 
issue has a secular purpose and whether the primary effect is 
to advance or inhibit religion. There are instances in which it 
applies that. It tends to apply that in cases involving 
funding.
    There is the endorsement test, and it applies that in 
certain cases. Typically, it applies those in cases involving 
things like the displaying of symbols that may have religious--
that have religious significance. So it itself has not found a 
single test that it applies in all of these cases.
    Senator Durbin. Well, where are you? If the Court is 
divided, and it appears it is, where do you come down? I mean, 
do you--please tell me.
    Judge Alito. Well, I don't have a--I do not myself have a 
grand, unified theory of the Establishment Clause. As a lower 
court judge, of course, my job has been to apply those 
precedents, and this is an area in which I think the Court has 
been--you can just see by the number of cases that it has 
decided it has been attempting to find the best way of 
expressing its view of what the Establishment Clause requires.
    I certainly agree that it embodies a very important 
principle and one that has been instrumental in allowing us to 
live together successfully as probably the most religiously 
diverse country in the world, and maybe in the history of the 
world. And it's a very important principle, but I myself do not 
have a grand, unified theory of this.
    Senator Durbin. Let me ask you a few starting points. The 
question was asked of John Roberts about his personal religious 
and moral belief. And I would ask you in the most open-ended 
fashion. We all come to our roles in life with life experience 
and with values. When you are calculating and making a 
decision, if you were on the Supreme Court, tell me what role 
your personal religious or moral beliefs will play in that 
decision process.
    Judge Alito. Well, my personal religious beliefs are 
important to me in my private life. They are an important part 
of the way I was raised and they have been important to Martha 
and me in raising our children. But my obligation as a judge is 
to interpret and apply the Constitution and the laws of the 
United States, and not my personal religious beliefs or any 
personal moral beliefs that I have, and there is nothing about 
my religious beliefs that interferes with my doing that. I have 
a particular role to play as a judge and that does not involve 
imposing any religious views that I have or moral views that I 
have on the rest of the country.
    Senator Durbin. That is virtually the same answer given by 
Justice Roberts and I think from my point of view that is the 
right answer. It is the same challenge many of us face on this 
side of the table with decisions that we face.
    Now, I asked Judge Roberts the following: Does the Free 
Exercise Clause, in addition to the Establishment Clause, 
protect the right of a person to be respected in America if 
they have no religious beliefs, the non-believers?
    Judge Alito. Yes, it does. It is freedom to worship and not 
worship, as you choose, and compelling somebody to worship 
would be a clear violation of the religion clauses of the First 
Amendment.
    Senator Durbin. Let me go to a specific case, the Black 
Horse Pike Regional Board of Education case, in which you were 
involved. And it is an interesting case and I hope this fact 
pattern that I describe to you is correct.
    The school board policy allowed the seniors at this school 
to vote on having a graduation prayer, and the decision, it was 
suggested, was whether that was coercing students who didn't 
agree with that religious prayer or had no religious belief.
    What is your feeling, or what was your feeling at that time 
when it came to that decision?
    Judge Alito. Well, that was the case that followed Lee v. 
Weisman and preceded the Santa Fe case, which dealt with a 
prayer before a football game. Lee v. Weisman involved a 
situation in which the principal--and that was the most 
directly relevant and a rather recent precedent at the time of 
the Black Horse Pike case.
    In Lee v. Weisman, the principal of a middle school, as I 
recall, decided that there would be an invocation at the middle 
school graduation, and selected a member of the clergy, a local 
rabbi, to deliver the prayer and specified the nature of the 
prayer that would be appropriate for the circumstances. And the 
Supreme Court held that that was a violation of the 
Establishment Clause.
    The case that we considered in the Black Horse Pike case 
involved a situation in which the high school left it up to the 
students through an election to decide whether there would be a 
prayer at the high school graduation and left it up to them to 
select the person who would conduct the prayer, the student who 
would lead them in the prayer, if that was--if they decided by 
a vote to do that.
    And so our job at that point was to decide whether this 
fell on one side or the other of a line that I referred to 
earlier which Justice O'Connor very helpfully--the distinction 
that she drew between government religious speech, which is not 
allowed, and private religious speech which is protected. The 
government itself cannot speak on religious matters, but the 
government also can't discriminate against private religious 
speech. And we had here a situation--
    Senator Durbin. That goes back to the Oliva case where the 
student comes up with the drawing of Jesus, and that is a 
voluntary, personal and private expression, as you have 
described it.
    Judge Alito. That is correct, and the Supreme Court has 
recognized this in any number of cases. In the Rosenberger case 
and the Good News Club case and the Lamb's Chapel case, they 
have drawn this distinction.
    So here we had a situation involving an election by the 
students to pick somebody to lead them in prayer, and which 
side of the line did it fall on? Well, it wasn't individual 
student speech, but it was collective student speech by way of 
an election. And that was what we had to decide, which side of 
this line it fell on. And Judge Mansmann, who wrote the opinion 
that I joined in that case, explained why we thought it fell on 
the side of the line of individual student speech.
    Senator Durbin. Let me ask you about that. Let me explore 
for a second. You are dealing with a school board policy. A 
school board is a government agency. They have set up the 
policy, so it is not coming entirely from a voluntary personal 
situation, like the Oliva case. And you know that the majority 
is going to rule in the decision on whether there will be a 
prayer and what the substance of the prayer will be.
    How, then, could you respect the rights of the minority, 
including people with different religious beliefs and non-
believers, if you leave it up to a majority vote?
    Judge Alito. Well, that is why--that factor is why it was a 
case that didn't--there could be debate about which side of 
this line it fell on. Now, I think there also was a disclaimer 
that was distributed at the time of the graduation explaining 
to anybody who was in attendance that the prayer was not 
endorsed--if there was a prayer, it wasn't endorsed by the 
school board, and that this was a decision of the students.
    There are factors there that fall on one side of the line. 
There are factors there that point to the case being put on one 
side of that line, factors that point to putting the case on 
the other side of the line. And Judge Mansmann's opinion 
explained why she thought, and I agree, that it would fall on 
the private student speech side of the line. But it was a 
question that was debatable.
    And then the Sante Fe case came along later. It didn't 
involved exactly the same situation, but it involved a related 
situation, and that is now the Supreme Court's expression of 
its opinion in the form of a precedent on the application to--
the application of this test that I have been talking about, a 
situation like this.
    Senator Durbin. As you have described it, this is not an 
easy call. There are circumstances on both sides, and yet in 
your dissent you use the phrase referring to the majority as 
``hostility toward religion.'' It seems to me that you could 
make a case that I am not hostile toward religion, but trying 
to be sensitive to the rights of all to believe or not to 
believe in America and come down on the opposite side of the 
case.
    Were you overstating your position in using that phrase 
``hostility toward religion'' in describing the majority?
    Judge Alito. That was--it was Judge Mansmann's opinion, in 
which I joined, and I don't remember the phrase ``hostility to 
religion.'' Obviously, it must be in there. I certainly don't 
think that she meant to suggest that those who were objecting 
to this were proceeding in bad faith, or even that they were 
hostile to religion.
    I think what she--I can't speak for her and I don't recall 
the specific language, but looking at it now, the way I would 
put it was that she probably thought that this was not giving 
as much room for private religious speech as should be given.
    Senator Durbin. I couldn't tell you what in the heck I ever 
wrote in law school about anything, but in the second year in 
law school you wrote a paper, I take it, some research, which 
you had to tell us about here relative to the issue of 
religion, and then in the 1985 memo raised the question about 
the Warren Court on the Establishment Clause.
    What was it that the Warren Court decided on the 
Establishment Clause that troubled you, if you remember?
    Judge Alito. Well, I actually think that the student note 
from the Yale Law Journal is an illustration of the sort of 
thing that has interested me and troubled me about the 
jurisprudence in this area for a long time.
    In the law school note, I talked about two--what are called 
the release time cases. It was the McCollum case and Zorach v. 
Clausen, both of which were decided just before Chief Justice 
Warren took his seat. And they involved situations that were 
quite similar. There was a distinction between the two 
programs, but they were quite similar and the Court reached 
contrary conclusions.
    And unfortunately this has been a repeating--a recurring 
pattern in the Establishment Clause jurisprudence, cases that 
turn on extremely fine distinctions. The Supreme Court held in 
Board of Education v. Allen, if I am remembering the correct 
case, at the end of the Warren Court that it was permissible 
for a school board to supply secular books to schools that are 
related to a religious--that are religiously oriented. And then 
later in another case--I think it was Wolman--they said but you 
can't--but that doesn't apply to other instructional material, 
other secular instructional material.
    And this has been the thing about the Establishment Clause 
that has bothered me, the absence of just what your initial 
question was pointing to, some sort of theory that draws 
distinctions that don't turn on these very fine lines.
    Senator Durbin. Tell me about the Establishment Clause in a 
more contemporary context if you can. You talked about the case 
of the Warren Court in providing secular books to religious 
schools, which I find no problem with. I think that is 
acceptable from my point of view, for whatever that is worth.
    But what about the concept and theory of financial support 
from a government agency to a school that is a religious school 
where the money is used for the purpose of teaching religion or 
proselytizing?
    Judge Alito. Well, I think the Court's precedents have been 
very clear on that that the money--that a government body 
cannot supply money to a school for the purpose of conducting 
religious education. And I don't recall any--I don't recall a 
suggestion in dissenting opinions--maybe there is one that I am 
not recalling here that says that that would be permissible.
    Senator Durbin. I am running out of time, but it would go 
back to my first question. I think under the coercion test, 
there is some argument among some on the Court and others that 
not applying Lemon but using this new coercion test may give 
them more leeway when it comes to this kind of financial 
support and vouchers, but I don't want to presume that.
    And I thank you for your responses to these questions.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Durbin.
    Senator Brownback.
    Senator Brownback. Thank you, Mr. Chairman.
    We started off this morning and we will end today. I want 
to thank you for all the questions you have answered. You have 
answered the questions that I have had, and I have heard much 
of the rest of the discussion. I think we have covered many of 
these points so many multiple times. We have just overdone it 
on some of these.
    So, Mr. Chairman, I am satisfied with the questions that he 
has answered. I will be supporting your nomination in front of 
the Committee and on the floor. I think you are an outstanding 
nominee, and I have appreciated your thoughts that you have put 
forward here. I think if approved--and I hope you are, and I 
think you will be approved by the full Senate--you are going to 
serve as an outstanding Justice on the U.S. Supreme Court. And 
I will be supporting you here in the Committee and on the 
floor, and with that, Mr. Chairman, I would yield back my time.
    Chairman Specter. Senator Brownback, thank you. Thank you 
for 19 minutes and 6 seconds.
    [Laughter.]
    Chairman Specter. Senator Coburn?
    Senator Coburn. Well, Mr. Chairman, I will give you some 
time back, but it won't be quite that much. Thank you.
    I have a couple of charts I want to show just to clarify 
the record. I want to again make sure everybody knows that in 
1985, there is a quote in the Princeton Packet, the campaign to 
eliminate the Army ROTC program and what was perceived as the 
decline of Princeton athletics, it was also known that this CAP 
program was soliciting through mail membership and support. 
There also was a disclaimer in this that I want to make sure is 
in the record as well, and it says, ``The appearance of an 
article in Prospect does not necessarily represent an 
endorsement of the author's belief by the Concerned Alumni of 
Princeton. CAP has never taken a formal stand on coeducation at 
Princeton or elsewhere.''
    And I liken that to--I am a member of the American Medical 
Association, but I will tell you, I don't agree with everything 
that is written in JAMA. As a matter of fact, I take great, 
great umbrage at some of the things that are written there and 
some of the ideas that are put forward that aren't done well, 
that go counter to good medicine, but that doesn't mean I 
endorse--because I am a member of the American Medical 
Association, because I am a member of JAMA, it doesn't mean 
that I endorse everything that that organization or that 
magazine might put out.
    And so I think Senator Graham had it right. You know, this 
idea of association with anything means that you take it all, 
whether, in fact, that is the truth or not, and that is not 
good work on this Committee, and it is not truthful, and it is 
not intellectually honest.
    I want to spend just a few minutes going back. You had 
mentioned earlier about one of the things the Court didn't do 
is they can't take necessarily all the technology or all the 
science and how it applies to things, and that things, in fact, 
might change. And I mentioned earlier this morning in our 
questions about the Stenberg case and the Doe v. Bolton and 
this concept of health, and that one of the things as a 
practicing physician who has delivered 4,000 babies, who also 
had a grandmother who came into this world as a result of 
rape--so I have a special view on the consequences of rape--
this concept of health, I am interested in your thought on it, 
because one of the things I think about it is the health of the 
woman when? At the time or later? Because of what we do know 
about the consequences of Roe v. Wade and the actual act of 
abortion and the impact that that has on a woman's health.
    For example, you are twice as likely to commit suicide if 
you have had an abortion. Now a study, a longitudinal study 
shows that. Twice as likely to have alcohol or drug dependency 
if you have had an abortion. About 60 percent more likely to 
have a pre-term delivery.
    So as the Court looks at that and also looks at the fact--
this health question, then also looks at health and then also 
looks at viability--when I was in medical school it was unusual 
for a pre-term infant at 28, 29, 30 weeks to survive. And we 
routinely see infants at 24 weeks that survive. As a matter of 
fact, I have a nephew 24-, 25-week delivery. The only deficit 
he has is he is blind in one eye. He weighed 1 pound 2 ounces 
when he was born.
    And so technology means something, and so the fact that we 
are not going to commit to give a blanket answer--and I am 
convinced that the only way you will get certain votes off this 
Committee and out of the Senate is if you were to write a blood 
oath that there is nothing that could interrupt any type of 
abortion on demand at any time.
    So my question to you is: How is it that the courts 
should--any court should take into consideration these 
questions about technology and science and how they impact the 
law? And the other thing I would add to that--and I mentioned 
it in my opening statement--is we consider somebody alive when 
they have a heartbeat and brain wave. And we consider them dead 
when they don't have those things. And how is it that the court 
can't look at that science and say we have a heartbeat and a 
brain wave, we know when viability is now outside of the womb, 
should those factors play in the decision of the court, or just 
we just blanket stare decisis and say Roe and Casey, it is all 
settled, and we are not going to look at the science? Should 
that play a role?
    Judge Alito. Well, Senator, I guess I would answer that by 
saying that you would have to--you would look at the factors 
that are relevant under the stare decisis analysis and ask the 
role of the sort of data that you have outlined, ask how that 
would be involved in the factors that go into the stare decisis 
analysis. And then if you get past that to the second step, of 
course, you would ask the same question whether--what bearing 
that information has on the resolution of the question at that 
step.
    Just speaking in general, not talking about abortion at 
all, in general, in deciding any legal issue, I think courts 
should be receptive to any information that has a bearing on 
the decisions that they are making. There is no such thing in 
general as bad knowledge, and I think that is relevant to the 
decisionmaking process that judges go through. They should be 
receptive to information that is relevant, that the parties 
want to bring to their attention, and then decide how it 
figures in the application of the legal standards that they are 
applying in the particular case.
    Senator Coburn. Let me ask you another question, and I want 
you to be careful how you answer this because I think at some 
time this probably will come before you, and I am not trying to 
get you pinned down. If I am driving a car today and I hit a 
pregnant woman who has a 36-, 37-week fetus, and the woman 
survives and the fetus dies, I can be held accountable for the 
death of that fetus. And by law, we value that as a life--
unborn but a life.
    If I am the pregnant woman and say I want to terminate that 
fetus at 37 weeks, there is nothing in this country today that 
keeps me from doing that, even though on one side of the law we 
say it is a life.
    How did we get there to where it is not a life or it is a 
life? Tell me, somebody logically explain that to the American 
people that how if I kill it, it was a life, but if I choose to 
take it voluntarily, it is not a life. Can anybody logically 
explain how we got there and what the consequences going down 
the road are going to be for us as a Nation when we have laws 
that send two completely different signals about the same 
individual?
    Judge Alito. Well, let me try to just explain my 
understanding of where the law rests on those two questions. 
The first is a question of tort law, or maybe it is a question 
of--well, it is a question of tort law, and decisions are made 
by State legislatures. Maybe in some instances it comes about 
through the development of common law through the State courts 
regarding the scope of State tort law and protection--a tort 
can be created that applies in the situation of the auto 
accident you mentioned or a legislature may choose to structure 
the tort law differently. But that has been a decision that has 
been left for the State legislatures to decide, and they have 
taken a variety of approaches in doing that, I believe.
    The second, of course, is the issue of Roe and the cases 
that follow after it, and those are based on an interpretation 
of the Fifth Amendment and the 14th Amendment of the 
Constitution, and they are not the result of decisions--of 
legislative decisions made at the State level or at the Federal 
level.
    Senator Coburn. Can you rationalize any way the logical 
explanation of how that could be, though? I mean, if you had 
somebody that wasn't from this world and they came in and they 
said, oh, yeah, if you kill it, it was alive, but if you choose 
to--if you accidentally kill it, it was alive, if you choose to 
kill, it wasn't? Can you come to--I mean, I am having trouble 
getting my mind around that concept that there is any logic 
there. I just wondered if you were.
    Judge Alito. Well, the answer is that the tort situation 
has been left for its development under State law, and States 
have taken a variety of approaches expressing the values that 
the legislature believes should be embodied in the tort law. 
And in the abortion context, of course, States have laws 
regulating abortion, and they're free to enact whatever 
statutes they want on this subject as long as they comply with 
the Constitution. But we have decisions of the Supreme Court 
that establish constitutional requirements in the area. I think 
that's the explanation. The decisions are made by different 
bodies.
    Senator Coburn. Just one other comment. For the American 
public to know there are 1.3 million abortions in the U.S. each 
year. This is from the Alan Guttmacher Institute. And it is 
very interesting for us to know the purpose that people--why 
people have an abortion, why women choose to terminate their 
unborn children: 21 percent say they can't afford a baby; 21 
percent say they don't want the responsibility; 16 percent say 
the baby could change their lives; 12 percent have problems 
with the relationship or want to avoid single parenthood; 11 
percent are not mature enough or don't want to have more 
children; 3 percent have a possible fetal health problem, of 
which two-thirds are Down syndrome or spina bifida; 1 percent 
resulted from rape or incest; 1 percent, the husband or the 
partner doesn't want them to have a baby; and 1 percent is they 
didn't want anybody else to know somebody had sex with them. 
And of that, 48 percent of the women who have an abortion in 
this country have already had one previously. So, in fact, our 
country, through the auspices of an activist court, in my 
opinion, has moved to use abortion not as a health issue, but 
as a convenience issue. And we have done great damage because 
we have a schizophrenic policy.
    My hope, Judge, is that science and technology and 
recognition of life on some parameter ought to be applied, and 
my hope is, as they get to the court, that we have common 
sense. And it doesn't have to be my way. You know, it could be 
Senator Schumer's or Senator Durbin's view. You know, the fact 
is there is a legitimate disagreement about rape and incest and 
medical malformations and all these other things, but we need 
in this country to have the confidence in the Supreme Court 
restored, and I think it has taken a hit just like this 
institution has taken a hit, because it is making decisions 
that are not based on fact and good law. It is making decisions 
like we have made decisions, based on expediency. And my hope 
is, is that you will be confirmed. I think you have great 
character and great integrity, and integrity I think is the No. 
1 issue, not your legal mind, your heart and your soul, and how 
you view honesty and straightforwardness, and that the result 
will be that we will see some leadership that will put science 
and fact, and combine it with the law, and restore the 
confidence in the Supreme Court.
    I asked Judge Roberts, I asked, ``Why do you think we have 
lost it, some of the confidence of the Court?'' And he said, 
``Because we've gotten into areas of policy and not law.'' And 
I tend to agree with him, and it is my hope that you would 
agree with that as well.
    I yield back the balance of my time.
    Chairman Specter. Thank you very much, Senator Coburn.
    We are trying to figure out what the schedule is going to 
be for the balance of the evening, and for the balance of the 
week. We now have Senator Biden, who has requested 20 minutes, 
and Senator Feinstein 10, and Senator Durbin 10, all of which 
will be done tomorrow. Anybody who wants a fourth round? I want 
to do the third rounds tonight so that we can move ahead 
promptly tomorrow.
    Senator Leahy. Mr. Chairman, I think that if we want to do 
this we should remember the judge and his family have been 
sitting here all day. He has been answering questions. He has 
shown more equanimity than most of us would. You sat here 
through the whole thing. I sat here through most of it, but 
Senators can come and go. He cannot. He has had to sit through 
all of it. His family has had to sit through all of it, and 
that has to be a strain. I do not think most teenage sons would 
show that much attention on these things.
    I would suggest that we would probably have far better 
questions if we can go back and go over the transcript. I know 
what I want to do, I want to go over some of it--I am not going 
to have an awful lot of questions, but I would like to go back 
to three or four places from my notes that I have some 
questions. I want to read the transcript so when I ask the 
question, in fairness to the judge, it is about what is 
specifically in the transcript.
    This is the same thing we did with Chief Justice Roberts. 
We came back on that last day, as I recall, and I think we 
wrapped up around 1, 1:30 in the afternoon.
    Chairman Specter. No. We wrapped up about 11 o'clock, a 
little before.
    Senator Leahy. Oh, did we?
    Chairman Specter. A little before 11.
    Senator Leahy. When you are having so much fun time goes by 
so quickly.
    Chairman Specter. We do not have word from Senator Kohl or 
Senator Feingold. Suppose we put the maximum of 25 minutes on 
the next round for tomorrow, and suppose we start at 9 o'clock? 
That means the only people that have to be here are Senator 
Leahy and myself at 9.
    Senator Leahy. I will be here at 9. I am here usually a lot 
earlier than that.
    Chairman Specter. Senator Schumer just on the auctioneer 
said yes?
    Senator Leahy. That is OK. I will go along with it. And 
understand though, and I would assume--you have always been 
fair--if we run into some extraordinary problem, somebody may 
need a few more minutes.
    Chairman Specter. Anybody who satisfies your extraordinary 
problem test will get more time. Make it your test.
    Senator Leahy. Thank you very much.
    Chairman Specter. Without objection, so ordered.
    Judge Alito, you have shown remarkable stamina, and you 
have shown, in my opinion, remarkable patience. I think it is 
unwise for any Senator, including the Chairman, to do too much 
commenting about anybody else's questioning, but you have been 
patient. And people may not like your answers, but they are 
your answers. We have precedent for that. Nobody has even said 
they are misleading. They have said they just do not like them. 
But you have been consistent, and very patient in stating your 
position, even though you have been called upon to state it 
repetitively, and repetitively, and repetitively. So I think it 
is well within the ambit of fairness to say that you have been 
patient, and you have shown real stamina, as has Mrs. Alito, 
and as has your loyal family.
    So that we will proceed at 9 o'clock tomorrow, and we will 
have 20 minutes for Senator Biden, 10 minutes for Senator 
Feinstein, 10 minutes for Senator Durbin, and my expectation is 
we will not have a great deal of time for Senator Kohl. I am 
not sure about Senator Feingold. And that anybody else will be 
limited to 25 minutes on the final round, subject to the Leahy 
exceptional circumstance standard.
    Recess.
    [Whereupon, at 6:37 p.m., the Committee was adjourned, to 
reconvene on Thursday, January 12, 2006, at 9 a.m.]


 NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

                              ----------                              


                       THURSDAY, JANUARY 12, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9 a.m., in room 
216, Hart Senate Office Building, Hon. Arlen Specter, Chairman 
of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, 
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
    Chairman Specter. The hearing will resume on the 
confirmation proceedings for Judge Samuel Alito to the Supreme 
Court of the United States.
    Good morning, Judge. Saw your family in the hallway as we 
were coming down. Everybody appears to be bright and rested and 
ready.
    Judge Alito. Thank you, Senator.
    Chairman Specter. The Committee staff, accompanied by 
representatives of Senator Kennedy, went through the Rusher 
files yesterday, finishing up their work, I am advised, at 
about 2 a.m. this morning, and provided me with a memorandum 
that the Committee staff reviewed more than four boxes of 
documents from the personal files of William Rusher concerning 
CAP. Judge Alito's name never appeared in any document. His 
name was not mentioned in any of the letters to or from the 
founder, William Rusher. His name was not mentioned in any of 
the letters to or from CAP's long-term executive director, T. 
Harding Jones. His name does not appear anywhere in the dozens 
of letters to CAP or from CAP. The files contained canceled 
checks for subscriptions to CAP's magazine, Prospect, but none 
from Judge Alito. The files contained dozens of articles 
including investigative expos written at the height of the 
organization's prominence, but Samuel Alito's name is nowhere 
to be found in any of them.
    The Rusher files contained lists of the board of directors, 
the advisory board, and the contributors to both CAP and 
Prospect Magazine, but none of these lists contains Samuel 
Alito's name. The files contain minutes and attendance records 
from CAP meetings in 1983 and 1984, just before Samuel Alito 
listed the organization on his job application, but Samuel 
Alito did not attend any of those meetings, at least according 
to those records. He was not even mentioned in the minutes. The 
files contained dozens of issues of CAP's magazines, but none 
of the articles was written by, quoted or mentioned Samuel 
Alito. CAP founder, William Rusher, said, ``I have no 
recollection of Samuel Alito at all. He certainly was not very 
heavily involved in CAP if at all.''
    Before turning to Senator Leahy for his allotted time, I 
would yield to him if he has any opening comments he chooses to 
make.
    Senator Leahy. Mr. Chairman, as we know, this will be the 
last opportunity for the American people to learn what Judge 
Samuel Alito thinks about the fundamental constitutional 
rights, whether he is going to serve to protect their liberty, 
their privacy from Government intrusion. I think it is even 
more critical today because of the efforts to expand 
Presidential--
    Chairman Specter. Excuse me, Senator. Do you want to start 
on your 25--
    Senator Leahy. Oh. I thought you were asking me--
    Chairman Specter. Opening comments, sure, yes. We are not 
going to start your time clock until you tell us.
    Senator Leahy. Just a short opening comment.
    Chairman Specter. Fine.
    Senator Leahy. I know the judge probably feels like he has 
been here and doing nothing but being on a hot seat, but we are 
talking about a lifetime appointment, and it is the most 
powerful court in the land. It is at a time when we see this 
effort to expand Presidential powers such as illegal wiretaps 
on Americans, the President using a signing statement to create 
exemptions from laws prohibiting torture. These are all 
important things. The Supreme Court is our ultimate guardian, 
has to be our ultimate guardian, and we need to know whether 
Samuel Alito is willing to be that kind of guardian.
    I am still troubled by some of the questions. Mr. Chairman, 
I know you are going to be asking questions, and I will wait to 
ask mine after that, of course.
    Chairman Specter. I am going to reserve my time at this 
juncture, and turn to Senator Leahy for time up to 25 minutes.
    Senator Leahy. Thank you.
    In his confirmation hearing last September, we went through 
hours and hours, days and days for Judge Roberts, now Chief 
Justice. I asked him if the Constitution permits the execution 
of an innocent person. He said if they have been falsely 
convicted and they are innocent, they should not be in prison, 
let alone executed. I think we all agree with that. But I 
pushed further because my question was whether the Constitution 
permits the execution of an innocent person, if you know that 
they are innocent. He said, ``I would think not.''
    Judge, do you agree with Chief Justice Roberts?
    Judge Alito. I agree that it is one of the most fundamental 
rights protected by our Constitution, that no one may be 
convicted of an offense unless they are proven to be guilty 
beyond a reasonable doubt, and further than that, the Supreme 
Court's decisions since 1976 dealing with the Eighth Amendment, 
have attempted to create a whole set of procedural safeguards 
to make sure that the death penalty is not imposed arbitrarily 
or capriciously, and this whole framework is designed to 
prevent exactly that, to prevent the conviction of an innocent 
person, and to prevent the imposition of capital punishment on 
someone who is innocent, or on someone who is guilty of the 
offense but it not deserving to have that penalty imposed on 
the person.
    Senator Leahy. Judge, as we know, we saw the cases in 
Illinois of people a few days away from execution, they have 
been sentenced to death; they have been convicted; they had 
their trial, gone to trial; jury came back; apparently 
appropriate procedure followed on sentencing; they are now 
sentenced to death. A few days before somebody comes forward at 
the very last minute because of DNA evidence and says, 
``Whoops, we've got the wrong person.'' And then they are let 
loose. We are finding it in Virginia, and now in other cases it 
appears that there is a possibility a number of innocent people 
were executed.
    What if you had a case, they have gone through the whole 
thing, they have been convicted; the judge has followed all of 
the appropriate sentencing; the jury came back--did everything 
following the law. And now they are up for execution. Evidence 
comes up, say DNA evidence, or a confession of somebody else. 
Would it be unconstitutional then to execute that person?
    Judge Alito. Well, Senator, it is unconstitutional to 
execute someone who has not been proven guilty beyond a 
reasonable doubt. Now, depending--
    Senator Leahy. They may have been found guilty beyond a 
reasonable doubt. What I am saying is that a lot of these 
people were on death row and then had to be commuted at the 
last moment, when a few days before the execution they found, 
whoops, we have the wrong guy.
    Judge Alito. Well, that's the ultimate tragedy that could 
possibly occur in our criminal justice system, and we should do 
everything we can to prevent that from ever occurring, and I 
have not had a case during my time on the court of appeals--
I've had only a handful of capital punishment cases where there 
was a suggestion that that was a possibility.
    If the evidence develops at the last minute, then I think--
and if this is a--it would depend to some degree on--the 
procedures would depend on--would be different depending on 
whether the person had been convicted in State court or in 
Federal court. The first procedural step in either instance 
would be to file a petition with the trial court. It would be--
if it were in State court, it would be a State collateral 
relief petition, and those are handled differently depending on 
the State. And then a file of--I'm sorry. You could go to the 
State court or you could file a second habeas petition, attempt 
to file a second habeas petition in Federal court, and follow 
the procedures that are set out in habeas corpus statute.
    Senator Leahy. I understand all of the steps. Like you, I 
was a prosecutor, even though we do not have the death sentence 
in Vermont, we do have real life imprisonment, and I remember 
those. But you agree though with Chief Justice Roberts that the 
Constitution does not countenance the execution of an innocent 
person?
    Judge Alito. The Constitution is designed to prevent that.
    Senator Leahy. The reason I ask this, this is something 
that was originally raised, as I recall, in the Judiciary 
Committee by Chairman Specter, the Rule of Four. Are you 
familiar with that procedure on the Supreme Court? In other 
words, it takes five Justices to stay an execution, but four to 
hear one of these cases, so usually if there has been four that 
have agreed it should be stayed, somebody will make the fifth 
just as a matter of courtesy. That has not been followed that 
much recently. Chairman Specter has called it a bizarre and 
unacceptable outcome to not provide the fifth vote. He once 
introduced legislation to codify the Rule of Four.
    If you were one of the Justices and you are there--and 
these things always seem to happen, everybody is scattered all 
over the place--four of your fellow justices have said that 
they would hold. What would you do? They voted to stay the 
execution. They are asking you to be the fifth vote.
    Judge Alito. I had not heard of this rule until the 
hearings for Chief Justice Roberts, but it seems to me to be a 
very sensible procedure because I think we all want to avoid 
the tragedy of having an innocent person executed or having 
anyone executed whose constitutional rights have been violated.
    Senator Leahy. I raise it, as I did with then-Judge Roberts 
here, because some things you will remember from this hearing, 
some things you will probably try to forget from this hearing, 
both you and your family, but I hope this one, at least this 
idea stays in your mind.
    About a decade ago in Washington v. Glucksberg, the Supreme 
Court declined to find that terminally ill patients had a 
generalized constitutional right to a physician's aid in dying, 
preferring the matter be left to the States. The Court noted: 
``Throughout the Nation, Americans are engaged in an earnest 
and profound debate about the morality, legality and 
practicality of physician-assisted suicide.'' Chief Justice 
Rehnquist wrote, ``The Court's holding permits the debate to 
continue as it should in a democratic society.'' I remember 
reading that. I found it very practical, aside from the legal 
things, a very practical response.
    Last spring, we witnessed a fierce legal battle over the 
medical treatment of Terri Schiavo. She was in a persistent 
vegetative state for more than a decade, and ultimately after 
she died, the autopsy showed that. But we found politicians 
rushing to the cameras, engaged in extraordinary measures to 
override what the State courts determined be her own wishes, 
State courts who had heard countless cases on this. Suddenly 
this became the thing politicians all over the place rushing 
for it. The power of the Federal Government was wielded by some 
to determine, in my view, deeply personal choices. The 
President even came back to Washington in the middle of one of 
his vacations to sign special legislation on this. Do you agree 
with the idea advanced in the Cruzan case that the wishes of an 
unconscious patient, to the degree they can be known, should 
govern decisions regarding life-sustaining therapies?
    Let us assume that the wishes are clearly known. Should 
they be followed?
    Judge Alito. Well, the Cruzan case proceeded assumed for 
the sake of argument, which is something that judges often do, 
that there is a constitutional right to say--that each of us 
has a constitutional right to say, ``I don't want medical 
treatment.'' And the Cruzan decision recognized that this was a 
right that everybody had at common law. At common law, if 
someone is subjected to a medical procedure that the person 
doesn't want, that's a battery and it's a tort, and the person 
can sue for it. It is illegal. The Court did not--
    Senator Leahy. One of those cases where we got something 
from that foreign law, in this case English common law; is that 
correct?
    Judge Alito. Well, that's correct, and I think that our 
whole legal system is an outgrowth of English common law.
    Senator Leahy. That popped in to my mind because I was 
thinking of some of the people talking about paying attention 
to foreign law. Most of our law is based on foreign law. But go 
ahead, common law.
    Judge Alito. Most of our common law is an outgrowth of 
English common law, and I think it helps to understand that 
background often in analyzing issues that come up.
    Senator Leahy. But you agree with Cruzan? I am thinking if 
somebody has a ``do not resuscitate'' order, do you agree with 
that?
    Judge Alito. That's a fundamental principle of common law, 
and Cruzan assumed for the sake of argument that that would be 
a fundamental constitutional right, but that is a right that 
people have had under our legal system for a long time, to make 
that decision for themselves.
    Senator Leahy. My wife is a nurse and she was working on 
the medical-surgical floor, and she would mention about people 
with these DNR, do not resuscitate. Would you agree that a 
patient would have a right--for example, if you have a living 
will, you have a right to designate somebody who can speak for 
you in a case of terrible injury or unconsciousness, speak for 
you on a do not resuscitate, or do not use heroic measures and 
all the rest, do you agree with that?
    Judge Alito. Yes, Senator. That's, I think, an extension of 
the traditional right that I was talking about that existed 
under common law, and it's been developed by State 
legislatures, and in some instances by State courts, to deal 
with the living will situation and with advances in--which I 
think is in large measure a response to advances in medical 
technology which create new issues in this area.
    Senator Leahy. We have three separate and co-equal branches 
of Government, as the Constitution says. We have these checks 
and balances, and most of us feel that the Congress is going to 
carry out that check and balance. They have to carry out real 
oversight and make sure the Government is accountable to the 
American people. If you do not do that, corruption and 
incompetence sets in. We have given a lot of powers to our 
Government in the fight against terrorism and others, and the 
check and balances to make sure there is oversight. Do you 
believe in the general principle of the Congress having major 
oversight powers?
    Judge Alito. I don't think there's any question about that.
    Senator Leahy. Let me go to this, and I was thinking of 
this as we were talking about the Schiavo case. I do not want 
you to have to get involved in what many found was kind of a 
sorry exercise when people are already suffering enough, a 
sorry exercise by the Congress, so I will not talk about the 
House committees' unbelievable subpoena to Terri Schiavo. But 
let me ask you this: could the Judiciary Committee issue a 
subpoena for a defendant on death row in a State prison, if we 
believed he was about to be executed and thought he was 
innocent?
    Judge Alito. Could the subpoena--could this Committee issue 
a subpoena--
    Senator Leahy. And enforce it?
    Judge Alito. To have the defendant come and testify before 
the Committee?
    Senator Leahy. Yes. Say it is an hour before execution, for 
example, to make it even a tougher case.
    Judge Alito. It's not a question that I ever thought of. 
Sitting here I can't think of an objection to it, but I would 
have to--I would have to hear whatever arguments there were to 
be made.
    Senator Leahy. This may seem to be bouncing around here a 
little bit. I am trying to go over again in my own mind, after 
looking at the transcript last night, some of the things we 
were saying. You were in a discussion with a number of Senators 
about views of the court, or how the American people view 
courts, and how basically in a democracy courts have to have 
the respect of people if they are going to be able to carry out 
their orders. Brown is probably one of the key examples there 
where the Chief Justice worked 2\1/2\ years until he got a 
unanimous Court decision.
    Justice O'Connor gave a speech decrying the present climate 
of antipathy between the judiciary and some Members of 
Congress, and I have spoken with her and others--and the late 
Chief Justice--about this. She expressed concern about efforts 
to limit Federal court jurisdiction in areas that some Members 
of Congress think the Federal courts should not be involved. We 
have seen a number of efforts to strip the Federal courts of 
jurisdiction when some Members of Congress felt they disagreed 
with them.
    Now, I thought some of these issues were settled by Marbury 
when Chief Justice Marshall said, ``It is emphatically the 
province and duty of the judicial department to say what the 
law is.''
    Now, the court-stripping bills are not without precedent. 
Recent efforts have failed. I recall one where three Senators 
finally talked it down until it ran out of time. I was one of 
the three. Senator Lowell Weicker of Connecticut was one of the 
other three. On the way out, the third one put his arm around 
us and said, ``I think we are the only true conservatives in 
this Senate.'' We both said, ``Thank you, Barry Goldwater. We 
appreciate you joining us in this.'' I took it as a great 
compliment.
    Now, imagine that in the early 1950s Congress enacted a law 
that purported to strip all Federal courts, including the 
Supreme Court, of jurisdiction to hear cases and appeals 
involving the segregation of public schools. Would such a law 
have been constitutional?
    Judge Alito. Well, there's a debate among scholars about 
the extent of the authority of Congress to structure the 
appellate jurisdiction of the Supreme Court, and there are 
those who say that Congress has the authority to eliminate 
appellate jurisdiction by topic, and there are those who say 
that if--and they rely on the language of Article III. And 
there are those who say that to take away jurisdiction over a 
category of cases such as that would be a violation of another 
constitutional provision, in that instance a violation perhaps 
of the Equal Protection Clause.
    And there is this debate that it has not--that it is not 
something--
    Senator Leahy. Have you taken part in that debate?
    Judge Alito. Pardon me?
    Senator Leahy. Have you taken a position in that debate?
    Judge Alito. I have not taken part in that, and I have 
read--
    Senator Leahy. Would you like to?
    Judge Alito. Not at this time.
    [Laughter.]
    Senator Leahy. I don't know why that surprises me.
    Judge Alito. The case law is not definitive on this 
question. According to the scholars, Ex Parte McCardle is a 
case that can be interpreted in a number of different ways.
    Senator Leahy. You know, we had many in the Congress at 
that time, had they thought that Brown v. Board of Education 
was about to come down the way it did, probably would have made 
efforts to strip the authority of the Supreme Court to hear it. 
And I am afraid that as we find some of these efforts where the 
courts become a very convenient whipping boy to people looking 
for votes or whatever, that that might happen again. And I 
would suggest you think long and hard on it.
    Let me ask you this, and it probably invites more effort to 
find out. On more than one occasion, the House of 
Representatives has included a provision in an appropriations 
bill--and we all agree that the Congress has the power of the 
purse--but in an appropriations bill saying that none of the 
funds can be spent enforcing a particular court decision, pick 
something that they feel is unpopular at the moment, so they 
say no money can be spent to enforce it.
    Let us say the Court has ruled basically on a 
constitutional issue saying this shall be enforced; the 
Congress says, no, we won't allow money to be spent. Does that 
violate the Constitution?
    Judge Alito. Well, that's also a provocative constitutional 
question. I can't recall an instance where that has been done 
with respect to a constitutional decision. Perhaps it has been. 
I do recall back during the 1980s that it was done with respect 
to an issue of antitrust. And I would assume that if there 
wasn't--well, obviously if there isn't a constitutional 
question raised by that limitation on the expenditure of funds, 
and if you're talking about a non-constitutional question, 
maybe there is no constitutional issue raised, there wouldn't 
be an obstacle to Congress's doing that.
    With respect to a constitutional question, that's a 
provocative constitutional issue that--I don't know the answer 
to it, and I cannot think of precedent on that point. I don't 
believe there is any.
    Senator Leahy. Let's take a nonconstitutional--I want to 
make sure I understand your answer. Decisions come down of 
whatever nature. You mentioned antitrust. Whatever it is comes 
down from the Court, and it is going to require some 
enforcement. And the Congress says, no, we are not going to put 
the money in there. Can the Congress do that?
    Judge Alito. Well, I'd have to know the facts of the case 
and hear the arguments on both sides of it. Unless there was a 
constitutional objection, then that falls within one of the 
most important powers of the Congress, the expenditure of funds 
Congress exercises. The Framers wanted Congress to have the 
control of the purse because Congress is the branch that is 
closest to the people. And I would think that--and Congress 
obviously has great latitude in this area.
    I don't know what constitutional objections would be raised 
to doing that with respect to a nonconstitutional question, but 
I'd have to understand exactly what was--
    Senator Leahy. Well, it is something to keep in mind 
because it may happen. You know, if we can grandstand, if 
Congress can grandstand the way it did on the Schiavo case, you 
have to wonder what else may come down.
    One of the advantages or disadvantages of being here for a 
long time, I have actually been here for the hearings on every 
member of the Supreme Court, including that of former Chief 
Justice Rehnquist. And Senator Specter and I have served here 
together a long time. And I went back to one of his questions. 
He asked then-Justice Rehnquist whether Congress can strip the 
Supreme Court of jurisdiction over First Amendment cases 
involving freedom of speech, press, or religion. And I think 
the Chairman remembers this. He can be a rather tenacious 
questioner, as I know from some of my weekend phone calls from 
him. But he kept pushing then-Justice Rehnquist until he 
finally got an answer. In the end, then-Justice Rehnquist gave 
his view. He said the Congress could not remove the Court's 
jurisdiction over First Amendment cases.
    So let me ask the same question that Senator Specter asked 
in 1986. Does Congress have the authority to say the Supreme 
Court does not have jurisdiction over First Amendment issues of 
freedom of speech, press, and religion?
    Judge Alito. Well, I would give the same answer to that 
that I gave to the more general question you asked a few 
minutes ago about taking away the Supreme Court's appellate 
jurisdiction over a topic of cases. It's not a question that I 
have obviously had to deal with in my capacity as a judge or 
something that I have written about or studied in any sort of a 
focused way. My understanding of the writing on the question is 
that there's a division of thought among leading constitutional 
scholars on the issue, and there are some who argue that 
Congress has plenary authority to define the appellate 
jurisdiction of the Supreme Court, and there are others who 
argue that if Congress takes away the authority of the Supreme 
Court to hear a particular type of case, that there could be a 
violation of another constitutional provisions, and in that 
instance it would be the First Amendment. And as a matter of 
constitutional law, I don't feel I can go further than that. I 
have--
    Senator Leahy. But, Judge, this is somewhat similar to the 
initial answers given by then-Justice Rehnquist. But he 
ultimately came down and said in that hearing that Congress 
could not remove the Court's jurisdiction over First Amendment 
cases.
    Are you telling me that--and I just wanted to make sure I 
fully understand your answer--you are not willing to go to the 
extent then-Justice Rehnquist did at his hearing?
    Judge Alito. I gave a speech a while ago addressing this 
question from a practical standpoint or touching on it from a 
practical standpoint, and I said that I thought that doing 
something like this would be an awkward and undesirable way of 
proceeding because it would lead to a lack of uniformity in 
decisions. If jurisdiction is taken away from the Supreme Court 
but jurisdiction remains in the courts of appeals, then 
conflicts in the circuit would develop--conflicts in the 
circuits would develop and you'd have conflicting decisions 
potentially in different parts--governing in different parts of 
the country and no way to resolve the issue. And if the 
jurisdiction was taken away from the Federal courts in general, 
then you would potentially have conflicting State court 
decisions. So the First Amendment, or whatever constitutional 
provision was at issue, would mean something different 
potentially in Vermont than it did in New Hampshire or in some 
other State.
    So there are undesirable practical consequences of 
proceeding in that way. I'm--
    Senator Leahy. Your answer would be the same, I assume, if 
I was asking the question about the Fourth or the Fifth or the 
Sixth Amendment, basically the same?
    Judge Alito. It would be, Senator. I have just not studied 
this issue in enough depth to be able to give an answer. I 
would have to study it in depth and probably hear it in the 
context of a case. What I do know is that there is a division 
of authority among leading constitutional scholars, and I would 
not want to hazard an answer to the question here without going 
into the question with a lot--studying the question in 
considerably greater depth than I have.
    Senator Leahy. This will be my last, and I appreciate the 
courtesy of the Chairman, who, I might say, has run this 
hearing with total fairness, as he always does. I may have some 
followup questions in writing, but this will be last chance to 
ask you anything.
    Under your theory of the unitary Executive, are citizen 
suit provisions, such as those in our environmental laws, 
allowing citizens to act basically as private attorneys general 
and sue polluters, are they constitutional?
    Judge Alito. I don't see a connection between the unitary 
Executive theory and that issue, and I think Congress has the 
authority to create a private cause of action for anyone that 
Congress chooses to create such a cause of action for, subject 
only to whatever limitations are imposed by the Constitution. 
But we often grapple with the issue of whether Congress 
intended to create a private cause of action for a particular 
class of plaintiffs. That's a difficult issue that comes up 
with some frequency in Federal litigation. But where Congress 
speaks directly to the question and says that people with--and 
defined the category of cases, the category of plaintiffs who 
can bring a suit, a citizen suit, or whatever it is, then 
that's definitive, of course, subject only to whatever 
limitations the Constitution imposes.
    Senator Leahy. Judge, that is an answer--the substance of 
what you said is something obviously I would like, but I am 
still troubled by it because in November 2000, right after the 
Presidential election, you came and spoke to a meeting of the 
Annual Federalist Society Lawyers Convention about the powers 
of the President. And when you discussed your theory of the 
unitary Executive, you criticized the Supreme Court's upholding 
the independent counsel statute, among other things. Is your 
answer today different than what you were saying then?
    Judge Alito. What I said in that speech was that the 
Congress--I'm sorry, the Constitution confers the Executive 
power on the President, and when we are dealing with something 
that is within the President's Executive power, without getting 
into the scope of Executive power, and there I was focusing on 
the President's duty to take care that the laws are faithfully 
executed. That's explicitly set out in the Constitution, so 
there can't be any debate about whether or not the President 
has that power.
    When we're dealing with something that is within the scope 
of the President's Executive power, the President should have 
the authority to control the executive branch, and the latest 
expression of the Supreme Court on that issue at the time was 
the Morrison decision, and the Morrison decision formulated the 
governing standard in what I would call functional terms. And 
it said that Congress has the ability to--has the authority to 
place restrictions on the President's ability to remove 
inferior executive officers, provided that in doing so Congress 
does not take away the President's authority to control the 
executive branch. And I was talking about the importance of 
maintaining the principle that the President is the head of the 
executive branch and should control the executive branch.
    Senator Leahy. But you did at that time criticize the 
Supreme Court's upholding the independent counsel statute, did 
you not?
    Judge Alito. I said that it was inconsistent with what you 
could call the pure theory of the unitary Executive. But at the 
time, of course, Morrison had been decided, and it was a 
resounding 8-1 decision, and it is a very important precedent 
of the Court.
    Senator Leahy. If you had been there, it might have been 7-
2? Is that what you are suggesting?
    Judge Alito. Well, if it comes up before me, if I am 
confirmed, then Morrison is a strong expression of the view of 
the Supreme Court on the question, and an 8-1 precedent on an 
issue that was important and controversial at the time when it 
came up before the Court, and it was very clear and, as I said, 
a resounding decision by the Supreme Court on the question.
    Senator Leahy. Well, I do not want to intrude on other 
Senators' time, and I may do a followup question with you. 
Thank you for your answers. We have obviously agreed on some 
things and disagreed on others. I appreciate you taking the 
time to answer.
    Mr. Chairman, I appreciate your time.
    Chairman Specter. I am going to use just a little of my 
reserved time to comment on what Senator Leahy raised about the 
issue with Chief Justice Rehnquist on his statement that you 
could not take away the jurisdiction of the Supreme Court of 
the United States on First Amendment issues. That was as 
interesting a dialog as I have had in my tenure here, and I 
have had a few, and it arose in a curious context.
    I had asked the Chief Justice about the question and he 
refused to answer. And overnight, the staff had found an 
article written by a young Arizona lawyer named William H. 
Rehnquist in 1958, which was published in the Harvard Law 
Record, not the Harvard Law Review but the Harvard Law Record. 
And in that article, lawyer Rehnquist said that the Senate 
Judiciary Committee was derelict in its duty in questioning 
Justice Whittaker at his confirmation hearing in not asking 
pointed questions about due process or equal protection.
    When my turn came, I came back to then-Justice Rehnquist 
and said, how about it? Are you that William H. Rehnquist. He 
admitted he was, didn't have much choice. And I said, well, how 
about this article? And he emphatically said, ``I was wrong.''
    [Laughter.]
    Chairman Specter. But that provided--
    Senator Hatch. He was under oath.
    Chairman Specter. That provided an opening, and I proceeded 
to continue the line of questioning. Finally, he allowed as to 
how Congress couldn't take away the Court's power over the 
First Amendment.
    It seems to me patently clear that Congress cannot take 
away the jurisdiction of the Supreme Court on constitutional 
issues. It cannot do it. That is the principal function of the 
Supreme Court of the United States, is to interpret the 
Constitution. And if the Congress could take away that 
authority, the Court's authority would be vacuous.
    But then, as you might expect, I asked him about the Fourth 
Amendment, search and seizure, and Fifth Amendment, privilege 
against self-incrimination, went right down the line. He 
refused to answer every question. And I said, well, why will 
you answer questions on the First Amendment and not on the rest 
of them? He wouldn't answer that, either.
    [Laughter.]
    Chairman Specter. Chief Justice Rehnquist was confirmed 65 
to 33, which confirmed an observation which I have made from 
time to time, Judge Alito, that nominees answer just about as 
many questions as they think they have to to be confirmed. He 
may turn out to be a notable exception, but I think that is a 
valid generalization. It also confirmed my experience that 
nominees remember these proceedings and nominees are influenced 
by these proceedings in very subtle ways.
    We don't extract promises, but when Senator Leahy very 
adroitly asks you about the rule of four on granting cert, four 
Justices say the cert is granted but it takes five to stay an 
execution in a capital case, how ridiculous can you be? Senator 
Leahy wondered if you would remember that. Well, I predict you 
will, if confirmed, remember that. In fact, I predict you will 
remember it even if you are not confirmed.
    But to this day, Justices' comments to me about questions 
they had here--every time I see Justice Souter, he says he 
still hasn't made up his mind on whether Korea was a war or 
not. And the other Justices--I won't go into any more detail.
    I am going to reserve the balance of my 20 minutes and 54 
seconds. Senator Hatch?
    Senator Hatch. I will reserve my 25 minutes.
    Chairman Specter. Senator Kennedy, you are recognized for 
25 minutes.
    Senator Kennedy. Thank you. Good morning.
    Judge Alito. Good morning, Senator.
    Senator Kennedy. Just to initially follow-up on the last 
area of questioning by Senator Leahy about a unitary Executive, 
I have asked you questions about this earlier in the week. My 
colleagues have. I am not going to get back into the speech 
that you gave at the Federalist Society. Well, I will mention 
just the one part of it that is of concern.
    ``If the administrative agencies are in the Federal 
Government, which they certainly are, they have to be in one of 
those branches, legislative, executive, judicial, and the 
logical candidate is the executive branch. The President has 
the power and the duty to supervise the way in which the---to 
which subordinate executive branch officials exercise the 
President's power, carrying Federal law into execution.''
    So we asked you about that power and that authority and you 
responded, as I think you just repeated here, that the 
Humphrey's case was the dominant case on this issue. Am I 
roughly correct? I am trying to get through some material. Is 
it--
    Judge Alito. Yes. It was the leading case that was followed 
up by the Morrison case.
    Senator Kennedy. Followed up by the Morrison case as the 
controlling case on these administrative agencies. But what you 
haven't mentioned to date is your dissent from the Morrison 
case. We have been trying to gain your view about the unitary 
Executive. Most people believe we have an executive, 
legislative, and judicial branch--and now we have this unitary 
Executive which many people don't really understand and it 
sounds a little bizarre. You have indicated support for it. You 
have commented back and forth about it. You have indicated the 
controlling cases that establish the administrative agencies. 
You refer to the Morrison case as guiding the authority.
    But then in your comments about Morrison, you then proceed 
to outline a legal strategy for getting around Morrison. This 
is what you said. ``Perhaps the Morrison decision can be read 
in a way that heeds if not the constitutional text that I 
mention, at least the objective for setting up a unitary 
Executive. That could lead to a fairly strong degree of 
Presidential control over the workings of the administrative 
agencies in the area of policymaking.''
    Our question in this hearing is what is your view of the 
unitary Executive. You have responded to a number of our 
people, but we are interested in your view and your comments on 
the Morrison case, which you say is controlling, but we want to 
know your view and it includes these words--``that could lead 
to a fairly strong degree of Presidential control over the 
workings of the administrative agencies in the area of 
policymaking.'' Now, that would alter and change the balance 
between the Congress and the President in a very dramatic and 
significant way, would it not?
    Judge Alito. I don't think that it would, Senator. The 
administrative agencies--the term ``administrative agencies'' 
is a broad term and it includes the Federal Reserve--it 
includes agencies that are not regarded as so-called 
independent agencies. It includes agencies that are within--
that are squarely within the executive branch under anybody's 
understanding of the term, agencies where they are headed by a 
Presidential appointee whose term of office is at the pleasure 
of the President, and that's principally what I'm talking about 
there, the ability of the President to control the structure of 
the executive branch, not agencies--the term ``administrative 
agencies'' is not synonymous with agencies like the FTC, which 
was involved in the Humphrey's Executor case, where the agency 
is headed by a commission and the commissioners are appointed 
by the President for a term of office and there are conditions 
placed on the removal of the commissioners.
    Senator Kennedy. The point, Judge, the answer you gave both 
to my colleagues Senator Leahy, Durbin, and to me, and the 
quote, ``the concept of a unitary Executive does not have to do 
with the scope of Executive power'' really was not accurate. 
You are admitting now that it has to do with the administrative 
agencies and this would have a dramatic and important 
reconsideration of the balance between the Executive and the 
Congress. I haven't got the time to go through, but we are 
talking about the Federal Reserve, Consumer Product Safety, the 
Federal Trade Commission, a number of the agencies that would 
be directly considered and that have very, very important 
independent strategy.
    Judge Alito. Senator, as to the agencies that are headed by 
commissions, the members of which are appointed for terms, and 
there are limitations placed on removal, the precedents--the 
leading precedent is Humphrey's Executor and that is 
reinforced, and I would say very dramatically reinforced, by 
the decision in Morrison, which did not involve such an agency. 
It involved an officer who was carrying out what I think 
everyone would agree is a core function of the executive 
branch, which is the enforcement of the law, taking care that 
the laws are faithfully executed, and yet--
    Senator Kennedy. But the point here is that you take 
exception to Morrison. You are very clear. We are interested in 
your views. We understand Humphrey's and Morrison are the 
guiding laws, but we talked about stare decisis and other 
precedents. But you have a different view with regards to the 
role of the Executive now, an enhanced role, what they call the 
unitary Executive, and that has to do, as well, with the 
balance between the Executive and the Congress in a very 
important way in terms of these administrative agencies.
    I haven't got the time to go all the way through, but we 
did have some discussion about those agencies and how it would 
alter the balance of authority and power between the Congress 
and the Executive. That is very important. It is enormously 
interesting. We have had Professor Calabresi from Harvard 
University spell this out in great detail, and I know you have 
separated yourself a bit from his thinking, to the extent that 
he would go in terms of administrative agencies. The point is, 
there would be a different relationship if your view was the 
dominant view in the Supreme Court between the Executive and 
the Congress and that is really the point.
    Judge Alito. But Senator Kennedy, what I have tried to say 
is that I regard this as a line of precedent that is very well 
developed and I have no quarrel with it and it culminates in 
Morrison, in which the Supreme Court said that even as to an 
inferior officer who is carrying out the core Executive 
function of taking care that the laws are faithfully executed, 
it is permissible for Congress to place restrictions on the 
ability of the President to remove such an officer, provided 
that in doing so, there is no interference with the President's 
authority, and they found no interference with that authority 
there. That is an expression of the Supreme Court's view on an 
issue where the claim for--where the claim that there should be 
no removal restrictions imposed is far stronger than it is with 
respect to an independent agency like the one involved in 
Humphrey's Executor.
    Senator Kennedy. The point is that you differed with 
Morrison and outlined a different kind of a strategy. I want to 
move on.
    I want to come back just briefly again to the Vanguard 
issue, where I continue to be troubled and puzzled by your 
answers to me and others. Now, just to get back to the starting 
point, in your sworn statement to the Committee when you were 
nominated to the circuit court in 1990, on page 15 of that 
statement, you wrote this about your recusal practices. ``I do 
not believe that conflicts of interest relating to my financial 
interests are likely to arise. I would, however, disqualify 
myself from any cases involving the Vanguard Companies.'' So 
according to your sworn promise, you were going to recuse 
yourself from cases involving the Vanguard Companies, is that 
correct?
    Judge Alito. I said I would disqualify myself from any 
cases involving the Vanguard Companies.
    Senator Kennedy. All right. You also said you would recuse 
yourself from any case involving your sister's firm--
    Judge Alito. That's correct.
    Senator Kennedy.--and cases in which you were involved in 
the U.S. Attorney's Office, is that correct?
    Judge Alito. Yes, that's correct.
    Senator Kennedy. And there has been some discussion as to 
whether that commitment covered only the initial period of your 
judgeship, and I am not going to go into that. I am not going 
into that.
    I just want to know about the steps you took to meet your 
commitment to the Committee even in the initial years. On 
Tuesday, you told Senator Feingold that you had no recollection 
of whether you put Vanguard on your recusal list when you were 
first appointed to the bench in 1990. Is that still right?
    Judge Alito. That's correct. I don't have the initial list 
that was submitted to the clerk's office and I think I 
clarified in response to Senator Feingold's question that that 
is a list for--that is a list that is used by the clerk's 
office to make the first cut on recusal issues, but it is not 
by any means the last word.
    Senator Kennedy. OK. And in 1990, you owned $80,000 of 
Vanguard funds, is that right? And over the years, it grew to 
hundreds of thousands, is that correct?
    Judge Alito. It grew, yes.
    Senator Kennedy. So you were getting reports from Vanguard 
now either monthly or quarterly or annually, were you not, 
reporting--
    Judge Alito. Yes, I was.
    Senator Kennedy. All during this period of time?
    Judge Alito. Yes.
    Senator Kennedy. Do you know whether Vanguard was on your 
recusal list in 1991?
    Judge Alito. I don't know what was on my--the list that was 
with the clerk's office prior to the time when the system was 
computerized. I have seen recently, and I believe you have 
copies of the lists that were on the computer, and those lists 
do not include Vanguard. There is no question about that.
    Senator Kennedy. We received your standing recusal list 
from the Third Circuit earlier this week. It is dated January 
28, 1993, and Vanguard is not on it. You have your sister's law 
firm on it. You have your cases from the U.S. Attorney's Office 
on it, but not Vanguard, your largest investment. Here are the 
recusal lists for 1994, 1995, 1996, and Vanguard is not on any 
of them, either. Do you have any reason to disagree with the 
report from the Clerk of the Court?
    Judge Alito. I don't, Senator. I don't know whether--I have 
no comment on the list. That's the list that they had and I 
don't know exactly how that list came about, but that's the 
list they have.
    Senator Kennedy. What does it say at the top of the 1/28/93 
list under the date? As I understand, it says ``no changes.''
    Judge Alito. As of 1/28/93, no changes. That's correct.
    Senator Kennedy. So this was 1993, so there were no changes 
in that from 1992, and you have listed probably eight or nine 
different items on there, have you not?
    Judge Alito. There are eight items listed.
    Senator Kennedy. OK. So you have got eight items on there. 
Vanguard isn't on it, and it says no changes from the previous 
year. So I assume that means the 1992 list was the same, so 
that you did not have Vanguard on the 1992 list, either. Do you 
remember whether you ever placed Vanguard on your recusal list 
at any time between the time you were sworn in and January 
1993?
    Judge Alito. As I said, I don't have a copy of lists that 
predate this. In fact, I didn't have a copy of these lists and 
I don't know, obviously, I can't recall what was on the earlier 
lists.
    Senator Kennedy. Well, in 1994, you removed the U.S. 
Attorney's Office from your recusal list, is that right?
    Judge Alito. Yes.
    Senator Kennedy. So you did revisit the recusal list at 
that time.
    Judge Alito. I notified the clerk's office to take the U.S. 
Attorney's Office off the list. I actually think I have a copy 
of the letter that I sent there. I don't believe that I looked 
at the list and crossed it off the list. I sent them a letter 
and I outlined--I say, it has now been 4 years. This was an 
instance--another instance of my going beyond what I had to do. 
I recused myself from everything from the office, not just 
things that were there while I was in office. But after the 
passage of 4 years, I thought that the cases that I had had any 
possible connection with had washed out and so I sent a letter, 
and I have a copy of the letter, saying, take it off this list 
but notify the U.S. Attorney's Office and the public defender's 
offices that they should notify the clerk's office if any case 
comes up in which they have any reason to believe that any 
aspect of the case was in the U.S. Attorney's Office while I 
was there.
    Senator Kennedy. Well, I just mention, one of the things 
you had to do was put Vanguard on the list, was it not, because 
you gave the assurances to the Committee, sworn testimony, that 
you were going to recuse yourself. That was one of the things--
    Judge Alito. Senator, if it was not on the initial list, 
then that would be an oversight on my part. I said in answering 
the question to the Senate, I don't believe conflicts of 
interest are likely to arise. They really rarely do arise with 
respect to mutual funds. That's one of the main reasons why 
judges and other people who have to worry about conflicts 
invest in mutual funds, and no Vanguard case came before me--no 
case involving Vanguard came before me for 12 years.
    Senator Kennedy. The point is, judges--as I understand and 
is their responsibility--take the whole issue on recusal 
extremely seriously and review those lists very, very 
carefully. Given the assurances and the pledge and the promise 
under oath to the Committee. Now we find out that it is not on 
your list, and over the period of these last weeks, we have 
heard so many explanations, Judge. This is what confuses us.
    We hear first of all that it is a computer glitch. Then we 
hear, well, it doesn't really apply because it is an initial 
service list, so Vanguard really wasn't in it because I didn't 
make the decisions on it until after I had been in 12 years. I 
made the pledge to the Committee. I don't know how good that 
pledge was, or how many years it was good, but that initial 
pledge--initial service meant I didn't have to do it. And then 
we heard the excuse of, well, it was a pro se case, and we had 
different computers. That was what was mentioned in my office. 
It is a pro se case. We have different computers. There are 
different computers in the clerk's office than exist in the law 
firms here in Washington from all over the country. I could 
never quite understand it because a pro se--obviously talking 
about individuals--you would think that that might even have a 
higher kind of a requirement.
    But the facts are that you never put that Vanguard on your 
recusal list, and all of these papers were in your control. And 
that, I think, is a matter of concern to the--it should be to 
all of us.
    Judge Alito. Senator, could I just say a brief comment on 
that?
    Senator Kennedy. Yes.
    Judge Alito. I have tried to be as forthcoming in 
explaining what happened here as I possibly could be, and I am 
one of those judges that you described who take recusals very, 
very seriously. And I served for 15-and-a-half years. I sat on 
the merits on well over 4,000 cases.
    In addition to that, let me just mention the statistics for 
a recent year, and I think these are typical of my entire 
period of service. During the last calendar year, I received 
over 500 petitions for re-hearing; most of those are in cases I 
didn't sit on initially; over 400 motions. Most of those are in 
cases I didn't hear on the merits, and many of those are just 
as important as appeals on the merits because they involve 
things like whether someone is going to be removed to a country 
where the person claims that they will be subjected to 
persecution, or they are applications by habeas petitioners for 
permission to proceed with--to take an appeal in a habeas case. 
And if we don't issue the certificate of appealability, that is 
the end of the matter for that petitioner, who may be serving a 
very lengthy sentence or a life sentence.
    So we are talking about well over a thousand cases a year. 
Now--and this is over a course of 15 years. This Monga case is 
one case and I have said there was an oversight on my part in 
not focusing on my personal practice when the issue came before 
me. And when the recusal issue was brought to my attention, I 
did everything that I could to make sure that nobody could come 
away from this with the impression that Ms. Maharaj got 
anything other than an absolutely fair appeal.
    But I have tried to explain the whole thing. I have not 
given conflicting answers, but I have been asked a number of 
different questions and there are a number of steps that were 
involved in what took place. The fact that it was a pro se case 
doesn't--I mentioned that not because pro se cases are any less 
important than any other category of cases. They are very 
important, but it is the fact that our court uses a different 
system for pro se cases. We don't have these clearance sheets, 
and that is when I have typically focused on the issue of 
recusal.
    Senator Kennedy. Well, I thank you, Judge. I think if we 
had in the beginning--we all make mistakes and I have certainly 
made more than my share. But if we had a statement on this, I 
think we could have cleared this all up in the very beginning 
if it was just said it was a mistake, it wasn't on the list, it 
should have been on the list, as we are saying now. We would 
never have had to get all this or go through this.
    But we have had a series of explanations--the light not 
going off when I looked over the Vanguard case, the computer 
glitches, the changes of the computers, I wasn't told by my 
clerks. We had all of those statements, and so this was what 
troubled many of us on the Committee about getting straight 
answers on an issue which is of great importance.
    Mr. Chairman, I will use the remainder of my time with a 
brief comment. I want to thank our Chairman for the fair and 
dignified way that he has conducted the hearing. I thank our 
ranking member, Senator Leahy, for his usual courtesies, as 
well. And I thank Judge Alito for your willingness to serve, 
and thanks to your family for being here and for the support 
they have given throughout these hearings.
    These stakes are very high, and that was reflected in the 
variety of questions posed over the past 3 days. We started 
these hearings seeking answers. We have come with even more 
questions about Judge Alito's commitment to fairness and 
equality for all.
    Unitary Executive: We discussed Judge Alito's expansive 
views on Presidential authority. He distanced himself from the 
theory of the so-called unitary Executive, one that promotes 
extremely expanded Executive power. He gave the Committee 
platitudes about Supreme Court precedent and the Constitution, 
but his comments before this Committee run away from his 
statements of the past, some as recently as 5 years ago, that 
embrace this very radical, and I believe bizarre theory.
    Professor Stephen Calabresi, one of the originators of the 
unitary Executive theory, says that the impact on this Nation 
is vast and dramatic. It obliterates the independence of 
agencies that protect the public, such as the Consumer Products 
Safety Commission, the Elections Commission, Securities and 
Exchange Commission, and much more.
    It makes no sense to describe the effects of this bizarre 
theory in any other terms. That is how its founders brazenly 
described it. Somehow, Judge Alito expects us to buy his unique 
and lonely portrayal of this radical theory as something less 
than it is.
    On the Concerned Alumni of Princeton, much has been made of 
the wide interest in Judge Alito's interest in this 
organization and its frankly bigoted views. I was pleased that 
Judge Alito distanced himself from its repulsive anti-woman, 
anti-black, anti-disability, anti-gay pronouncements--views 
that were especially pronounced at the time that Judge Alito 
believes he joined.
    But we still do not have a clear answer to why Judge Alito 
joined this reprehensible group in the first place. We still do 
not know why he believed that membership in the group would 
enhance his job application in the Reagan Justice Department. 
We still don't know why he chose this organization among so 
many others organizations that he likely belonged to, but 
somehow can't remember why.
    In Vanguard, some of our Republican colleagues find it 
shocking that we would even question Judge Alito about his 
failure to recuse himself from Vanguard cases. But the real 
shock is that Judge Alito failed to meet his sworn promise to 
this Committee more seriously. He says it was an oversight that 
he corrected 12 years after he made that promise.
    But now we know from his own testimony and records that he 
apparently never put Vanguard on the recusal list, even 
immediately after his promise to this Committee. He has failed 
to give us any plausible explanation. The bottom line is that 
he just didn't think his commitment to the Committee and to the 
U.S. Senate was important enough to honor.
    On the 1985 job application, in my office Judge Alito tried 
to distance himself from the ideological views and legal 
opinions expressed in the 1985 job application to the Reagan 
Justice Department. He brushed it off as just a job 
application. Now, he has tried before the Committee to distance 
himself from the stunning statement that the White House and 
Congress somehow are superior to the Supreme Court, the keeper 
of our liberties.
    He didn't back away one inch from his view that a woman's 
right to make her own reproductive decisions is not protected 
under the Constitution. He didn't back away from his criticism 
of the principle of one person/one vote.
    On the cases he decided, in case after case we see legal 
contortions and inconsistent reasoning to bend over backward to 
help the powerful. He may cite instances to think that he 
helped the little guy, but the record is clear that the average 
person has a hard time getting a fair shake in Judge Alito's 
courtroom.
    We are not expecting judges to produce particular results 
in their decisions, but we do expect fairness for understanding 
the real-world impact of their decisions. Frankly, it would be 
more comforting if Judge Alito gave individuals the same 
benefit of the doubt in his courtroom that he is asking from 
this Committee on Vanguard, CAP, the unitary Executive, and 
women's privacy.
    Now, the debate over the nomination continues. In the end, 
this debate really is about the path of progress and the kind 
of America we hope to become. America is noblest when it is 
just to all of its citizens in equal measure. America is freest 
when the rights and liberties of all are respected. America is 
strongest when all can share fairly in its prosperity. And we 
need a Court that will hold us true to these guiding principles 
today and into the future.
    Thank you very much, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Hatch has stated his wish to reclaim at this point 
some of his reserved time.
    Senator Hatch.
    Senator Hatch. I don't intend to be very long, but I really 
believe that bringing up Vanguard or the Princeton matter goes 
beyond the pale at this point in this hearing, and let me just 
make this case.
    Some of your critics, Judge, have focused a lot of 
attention on the actions over the Vanguard matter, and I think 
most people who think, think this is really a case of much ado 
about nothing. Certainly, no law required you to recuse 
yourself in that case. As a matter, the law, helped put 
together by one of the leading Democrat ethicists and 
professors of law, reads as follows: ``financial interest means 
ownership of a legal or equitable interest, however small, or a 
relationship as director, adviser or other active participant 
in the affairs of a party, except that ownership in a mutual or 
common investment fund that holds securities is not a 
`financial interest' in such securities unless the judge 
participates in the management of the fund.''
    Now, you did not participate in the management of the fund, 
right?
    Judge Alito. No, I certainly did not.
    Senator Hatch. OK. That is what the law says. So what is 
this big case that is being made? It must be that since you 
signed, among dozens of pages, the Committee form that says in 
the initial service you agreed to recuse yourself in the 
Vanguard matter, and then you made a mistake later, 12 years 
later, which you rectified--in other words, you lived up to 
your word in every sense of that term, whether or not you 
considered the initial service or not.
    But anybody who looks at it would have to say, my gosh, 
that doesn't mean 12 years from now. But you even ignored that 
and said I recognize that I made a mistake. I recused myself 
even when I didn't have to recuse myself and did everything I 
could to live up to my word, which you did. In other words, you 
lived up to your word.
    That is a fair interpretation, isn't it?
    Judge Alito. It is, Senator. I said in the--even if you 
read the answer as setting out a promise that would exist--that 
would be binding on me for the entire term of my judicial 
service, I did disqualify myself in the only Vanguard case that 
ever came before me.
    Senator Hatch. And so to imply somehow or other that you 
were dishonest because you lived up to your word in the end, I 
think is a little bit beyond the pale.
    The ABA reviewed this matter and found that you have an 
excellent record for integrity. You earned for the second time 
the highest American Bar Association rating of well qualified.
    Now, I put in the record yesterday letters from several 
ethics professors who have examined this issue and found 
nothing improper. They agree that you lived up to your word and 
you didn't have to, nor will you have to in the future. That is 
what that law says in 28 U.S. Code Section 455(d)(4)(i). That 
is what it says.
    Now, I might add that included a letter from Professor 
Geoffrey Hazard. Back when Justice Breyer was up for 
confirmation and questions were raised about the propriety of 
him hearing a case in which some argued falsely, I think, that 
he had a financial interest, my friend from Massachusetts, 
Senator Kennedy, favorably cited a letter from Professor Hazard 
that was favorable to Justice Breyer. And by the way, I am not 
going to judge the two cases, but it was every bit as much a 
case as this weak thing that has been brought against you.
    Now, you know, what is going on here is nothing but an 
attempt to make a big deal about nothing, a small thing, and I 
think it is being done with a bit of old bait-and-switch, if 
you ask my opinion. I might add that when Judge Breyer--what 
happened there in the case of Breyer is I reviewed, I 
investigated it, and when the facts showed that he did no 
wrong, as they show you have done no wrong, I came out of the 
blocks and defended him. And I am glad I did because he, like 
you, is an honest man. Neither Justice Breyer nor you have gone 
into public service to make money. That is pretty apparent.
    Now, to have this like you have done something wrong 
because you made a mistake and then you rectified it--my gosh, 
how many times do we have to beat that old, dead horse?
    With regard to other thing, I have my own opinion as to why 
that is repeatedly brought up, when you have adequately 
explained that you didn't remember much about it, or anything 
at all. Now, we find that the Rusher memoranda contained no 
reference to you. He never heard of you before now. And it 
makes you wonder, why are they bringing that up? Well, I have 
got my opinions on that and I think my opinions are right.
    The fact of the matter is you have been straightforward 
here. You have honestly answered the questions. You have 
answered more questions than almost any Supreme Court nominee 
in my 29 years in the Senate and I don't think you have been 
fairly treated. And it makes everybody wonder, why would 
anybody want to do these jobs?
    I know law review graduates who make more than the Chief 
Justice this year, new graduates from law school. So it is 
apparent you are going into this because you love your country, 
you want to serve it. And you have done it well for 15 years, 
and anybody who knows you knows that. And I know you. So I 
think it is just wrong to keep bringing these phony issues up. 
And you have to ask, well, why are they doing it because they 
are so phony?
    That is all I care to say. I will reserve the balance of my 
time.
    Chairman Specter. Thank you, Senator Hatch. Your 18 minutes 
and 9 seconds will be reserved.
    Senator Hatch. Thank you.
    Chairman Specter. Senator Biden has asked for 20 minutes. 
We are going to be a little more flexible with this final round 
because I see light at the end of the tunnel, quite frankly. I 
see our conclusion of these hearings probably not tonight, but 
tomorrow, not too late. We have started all the sessions 
exactly on time and we have held to the time limits up until 
now, which I think we have to do if we want to do if we want 
ahead. If you once start to slip on when you start or the 
timing, it just gets out of hand, but at this juncture on a 
final round we have a little more flexibility. I see the light 
at the end of the tunnel.
    Senator Biden, you are recognized for up to 20 minutes, as 
you have requested, and if you go a little more, my gavel will 
stay put.
    Senator Biden. Thank you, Mr. Chairman. I will try not to.
    Judge, I heard the Chairman. I happened to be doing 
something on Darfur and I was in the conference room and I 
heard the Chairman say that--which I agree, he and I have 
talked about this--nominees tend to answer as many questions as 
they think they have to in order to get confirmed. I would say 
that that has been the case with all nominees basically since 
Judge Bork.
    I would also add another, I think, truism that has 
developed is they tend to answer controversial questions in 
direct proportion to how much they think the public is likely 
to agree with them. It all goes to kind of a central point 
here, is what is the public entitled to know about what you 
think, or what anyone thinks, before they go on the Court. I 
realize there is this dynamic tension between your independence 
as a nominee, would you be an independent Justice, and 
answering questions.
    But having said that, let me go to an area that I hope you 
will engage me in and it goes to Executive power. I have had 
the dubious distinction because of my role in the Judiciary 
Committee and on the Foreign Relations Committee in the last 
three or four times forces have been used by a President to be 
the guy in charge of, at least on my side of the aisle, 
drafting or negotiating the drafting of the authority to use 
force, whether it was President Clinton, before that, President 
Bush, and even before that, the discussion back on Lebanon with 
President Reagan, et cetera. So it is something I have dealt 
with a lot. It doesn't mean I am right about it, but I have 
thought a lot about it.
    Now, there is a school of thought that is emerging within 
the administration that is making not illegitimate an 
intellectually thought out claim that the power of the 
Executive in times of war exceed that of what I would argue a 
majority of the constitutional scholarship has suggested. The 
fellow, who is a very bright guy, who is referred to as the 
architect of the President's memorandum on the ability of 
Presidents to conduct military operations against terrorists 
and nations supporting them is Professor Yoo. He has written a 
book called, ``The Power of War and Peace,'' and he makes some 
claims that are relatively new among the constitutional 
scholars in his book and he urges, and he had urged when he was 
at the administration, the President had these authorities.
    For example, he says that the framing generation well 
understood that declarations of war were obsolete. He goes on 
to say, given this context, it is clear that Congress's power 
to declare war does not constrain a President's independent and 
plenary right and constitutional authority over the use of 
force. And he goes on and he argues, as you well know this 
argument, I mean, not from your court, just as an informed, 
intelligent man, there is a great debate now of whether the 
administration's internal position is correct, and that is the 
President has the authority to go to war absent congressional 
authorization. It was a claim made by Bush I and then dropped. 
Bush I dropped that the only reason the ``declare war'' 
provision is in the Constitution is to give the President the 
authority to go to war if the President didn't want to. That 
was the claim made. A similar claim is made here.
    So I want to ask you a question. Do you think the President 
has the authority to invade Iran tomorrow without getting 
permission from the people, from the United States Congress, 
absent him being able to show there is an immediate threat to 
our national security?
    Judge Alito. Well, that is a question that I don't think is 
settled by--the whole issue of the extent of the President's 
authority to authorize the use of military force without 
congressional approval has been the subject of a lot of debate. 
The Constitution divides the powers relating to making war 
between the President and the Congress. It gives Congress the 
power to declare war, and obviously, that means something. It 
gives Congress the power of the purse, and obviously military 
operations can't be carried out for any length of time without 
congressional appropriations. Congress is given the power to 
raise and support an army, to maintain a navy, to make the 
rules for governing the land and the naval forces. The 
President has the power of the Commander in Chief. I think 
there has been general agreement, and the Prize cases support 
the authority of the President to take military action on his 
own in the case of an emergency, when there is not time for 
Congress to react--
    Senator Biden. Is that the deciding question, that the 
Congress does not have the time to act?
    Judge Alito. Well, the Prize cases, I think, go--are read 
to go as far as to say that in that limited circumstance, the 
President can act without congressional approval. A lot of 
scholars say that what is important as far as congressional 
approval is not the form, it is not whether it is a formal 
declaration of war or not, it is whether there is authorization 
in one form or another. The War Powers Resolution was obviously 
an expression of the view on the part of Congress--
    Senator Biden. If I can interrupt, Judge, since I am not 
going to have much time, the War Powers Resolution is a 
legislative Act. I don't want to get into that. I am talking 
about the war clause. The administration argues and Yoo argues 
that, quote, ``I do not think the President is constitutionally 
required to get legislative authorization for launching 
military hostilities.'' That is a pretty central question. That 
means the President, if that interpretation is taken, the 
President could invade--and maybe there is good reason to--
invade Iraq--I mean, invade Syria tomorrow, or invade Iran 
tomorrow without any consultation with the U.S. Congress. That 
is a pretty big deal. Up to now, Fisher and Hencken and most of 
the scholarship here has said, no, no, no, the President's 
authority falls into the zone where he needs it for emergency 
purposes, where he doesn't have time to consult with the 
Congress.
    But you seem to be agreeing with the interpretation of the 
President--Professor Yoo that says, no, the President has the 
authority if he thinks it is necessary to move from a state of 
peace to a state of war without any congressional 
authorization. Am I--
    Judge Alito. I hope I am not giving you that impression, 
Senator--
    Senator Biden. Oh, OK. Maybe you can clarify.
    Judge Alito.--because I didn't mean to. I didn't mean to 
say that. I have not read Professor Yoo's book or anything that 
he or anyone else has written setting out the theory that you 
described. I have been trying to describe what I understand the 
authorities to say in this area.
    Generally, when this issue has come up, or variations of 
this issue have come up in relation to a number of recent 
wars--there were a number of efforts to raise issues relating 
to this in relation to the war in Vietnam. There was an effort 
to raise it in relation to our military operations in the 
former Yugoslavia. In most of those instances, they didn't--
most of those instances were the cases were dismissed by the 
lower courts under the so-called political question doctrine--
    Senator Biden. As you and I know, that is a different 
issue. The political question doctrine is a different issue 
than whether or not you think that--I am asking you as a 
citizen whether you think that, as the administration is 
arguing--for example, it argues that the case is made, and I am 
quoting, that ``the Constitution permits the President to 
violate international law when he is engaged in war.'' It just 
states that, flatly, that is what the memorandum of the Justice 
Department states flatly. The President has that sole 
authority. He argues that the Congress could have that 
authority, as well, just violate international law. He goes on 
to argue, as does the memorandum argue, this is this 
administration's position, so that is why it is relevant. It 
says that the President may use his Commander in Chief and 
Executive power to use military force to protect a nation 
subject only to the congressional appropriations. That means 
that the argument the administration is making is the only 
authority that Congress has is to cut off funds.
    Let us say we didn't want the President to invade Iran. The 
administration argues, we could pass a resolution saying, ``You 
have no authority to invade Iran.'' and the President could say 
and the next day invade Iran. Our only recourse would be to cut 
off appropriations. But as you know, there is no way to cut off 
specific appropriations. You would have to cut off 
appropriations for the entire military, which means it is a 
totally useless tool for the Congress in today's world. You 
can't say, well, I am going to cut off only the money for the 
oil that allows the steaming of the ships to get from the East 
Coast to the Mediterranean Sea and/or to the Persian Gulf.
    So it is really kind of important whether or not you think 
the President does not need the authority of the U.S. Congress 
to wage a war where there is not an imminent threat against the 
United States, and that is my question.
    Judge Alito. And Senator, if I am confirmed and if this 
comes before me, or perhaps it could come before me on the 
court of appeals, the first issue would be the political 
question doctrine that I have described. But if we were to get 
beyond that, what I can tell you is that I don't have--I have 
not studied these authorities and it is not my practice to just 
express an opinion on a constitutional question, including 
particularly one that is as momentous as this. I set out my 
understanding of what the Congress--what the Constitution does 
in allocating powers relating to war between the Executive and 
Congress and what some of the leading authorities have said on 
this question. But beyond that--and I haven't read Professor 
Yoo's book or anything that he has written on this issue--I 
would have to study the question.
    Senator Biden. Thank you. Let me move to something you have 
spoken about, stare decisis. I know it has been raised a number 
of times. That is basically following precedent. As a circuit 
court of appeals judge, in layman's language, what does that 
mean, as a circuit court of appeals judge, what does it mean, 
you are required to adhere to stare decisis?
    Judge Alito. We are required to follow decisions of the 
Supreme Court, to start out with, because it's a superior 
court. We are--when we sit as a panel, it is our practice, and 
I think it's the practice of all the courts of appeals, that 
one panel can't overrule a decision of another panel, so it 
means that when we sit en banc, it is a doctrine that counsels 
adherence to prior precedent.
    Senator Biden. But you are allowed, like you did in ACLU v. 
Schundler, you concluded, which I think you had a right to do, 
that the precedent of your circuit was incorrect and you ruled 
the other way. I mean, I think you have the right to do that--
    Judge Alito. We can't do that at the panel level. We can't 
say a prior panel decision is incorrect.
    Senator Biden. But you can when you sit en banc--
    Judge Alito. Oh, when we sit en banc--
    Senator Biden.--when all the justices are there.
    Judge Alito. That's correct.
    Senator Biden. OK. Now, how about when a Supreme Court 
Justice, a Supreme Court Justice is not required, is he or she, 
to follow the precedent of the Supreme Court? Stare decisis 
doesn't apply there, does it? It may be practice, but as a 
practical matter, most scholars say you are required as a 
Supreme Court Justice to adhere to precedent, is it?
    Judge Alito. Well, stare decisis certainly applies. Stare 
decisis takes different forms. There is what some people call 
horizontal stare decisis, which means a lower court has to 
follow the higher court--I am sorry, vertical stare decisis. 
And then are various forms of horizontal stare decisis, which 
means a court either must or should follow its own prior 
precedents. And on the Supreme Court, of course, when we are 
talking about whether the Supreme Court is going to follow a 
prior Supreme Court precedent, that is horizontal. There, it 
isn't an absolute requirement to follow a prior precedent--
    Senator Biden. It is not an absolute--
    Judge Alito. It is not an absolute requirement, but it is 
the presumption that the Court will follow its prior 
precedents--
    Senator Biden. No, I understand that, but no one would 
argue that if you or any other Justice clearly broke from the 
precedent of a Supreme Court decision, that you are in any way 
violating your ethical responsibility as a judge. You are 
entitled to do that, not that you would, but you are entitled 
to do that and no one would question that as a matter of right, 
is that not correct?
    Judge Alito. Well, I think people would question it if you 
disregarded the factors that go into the stare decisis 
analysis. If you said, I don't believe in--you know, I am not 
absolutely required to follow prior Supreme Court precedent and 
I regard every question as a completely open question--
    Senator Biden. Well, I doubt--with all due respect, the way 
it would likely take the form is a Justice would say, ``I 
disagree with the line of cases that say that.'' you know, ``a 
President needs congressional authority.'' or that a--whatever 
the line of cases are. They are not likely to say, ``I 
disregard stare decisis.'' It is like what Scalia said in the 
abortion issue. He said, we should just look at this head-on. 
Roe v. Wade is wrongly decided. We should just say so. And he 
is entitled to do that, and if he had a majority--I am not 
suggesting what you would do on that--he is entitled to do that 
and that wouldn't be a violation of any written or unwritten 
code that relates to a Supreme Court Justice's conduct, would 
it?
    Judge Alito. Different Justices and different judges have 
different views about stare decisis, but my view is that you 
need a special justification for overruling a prior precedent 
and that reliance and reaffirmation are among the factors that 
are important. But I have also said it is not an inexorable 
command. In the area of constitutional law, there has to be the 
ability to revisit a case like Plessy v. Ferguson. I don't 
think anybody would want a system of stare decisis that made 
that impossible.
    Senator Biden. My time is almost gone. I have a few minutes 
left. I would like to try to get quickly to another area here, 
if I may, that you have been questioned on, this whole notion 
of unitary Executive and the questions referencing Morrison and 
the dissent of Scalia, et cetera.
    As I reach and teach the dissent of Scalia, he--and I won't 
take the time, in the interest of time, to read his exact 
language--he has a very scathing and intellectually 
justifiable, many would argue, criticism of the test employed 
by the majority in that case as to determine whether separation 
of powers has been breached. He argues there are very bright 
lines, that there can be no sharing of any of the power. If it 
is an Executive power, it is an Executive power and it is 
Executive power. He would argue that the alphabet agencies, the 
FDA, the FCC, the EPA, they are really not constitutionally 
permissible because the FDA makes a legislative judgment, it 
makes a judicial judgment, and it imposes fines and penalties, 
so therefore it does all three things and is sort of the 
bastard child.
    But the majority of the Justices say that as long as the 
power one branch is using does not unduly trench upon the power 
of the other branch, or it does not substantially affect its 
ability to carry out its powers, then that is permissible. 
Which school of thought do you fall into?
    Judge Alito. Different issues are presented in different 
factual situations--
    Senator Biden. That is why I didn't give you a specific 
issue.
    Judge Alito. Well, I think you need a specific issue in 
order to answer it. For example--
    Senator Biden. OK, the FDA. Is it constitutional, the Food 
and Drug Administration?
    Judge Alito. I don't know that there are--I don't know 
whether there are statutory restrictions on the removal of the 
FDA Commissioner.
    Senator Biden. No, but there are. The FDA does exercise 
judicial power. It makes judgments. You, Drug Company A, 
violated the law--
    Judge Alito. And I don't know any constitutional objection 
to that.
    Senator Biden. Well, Scalia.
    Judge Alito. I don't know that he would have a 
constitutional objection to that. My understanding is that he 
would not have a constitutional objection to their doing that, 
but I could be mistaken, and I wouldn't want to prejudge any 
constitutional question that might be presented to me. But I am 
not aware of a constitutional--if there isn't any limitation on 
removal, then there obviously isn't a removal issue there. As 
to the agencies where there are restrictions on the removal of 
commissioners who are appointed for a term, that issue was 
dealt with within Humphrey's Executor and Wiener and in 
Morrison, and Morrison was eight-to-one and the other cases 
would be sort of a fortior from Morrison.
    Senator Biden. My time is up, and hopefully, someone will 
pursue this unitary Executive issue about private suits, 
because I think what you explained was a little inconsistent, 
or I don't understand it, but I will let someone else do that. 
Thank you very much.
    Chairman Specter. Thank you very much, Senator Biden.
    Senator Grassley has asked that his time be reserved. 
Senator Grassley has other duties which he had to attend to. He 
was here earlier and will be back. He is also Chairman of the 
Finance Committee.
    Just a word. When Senators come and go, everybody has many 
committees and many constituents and many visitors and many 
callers. So when they are not here, you can conclude they are 
otherwise engaged, and Senator Grassley is now. But his time is 
reserved.
    Senator Kohl has asked for 20 minutes. Senator Kohl, we 
will set the clock at 20 minutes for you, and as I said 
earlier, we have some flexibility here.
    Senator Kohl. I thank you very much, Mr. Chairman.
    Judge Alito, elected officials make decisions on issues 
every day as we try to best represent the people of our States. 
And if our constituents do not think that the choices that we 
make reflect their opinions, then every few years they have an 
opportunity to vote for someone else.
    As you know, that is not the case with the courts. Once 
confirmed, Federal judges have lifetime tenure and are 
virtually unaccountable. And that lifetime tenure can result in 
a judge or in a court that is removed from the thoughts and 
opinions of most Americans. As public opinion changes on an 
issue, the court may cease to reflect the views of the country.
    If the courts take positions contrary to what most 
Americans think about an issue or decide a case, a very 
important case, in a way that is clearly out of the mainstream 
of American thought, what can be done about it? And do you 
think that the courts need to consider public opinion when 
deciding cases?
    Judge Alito. I think that the courts were structured the 
way they are so that they would not decide their cases based on 
public opinion. If the Framers had wanted the Federal courts to 
follow public opinion, then they would have made Federal judges 
elected officials, as they are in--as State judges are in many 
States. They gave them lifetime tenure because they thought 
there was a critical difference between deciding cases under 
the Constitution and the laws and responding to public opinion.
    Now, they gave the courts limited authority because they 
wanted most of the decisions that affect people's daily lives 
to be made by the branches of Government that are directly 
responsible to the people, so that the people can control their 
own destiny. The Framers' theory was that sovereignty lay with 
the people and the Government was legitimate only insofar as it 
responded to the people. And that's why Congress is structured 
the way it is; that's why the Presidency is structured the way 
it is. But the courts were viewed--courts are not a democratic 
institution, and they were structured the way they are because 
they saw a difference between the judicial function and the 
other functions that are performed by the branches of the 
Federal Government.
    Senator Kohl. Well, and yet the courts, particularly the 
Rehnquist Court has struck down more laws than any court in 
recent memory. In response to your comment about the 
legislatures as being involved in the daily lives of people, 
and the rate that they have been striking down laws during the 
Rehnquist Court was 6 times faster than during the first 200 
years of our Republic. So how do we deal with the fact that 
while the legislature in your opinion is supposed to represent 
the daily lives of people, the courts, particularly the Supreme 
Court in recent years has been striking down the laws of the 
legislature more often than ever before?
    Judge Alito. Acts of Congress are presumptively 
constitutional, and I don't think that's just--that saying that 
is just words. I think that means something. Members of 
Congress take an oath to support the Constitution, and I think 
that the presumption of constitutionality means a lot. And I 
think that judgments that are reached by the legislative branch 
in the form of findings of fact, for example, are entitled to 
great respect because of the structure of our Government, the 
fact that the basic policy decisions are supposed to be made by 
the legislative branch and carried out by the executive branch, 
and also for the practical reason or the functional reason that 
Congress is in a better position to evaluate conditions in our 
country and conditions in our society and to make findings and 
to determine what's appropriate to deal with the social and 
economic problems that we face.
    So I would certainly approach the question of determining 
whether an Act of Congress is constitutional with a heavy 
presumption in favor of the constitutionality of what Congress 
has done.
    Now, ultimately Marbury v. Madison decided the question 
that when a case or controversy comes before the Supreme Court 
and the constitutionality of an Act of Congress is challenged, 
it is the duty of the Court to decide the question. Unless we 
were going to back to 1819, then that's the practice that the 
Federal courts have to follow. But they should always do that 
with an appreciation of their limited role and the role that 
the legislature is supposed to play.
    Senator Kohl. All right. Well, as a followup to that, would 
you comment on term limits for Federal judges or age limits for 
Federal judges? As you know, if a judge so wishes, he or she 
can serve forever. Do you think that is a good thing in our 
society? Should judges be term-limited? Should judges at least 
be age-limited? Or should they serve just as long as they wish?
    Judge Alito. Well, those are issues that are decided by the 
Constitution. The Framers said that Federal judges have life 
tenure, so without amending the Constitution, I don't think you 
could have judges serve for a term of years or impose an age 
limitation on Federal judges?
    Senator Kohl. Well, what is your opinion?
    Judge Alito. I'm not really sure. I understand the 
arguments in favor of doing both of those things, and State 
courts do that, and although I said yesterday I didn't think we 
should look to foreign law in interpreting our Constitution, I 
don't see a problem in looking to the practices of foreign 
countries in the way they organize their constitutional courts. 
And I believe that many of them do have term limitations on the 
length of service of a member of the highest court and other 
members of the judiciary.
    So there are arguments on both sides of the question. If 
you had a short term of years, you would have a judiciary that 
was like an elected judiciary, and you would have the 
advantages and the disadvantages of that kind of structure. But 
there are arguments on both sides of the question, and it is 
for other people to decide, not for a member of the judiciary.
    Senator Kohl. Right. We are asking you--you know, I 
appreciate that and I appreciate your thoughtfulness, but, 
again, this is the only time--today may be the last time that 
we ever have a chance as a Nation to talk to you. So you have 
thought on it. I mean, I can't believe you don't have a 
thought. You know, we are not going to amend the Constitution 
tomorrow based on your thought that you express today. But what 
is your thought? Do you think it is a good thing for judges to 
serve unaccountably forever, with no age limits, no term limit? 
Or do you think it might be the best thing for our society, for 
judges after a reasonably long period of time, if you so wish, 
or at a certain age, to phase themselves out?
    Judge Alito. If I had been a delegate to the Constitutional 
Convention in Philadelphia in 1787--which is a little hard for 
me to imagine, but if I had been there, and knowing the way 
things work out, I guess I would narrow the range of 
possibilities down to--the range of options that I would 
consider down to either life tenure or a long term of years so 
that the judiciary would be insulated from being swayed by 
popular opinion during a particular period as to the 
constitutional questions that come before them, and as between 
those I'm not sure which I would choose.
    If the judiciary is going to exercise the power of judicial 
review in enforcing constitutional rights, then I would think 
that one of those two options would be the best. But I wasn't 
in Philadelphia in 1787, so I had no say on that question.
    Senator Kohl. Judge, at the end of its term last year, in a 
5-4 decision the Supreme Court ruled in Kelo v. City of New 
London that it was constitutional for local government to seize 
private property for private economic development. Many people 
are alarmed about the consequences of this ruling because, in 
the words of Justice O'Connor, under the logic of the Kelo 
case, ``nothing is to prevent the State from replacing any 
Motel 6 with a Ritz Carlton, any home with a shopping mall, or 
any farm with a factory.''
    So what is your view of the Kelo decision, Judge Alito?
    Judge Alito. Well, what I can say is that it's a precedent 
of the Court, and it built on the Midkiff decision which had 
been handed down a number of years earlier. I know that it 
touches some very sensitive nerves. When someone's home is 
being taken away using the power of eminent domain, that is a 
blow to a lot of people. Even if they're going to get 
compensated at fair market value for their home, the home often 
means more to people than just dollars and cents. It's a place 
that often involves a lot of emotion. They have emotional 
attachments to it. They've lived in it a long time. They're 
familiar with the neighborhood. They want to be with the 
neighbors. They want to stay in the same area. They may have 
emotional attachments to things in the home.
    So it is a tremendous blow, and I suppose that when--I 
would imagine that when someone's home is being taken away, a 
modest home, for the purpose of building a very expensive 
commercial structure, that is particularly galling. But Kelo 
was a decision of the Court, and I've discussed my view about 
stare decisis, and should that issue come up again, then 
obviously the stare decisis factors would have to be, you know, 
considered as the first--the stare decisis question would have 
to be the first question addressed, and the factors that I've 
discussed would have to be weighed.
    Senator Kohl. Well, your comment is on the one hand and on 
the other hand, and I do appreciate that. But I would ask you 
if you would venture an opinion more precisely. Specifically, 
do you agree in general with Justice O'Connor's dissent?
    Judge Alito. Well, Senator, I don't think I can answer that 
beyond what I have said. If the issue were to come before me if 
I'm confirmed, then I would first have to consider whether 
there's any reason for not following Kelo, which is a precedent 
of the Supreme Court and grew out of the earlier precedent that 
I discussed, that I mentioned.
    Now, I'm not suggesting which way I would decide that 
question of stare decisis, but that is the way our legal system 
works, that decisions are presumptively to be followed, and I 
would have to address that question. And if I got beyond it, I 
would have to go through the whole judicial process that is set 
up so that questions of constitutional law and other questions 
are decided in the best way, and reading the briefs, listening 
to the arguments, participating in the conference, and only 
that reaching a decision on the merits of it.
    Senator Kohl. All right. As a followup, Judge Alito, if 
confirmed, you will be replacing Justice O'Connor, who is a 
Justice who will be remembered by history as one of the most 
influential justices of the 20th century. She is also, as you 
know, a much beloved person. How would you be different from 
her, Judge Alito? How do you think Justice O'Connor ought to be 
remembered, Judge Alito? And how are you like or not like 
Justice O'Connor as a judge?
    Judge Alito. She certainly will be remembered for many 
reasons, and I think with great admiration by--I think she is 
held in great admiration by the American people at this time, 
and I think that when people look back, they will have great 
admiration for her work. She obviously was a pioneering figure 
and was an inspiration for many people who want to pursue legal 
careers, and other careers.
    She has been a very dedicated Justice and has been known 
for her meticulous devotion to the facts of the particular 
cases that come before her and her belief that each case needs 
to be decided on its complex facts, and that's something that 
is an important part of our judicial process.
    I would try to emulate her dedication and her integrity, 
and her dedication to the case-by-case process of adjudication, 
which is what I think the Supreme Court and the other Federal 
courts should carry out. I think that's one--that is a central 
feature of best traditions of our judicial system.
    Senator Kohl. She was seen as someone who in a general way 
was at the center of the Court. You never had an idea whether 
she might look a little left or a little right, but she was 
seen as the center of the Court, which, as you know, is central 
to your nomination. And you have said you have great respect 
for her. You have said you respect her as a Justice who did 
look at the facts, made judgments based on those facts, which I 
think is what you would say about yourself, an umpire calling 
balls and strikes pretty much as they see them.
    Do you see yourself as a Justice, if you are confirmed, who 
in many ways will fill the same role as Justice O'Connor has 
filled?
    Judge Alito. I think that anybody who is appointed to any 
judicial position has to be himself or herself, and I don't 
think that anybody can try to replace the person, can duplicate 
the approach of the person that that person is replacing. We 
all have to proceed in accordance with our own abilities and 
our own outlook, so I don't think that--I think we all have to 
be who we are. But I think we can emulate the great jurists of 
the past, which is not to say that we can equal them, but we 
can look at what they've done and see the things that they've 
done very well, try to approach what they've done in various 
areas. And I think that I certainly would try to emulate 
Justice O'Connor in the ways that I've described. I wouldn't 
flatter myself to say that I could equal her in any of those 
ways, but I would certainly try to emulate the way in which she 
has gone about the conscientious and dedicated and dignified 
way in which she's gone about the performance of her judicial 
duties.
    Senator Kohl. You may have answered this question already, 
but as I said, she was at the center of the Court, at least 
viewed as a person at the center of the Court, and served a 
very useful purpose in that respect. Is it, in your opinion, 
like that you might turn out in a general way to be that kind 
of a Justice?
    Judge Alito. I can only answer that really by saying what I 
think I've said before, which is that I'd be the same sort of 
Justice on the Supreme Court that I've been a judge--as I've 
been a judge on the court of appeals. I am my own person with 
whatever abilities I have and whatever limitations I have, and 
I think if anybody looks at my record on the court of appeals, 
they can get an idea about the way I approach the work of being 
a judge, and that is what I would try to do on the Supreme 
Court. And I don't think I can do anything other than that, and 
that's what I think I should do, and that's what I would do if 
I am confirmed.
    Senator Kohl. Judge Alito, I thank you very much.
    Mr. Chairman, I thank you very much.
    Chairman Specter. Thank you, Senator Kohl.
    We will take our break now and resume at 10 minutes after 
11.
    [Recess 10:55 a.m. to 11:10 a.m.]
    Chairman Specter. Welcome back, Judge Alito. A thought just 
crossed my mind that this is the only time when you walk into a 
room that everybody does not stand up.
    Judge Alito. That happens to me all the time at home, 
Senator.
    [Laughter.]
    Chairman Specter. I am not saying when you come home, Judge 
Alito. The reception for a judge or a Senator or even the Chief 
Justice is very different at home than when he walks into a 
room and a bailiff shouts ``All rise.'' Just crossed my mind 
that we were not all standing up. As Chief Justice Roberts 
said, this is a discussion among equals, that is, until you are 
confirmed, if confirmed.
    Senator Kyl?
    Senator Kyl. Mr. Chairman, I will reserve my questions for 
now, thank you.
    Chairman Specter. Senator Kyl is reserving his time. 
Senator Feinstein is about the join us, coming in, so we will 
await her arrival, which should be imminently.
    [Pause.]
    Chairman Specter. I think Senator Feinstein is going to be 
a few moments more, so let us turn to Senator Feingold.
    Senator Feingold. Mr. Chairman, if that is your wish. I 
certainly defer to Senator Feinstein if she wants to reclaim 
her time when she comes, but I will get started if you want.
    Chairman Specter. Let us wait another minute or two for 
her. She is not in the back room and she is not in the 
corridor, but let us wait another minute or two for her.
    [Pause.]
    Chairman Specter. Senator Feinstein, you have made another 
dramatic entrance. We were all assembled for the Committee 
action on Chief Justice Roberts when you were on the floor from 
your position on the Appropriations Committee, managing a bill 
and 17 of us were there.
    Senator Feinstein. Not quite, but I thank you for the 
excuse.
    Chairman Specter. And you walked in with drama as today. 
You have asked for up to 10 minutes, Senator Feinstein. We will 
set the clock at 10 minutes. I have indicated we have some 
flexibility. We see the light at the end of the tunnel.
    Senator Feinstein. I may take 20 if that is all right with 
you, Mr. Chairman.
    Chairman Specter. We will reset the clock at 20, Senator 
Feinstein.
    Senator Feinstein. Thank you.
    Good morning, Judge Alito.
    Judge Alito. Good morning.
    Senator Feinstein. I want to begin a conversation, 
hopefully. Let me try to set the precedent for it because 
others have discussed this as well. You said, and I think 
everybody agrees, that nobody is above the law, and nobody is 
beneath the law, and you made comment about the balance of 
powers, that all branches of Government are equal. There are 
three of us on this Committee, Senator Hatch, Senator DeWine 
and myself, that also serve on the Intelligence Committee, and 
Intelligence has the duty to provide the oversight for the 15 
different agencies that relate to America's intelligence 
activities. So this question of Presidential authority at a 
time of crisis, not necessarily a full declaration of war, 
state to state, but a time of crisis becomes very prescient 
right now. And I wanted to talk to you a little bit about the 
President's plenary authorities as Commander in Chief, plenary 
meaning unrestrained and unrestrainable, his plenary 
authorities to defend the United States, and whether it is true 
that no law passed by Congress binds him if he determines that 
it interferes with his Commander in Chief role.
    Now, we have explicit powers, as you have said, under the 
Constitution, and in section 8 we have the explicit power to 
raise and support armies, to provide and maintain a Navy, to 
make rules for the Government, and regulation of the land and 
naval forces, and the National Security Administration, known 
as the NSA, is within the Department of Defense. It is headed 
by a general. So it would seem to me that there is an explicit 
power for the Congress to be able to pass the rules that govern 
the procedures of the National Security Administration.
    Now, again to the Jackson test. When the President's power 
is the least is when the Congress has legislated, and this is 
where the Foreign Intelligence Surveillance Act, known as FISA, 
comes in. FISA is very explicit, and let me read a part of it 
to you. ``Procedures in this chapter and the Foreign 
Intelligence Surveillance Act, known as FISA, shall be the 
exclusive means by which electronic surveillance, as defined in 
section 101 of such Act, and the interception of domestic wire 
and oral communications may be conducted.'' It does provide--
you used the word ``general.'' It does provide two exigent 
circumstances: one, following a declaration of war, the 
President has 15 days in which he can wiretap; the second 
exigent circumstance is an emergency provision that if he needs 
emergency authority, the Attorney General can authorize it, 
provided they go to the FISA Court within 72 hours.
    I was concerned--there are two questions in this one 
statement. The first question is: if we have explicit authority 
under the Constitution to pass a law, and we pass that law, is 
the President bound by that law, or does his plenary authority 
supersede that law?
    Judge Alito. The President, like everybody else, is bound 
by statutes that are enacted by Congress unless the statutes 
are unconstitutional, because the Constitution takes precedence 
over a statute. But in general, of course, the President and 
everybody else, is bound by a statute. There's no question 
about that whatsoever. And the President is explicitly given 
the obligation, under Article II, to take care that the laws 
are faithfully executed. So he is given the responsibility of 
making sure that the laws are carried out.
    Senator Feinstein. Let me press you on unconstitutional, 
and a very few of us on this Committee are not lawyers. I am 
one of them, so let me just speak in common everyday terms. 
There are two resolutions that were passed, one authorizing the 
use of military force involving Iraq, and one involving use of 
terrorism. Never was there any indication that domestic 
wiretapping of Americans was involved in anything that was 
done. As a matter of fact, the former minority leader just 
wrote an Op-Ed piece, in which he said he was approached by the 
administration shortly before the second resolution was passed, 
and asked to add certain words that essentially--added the 
words ``deter and preempt any future acts of terrorism or 
aggression against the United States.'' and he refused to do 
it.
    Mr. Chairman, if I could place this statement in to record. 
Since we are going to be having hearings on what has happened, 
I think this is an appropriate bit of legislative history. I 
would like to place it in the record.
    Chairman Specter. Thank you, Senator Feinstein. It will be 
made a part of the record without objection.
    Senator Feinstein. Thank you.
    So bottom line, two resolutions passed, no consideration by 
the Congress or any member that I know of, no legislative 
history to indicate that we included in these authorizations, 
authorization to wiretap Americans. The question then comes, I 
guess, does the plenary power of the President supersede this?
    Judge Alito. I think there are two questions. Maybe there 
are more than two questions, but there are at least two 
questions. The first question, to my mind, is a question of 
statutory interpretation, what is the scope of the 
authorization of the use of military force? I don't know 
whether that will turn out to be an easy question or whether it 
will turn out to be a difficult question, but it is a question 
of statutory interpretation like any other. Of course, there's 
a great deal at stake, and maybe a lot more at stake than is 
involved in a lot of issues of statutory interpretation. But if 
I were required to decide that, I would approach it in 
essentially the same way I approach any other question of 
statutory interpretation, what does the word of the law--what 
does the law say? Are there terms in there that carry a special 
meaning because of the subject matter that's being dealt with? 
And I think legislative history can be appropriately consulted. 
And I would have to decide that in the context of the whole 
process of deciding legal questions, as I said, like any other 
issue of statutory interpretation.
    Once a decision was reached on the issue of statutory 
interpretation, it might be necessary to go further, depending 
on, I guess, the answer to that question.
    I would also say in connection with this that we have a 
little bit of guidance as to the interpretation of the 
authorization of the use of military force in the Hamdi case, 
where the Court interpreted that enactment, and determined that 
the detention of an individual who was captured on the 
battlefield in Afghanistan fell within the scope of that, and 
they relied there, I think, on customary practices in the 
conduct of warfare in determining what fell within the scope of 
the authorization.
    Senator Feinstein. Let me stop you right here, because 
now--that is right, because detention is a necessary following 
of an authorization of military force. So detention is logical. 
When you have a specific statute that covers all electronic 
surveillance, the question comes, is that statute nullified, 
and does it necessarily follow that the wiretapping of 
Americans without--and I am not saying there is not a reason to 
do this. What I am saying is that we set up a legal procedure 
by which you do it, and we set two exigent circumstances to 
excuse a President from having to do it, therefore, doesn't 
that law prevail?
    Judge Alito. Well, as I said, I think the threshold 
question is interpreting the scope of that, and it might turn 
out to be an open and shut argument, it might turn out to be a 
very complicated argument. I wouldn't presume to issue--to 
voice an opinion on the question here, in particular because I 
haven't studied it in the depth that I would have to study it 
before reaching a judicial decision on the matter. Then 
depending on how that issue was resolved, it might be necessary 
to go on to the constitutional question, and I think you've 
exactly outlined where that would fall under Justice Jackson's 
method of analyzing these questions. This would be in the 
category in which--well, if it was determined that there wasn't 
statutory authorization, then--
    Senator Feinstein. There was.
    Judge Alito. Well, if it was determined that there was--
    Senator Feinstein. No statutory authorization to wiretap, 
right.
    Judge Alito. If it was determined that there was statutory 
authorization, then I don't know what the constitutional 
would--
    Senator Feinstein. But if there was not?
    Judge Alito. There would still potentially be--there might 
be a constitutional issue. Let me stop there. There would be a 
Fourth Amendment issue, obviously. If you went beyond--if you 
determined that there wasn't statutory authorization, then as 
far as whether--then as far as the issue of Presidential power 
is concerned, you would be in Justice Jackson's scheme in the 
category where the President--you would have to determine, if 
this is the argument that's made, whether the President's 
power, inherent powers, the powers given to the President under 
Article II, are sufficient, even taking away congressional 
authorization, the area where the President is asserting a 
power to do something in the face of explicit, an explicit 
congressional determination to the contrary.
    Senator Feinstein. Now, in my lay mind, the way I interpret 
that--and correct me if I am wrong--is that you essentially 
have a conflict, and that it has not been decided whether one 
trumps the other.
    Judge Alito. I think that's close to the point that I was 
trying to make. The way Justice Jackson described it was that 
you have whatever Executive power the President has, minus what 
Congress has taken away by enacting the statute.
    Senator Feinstein. Even though you have a statutory 
prohibition, even a criminal prohibition?
    Judge Alito. Well, I'm not suggesting how the determination 
would come out. I think it's--that it is implicit in the way 
Justice Jackson outlined this that Presidential--well, he said 
it expressly--Presidential power is at its lowest in this 
situation, where the President is claiming the authority to do 
something that Congress has prohibited.
    Senator Feinstein. Enough of that. Let me move on.
    In W.R. Grace v. the EPA, a chemical company released large 
amounts of ammonia into the local aquifer in Lansing, Michigan. 
Under the Safe Drinking Water Act, the EPA ordered the chemical 
company to clean up the discharge to reduce the concentration 
of ammonia to a level that wouldn't threaten the health of the 
community. The chemical company challenged this EPA decision. 
You cast, as I understand it, the decisive vote to overrule the 
EPA, permitting the company to leave more ammonia in the 
aquifer, despite the EPA's determination that this level of 
ammonia would continue to endanger the water supply.
    In her dissent, Judge Mansmann urged deference to the EPA 
in matters of science, noting that, ``The high degree of 
deference we are to accord the EPA is a cornerstone to the 
EPA's power enshrined in the Safe Drinking Water Act to protect 
the public health, the environment and public water supplies 
from the pernicious effects of toxic wastes.''
    Do you agree with the dissent that a reviewing court must 
generally be at its most deferential when reviewing factual 
determinations within an agency's special area of expertise?
    Judge Alito. I do agree with that. I don't think there is 
any question about that.
    Senator Feinstein. Do you believe that where an agency is 
taking action to protect the health of citizens, additional 
deference should be given?
    Judge Alito. I think that deference is owed to the 
expertise of administrative agencies. That is an important part 
of administrative law, and when you are dealing with an agency 
like the EPA, you would defer to their area of expertise. I 
think that is correct.
    Senator Feinstein. Should the EPA be accorded the same 
deference as other governmental agencies?
    Judge Alito. I don't think--I don't see why it should not. 
It is the expert on environmental questions and where the APA--
I am sorry, the EPA--for example, if the EPA issues regulations 
interpreting a statutory provision and it is given broad 
authority under the environmental laws frequently to implement 
choices that are reflected in the legislation, then I think 
that it is entitled to a broad measure of deference under the 
Chevron decision. If it issues rules, then any reasonable 
interpretation of the rules--I am sorry--of the statute is 
entitled to deference from the courts.
    Senator Feinstein. OK. Let me go way back, and I recognize 
that time has gone by and I recognize you were in a different 
position, but these questions are really aimed to point out the 
importance of the Commerce Clause to us.
    In 1986, Congress passed the Truth in Mileage Act to 
prevent odometer fraud. As deputy at the Office of Legal 
Counsel, you recommended that President Reagan veto the bill 
because you believed it violated the principles of federalism. 
In a draft statement for the President, you wrote ``It is the 
States and not the Federal Government that are charged with 
protecting the health, safety and welfare of their citizens.'' 
That is a quote. President Reagan did sign the Truth in Mileage 
Act.
    Does it remain your opinion that it is the States, not the 
Federal Government, that are charged with protecting the 
health, safety and welfare of Americans?
    Judge Alito. Both the Federal Government and the States 
have responsibilities in those areas. Historically, the primary 
responsibility with respect to that, to those concerns, has 
been with the States. But with the expansion of Federal 
regulatory programs, the Federal Government has taken on 
broader and broader responsibilities in those areas and now has 
very substantial responsibilities in all of those areas under 
regulatory schemes that have been in place for a long time and 
I don't believe are being challenged on constitutional grounds 
at this time.
    If I could just say a word about that memo, which I read 
for the first time in 20 years recently, as I--it is a brief 
statement and as I read it, it is based--what it is primarily 
expressing is not an interpretation of the scope of the Federal 
Government's--of Congress's constitutional authority, but a 
recommendation based on the federalism policies of the Reagan 
administration.
    The Reagan administration had a policy of implementing its 
view of federalism concerns through policymaking decisions. In 
other words, its policy was to go further in respecting what it 
viewed as the Federalist system--as our Federal system of 
Government and the Constitution required to go further as a 
policy matter. And as I read that brief statement, that is what 
was being expressed there.
    Senator Feinstein. So if I understand that, quickly, what 
you are saying is this was written as staff in an 
administration to follow a policy. But are you also saying as a 
judge this would not necessarily be a position that you would 
hold in any case?
    Judge Alito. Well, as a judge, I would have no authority 
and certainly would not try to implement any policy ideas about 
federalism. Congress can implement policy ideas about 
federalism. The Garcia case, in fact, is based on the view that 
the primary--and this is what the Supreme Court said there, 
that the primary way in which the federalism concerns that were 
expressed in National League of Cities was to be implemented in 
the future was through policy decisions made by Congress.
    They said the States are represented in Congress through 
the membership in the Senate, and protection of the 
prerogatives of the States should be left to policy decisions 
made by Congress, or decisions made by Congress in implementing 
its view of how the system of federalism should work.
    And an Executive--a President can take a similar approach. 
A President can say although the Constitution allows the 
authority of the Federal Government to go this far, as a policy 
matter I don't want to go along with legislation that goes up 
to the limits of what the Constitution allows; as a policy 
matter, I want to stop short of that. And as I read this memo, 
that is what we were saying there.
    Senator Feinstein. Thank you very much. Thanks, Mr. 
Chairman.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Grassley has stated his interest in reclaiming some 
of his reserved time.
    Senator Grassley.
    Senator Grassley. A small part of it, number one, to make a 
point that I hope would put a lot of my colleagues who have 
raised questions about some theory you might have about this or 
that--whatever political science theories you might have about 
the executive branch of Government, I don't worry about that, 
and I would hope my colleagues wouldn't worry about that 
because you could have a hundred theories and they could be all 
crazy.
    But is it not right that you are a person that is bound by 
the Constitution to only hear cases and controversies that come 
before the Supreme Court? And so, you know, whatever comes 
before you, you are responsible for deciding it within the 
constitutional of case and controversy.
    And, second, it seems to me that you are a person that has 
got the judicial temperament, as you said so many times, that 
you are going to keep your own personal views out of it. And it 
seems to me that you are person that has indicated to us that 
you are going to look at a case within the four corners of the 
law and the facts that apply to that case, and nothing more.
    So any theories you might have about--what was it called, 
unitary Executive or something? What has that got to do with 
your deciding a case?
    Judge Alito. Senator, you are exactly right. If cases 
involving this area of constitutional law come before me, I 
will look to the precedents of the Supreme Court. And that is 
what I think I have been trying to emphasize, and there are 
governing precedents in this area. There is Humphrey's Executor 
and Wiener, and most recently Morrison, which was an eight-to-
one decision.
    Senator Grassley. Then the other thing I would take an 
opportunity to just tell you something and not want any 
response, but that is on the False Claims Act. This Act was 
originally passed in 1862 because Lincoln didn't have enough 
people to prosecute fraud by military people against the 
Government. So he empowered individuals to do that under qui 
tam.
    And then in 1942, I think it was, the law was gutted by 
taking out the qui tam provisions, probably because of World 
War II and the necessity of getting the job of military 
construction done. And then in the 1980s, we found a heck of a 
lot of military fraudulent use of taxpayers' money. We held a 
lot of hearings on that. It came that there wasn't enough being 
done by the Justice Department to take care of it.
    We saw the Justice Department making a lot of global 
settlements; you know, some company that had done a massive 
amount of wrong in many areas and maybe having the Justice 
Department settle one little dispute, but give a global 
settlement so that they would never be prosecuted for anything 
after that. It led us to beefing up the False Claims Act by 
putting the qui tam provisions in it.
    And it was a terrible thing to get through Congress. I 
think 6 months after we voted it out of Committee, we had every 
Senator putting a hold on it, some bequest of somebody in the 
defense industry. And you would take care of that little 
problem and another put a hold on and another one put a hold 
on. Finally, the last person was a friend of mine that had a 
hold on it and I said why did you have a hold on it? Well, some 
of my friends said that is bad for the defense industry.
    And I talked to him about it and he says, you know, you are 
absolutely right, and we got the last hold off and we got it 
passed and we got it signed by the President of the United 
States. And then over the last several years, we have had the 
defense industry going trying to gut it again. Then we had the 
Hospital Association trying to gut it because we were using 
medical care.
    And it has brought $12 billion into the Federal Treasury, 
and I think it has even had the benefit of discouraging a lot 
of activity that would go on normally that save the taxpayers 
money without prosecution. But there are people in the Justice 
Department, professional people in the Justice Department, who 
don't want some citizen looking over their head and doing their 
job for them, when they aren't doing it.
    A district judge in the mid-1980s, or maybe it was the late 
1980s, in, I think, a General Electric case someplace in Ohio, 
when the Justice Department was trying to cut back the award 
that the relator was going to get, said to this Justice 
Department guy, don't you get it? You wouldn't even have a case 
if it wasn't for this whistleblower coming forth to make their 
statement and to make their case.
    And, you know, it grown into quite a thing now. The only 
thing I regret about it is there are a lot of lawyers, tort 
attorneys out there getting rich off of it. But there is also a 
lot coming into the Federal Treasury, and about 15 percent if 
what it would cost the Federal Government anyway to bring in 
this same amount of money if they prosecuted. But they won't 
prosecute it and they don't know about all of it, and you have 
got to rely on the whistleblowers to get the information out 
there.
    And so when you are in your private meetings that you have 
after you get on the Supreme Court and you are talking about 
these things, I hope you will remember that this was meant to 
serve a worthy purpose, is serving a worthy purpose, and I 
would like to have you look at it in a very unbiased way.
    [Laughter.]
    Senator Grassley. I reserve the rest of my time.
    Chairman Specter. Judge Alito, Senator Grassley is going to 
follow that up with a strong letter.
    [Laughter.]
    Senator Grassley. Well, the Chairman remembers we even had 
to subpoena William French Smith one time in this whole 
process.
    Senator Leahy. Chuck, I think we know where you stand on 
this.
    Senator Grassley. OK.
    Chairman Specter. To use a little bit more of my time, 
Senator Grassley did more than subpoena Attorney General 
William French Smith. He started proceedings to hold him in 
contempt, and that was at about a time when Attorney General 
Smith was inviting some members of the Judiciary Committee to 
have lunch. And he was very dour during the entire lunch as far 
as his attitude toward me and I found out why at the end of the 
lunch. He wanted to know why I wanted to hold him in contempt. 
He had insulted Senator Grassley to the nth degree by confusing 
me with him.
    [Laughter.]
    Chairman Specter. Tell your Anita Hill story, Chuck.
    Senator Grassley. Well, just to show you how they get mixed 
up, you know, he asked the questions of Anita Hill and I was 
sitting beside him very quietly, because only two Republicans 
were going to ask questions. And I went back to my constituency 
and everybody said to me, you were awful to Anita Hill, you 
just treated her awful, because they got me mixed up with him.
    Chairman Specter. Wait. I didn't know you were--
    [Laughter.]
    Chairman Specter. I didn't know you were going to tell that 
part of the--
    Senator Grassley. I thought that is the only part we have 
talked about.
    Chairman Specter. Judge, we are just trying to use a little 
time over here to give you just a little respite from the--
    Senator Leahy. Arlen, fortunately none of this is on 
television so nobody knows what we are saying here with these 
stories.
    [Laughter.]
    Chairman Specter. Senator Feingold, you haven't told me how 
much time you would like to have.
    Senator Feingold. I think 25 minutes, with flexibility. 
Maybe I won't have to use it all.
    Chairman Specter. So granted. Set the clock to 25 minutes 
and you are recognized, Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. Good morning, 
Judge. It is nice to talk to you in the morning for once, and 
thank you, Mr. Chairman, for the opportunity to ask a third 
round of questions. I do appreciate the latitude on the time, 
if it is necessary.
    First, Judge, I want to thank you for arranging to have put 
together the list of people who participated in your practice 
sessions. I want to say that I am still somewhat troubled by 
the idea that you were prepared for this hearing by some 
lawyers who are very much involved in promoting the purported 
legal justification for the NSA wiretapping program, and 
obviously this issue of Presidential power is so central to 
this hearing. In fact, my first questions will also be about 
this, as well.
    I note, for example, that one of the people that 
participated in these sessions was Benjamin Powell. He recently 
advised President Bush on intelligence matters and was just 
given a recess appointment as General Counsel to the National 
Intelligence Director. I also see the name of White House 
Counsel Harriet Miers on the list, and she obviously is 
involved in the President's position on this matter.
    So I am just going to continue to think about this issue 
and I hope that you and the Department will, too. I think you 
would agree that at some point in a situation like this, an 
ethical issue could arise.
    Let me go back, though, to what many Senators have asked 
you about, including most recently Senator Feinstein. I want to 
try again to clarify this issue, the constitutional authority 
of the President to violate a criminal statute. You have said 
repeatedly that the President is not above the law, but you 
have also been very careful to qualify this statement by saying 
that the President must always follow the Constitution and laws 
that are consistent with the Constitution, and that statement 
sounds good until you look at it real closely. After all, 
everyone agrees that the President must follow constitutional 
law. The question is whether Presidents can claim inherent 
powers under the Constitution that allow them in certain cases 
to violate a criminal law, and your formulation seems to leave 
open the possibility that the President can assert inherent 
authority to violate the criminal law and still be following, 
to use your words, the Constitution and laws that are 
consistent with the Constitution.
    So I would like to ask you, assuming that you have already 
done phase one, step one, the statutory analysis, in your view, 
just because a law is constitutional as it is written, like a 
murder statute or FISA, that doesn't actually answer the 
question of whether the President can violate it, does it?
    Judge Alito. I don't think I would separate the 
constitutional questions into categories. I think it follows 
from the structure of our Constitution that the Constitution 
trumps the statute. That was the issue in Marbury v. Madison. 
It would be a rare instance in which it would be justifiable 
for the President or any member of the executive branch not to 
abide by a statute passed by Congress. It would be a very 
rare--
    Senator Feingold. But it is possible, based on your answer, 
that a statute that has been determined standing on its own to 
be constitutional could, in theory, run into some conflict with 
an inherent, as you would say, constitutional power of the 
President, which in theory, even under Justice Jackson's test, 
could trump the seemingly constitutional criminal statute, is 
that correct?
    Judge Alito. Well, I'm not sure what standing on its own 
means there. Somebody gave an example in a law review article I 
remember reading of a statute that said that a particular named 
individual was to be immediately taken into custody by Federal 
law enforcement agents and taken immediately to a certain place 
to be executed. Would the President be bound to, under his 
responsibility to take care that the laws are faithfully 
executed, would the President be legally obligated to do that, 
even though it flies in the face of some of the most 
fundamental guarantees in the Constitution, and I think we 
would all say in a situation like that, no, the Constitution 
trumps the statutory enactment.
    Senator Feingold. But it is possible under your construct 
that an inherent constitutional power of the President could, 
under some analysis or in some case, override what people 
believe to be a constitutional criminal statute--
    Judge Alito. Well, I don't want to--I want to be very 
precise on this. What I have said, and I don't think I can go 
further than to say this, is that that situation seems to be 
exactly what is--to fall exactly within that category that 
Justice Jackson outlined, where the President is claiming the 
authority to do something and the thing that he is claiming the 
authority to do is explicitly, has been explicitly disapproved 
by Congress. So his own taxonomy contemplates the possibility 
that says that there is this category and cases can fall in 
this category, and he seems to contemplate the possibility that 
that might be justified.
    But I don't want to even say that there could be such a 
case. I don't know. I would have to be presented with the facts 
of the particular case and consider it in the way I would 
consider any legal question. I don't think I can go beyond 
that.
    Senator Feingold. I understand that has been your position. 
I have heard the repeated references to Justice Jackson's test. 
But all that test says in the end is that the President's power 
is at the lowest ebb at that point, and I understand and 
obviously have enormous regard for Justice Jackson and that 
opinion in particular. But I think in this time it leaves me 
troubled.
    I am concerned that if we are simply going to rely on that 
in the end without getting a better sense of where you might 
come down on these kind of matters, it really goes to the very 
heart of our system of government. And if somehow that--even if 
the President's power is at a very low ebb at that point, I 
think it still leaves open the possibility of enough ambiguity 
and vagueness that could alter the basic balance between the 
Congress and the Presidential power in a way that could affect 
our very system of government.
    Judge Alito. Well, Senator, this is a momentous 
constitutional issue and it is the kind of constitutional issue 
that generally is not resolved--well, let me say this, that it 
is often--it often comes up in a context that is not 
justiciable. But I think it would be irresponsible for me to 
say anything on the substance of the question here, and by not 
saying it, I don't mean to suggest in any way how I would come 
out on the question. I don't mean to suggest that there could 
be a case where it would be justified or not, particularly on 
an issue of this magnitude. I think anybody in my position can 
say no more than this is the framework that the Supreme Court 
precedents have provided for us, and when the issue comes up, 
if it comes up, if it comes before me, if it is justiciable, I 
will analyze it thoroughly, and that's all I can say.
    Senator Feingold. And I respect your constraints in this 
regard, and frankly, this isn't so much about you or your 
appointment. This is about the possibility you have raised that 
this may not be justiciable, which is going to be a very 
serious problem for our system of government. If the U.S. 
Supreme Court cannot help us resolve these issues because of 
justiciability issues, at a time of crisis like this in terms 
of the fight against terrorism, I think it raises one of the 
most important issues in the history of our country's 
constitutional debate. I don't think you disagree with that, 
but it really troubles me that the Supreme Court could possibly 
not help us resolve this.
    Judge Alito. And I don't want to suggest that it is or it's 
not justiciable. We would look to the Baker v. Carr factors, 
and that is something else that would be very irresponsible for 
me to express an opinion on in this forum and I want to make it 
perfectly clear that I'm not doing that.
    Senator Feingold. Do you think it could ever be 
constitutional to admit evidence obtained by torture against an 
individual who is being charged with a crime?
    Judge Alito. Well, the Fifth Amendment prohibits compelled 
self-incrimination and it's long been established that evidence 
that is obtained through torture is inadmissible in our courts. 
That's the governing principle.
    Senator Feingold. So I take that answer to mean it could 
not be constitutional to admit evidence obtained by torture 
against individuals being charged with a crime?
    Judge Alito. In all the contexts that I'm familiar with, 
that would be the answer.
    Senator Feingold. Thank you for that answer. I want to 
followup on one question that Senator Leahy asked this morning 
about the constitutionality of executing an innocent person. 
You said that the Constitution, of course, is designed to 
prevent that. We all agree on that. But let us say that the 
trial was procedurally perfect and there were no legal or 
constitutional errors, but later evidence proves that the 
person convicted was unquestionably innocent. Does that person 
have a constitutional right not to be executed?
    Judge Alito. The person has--would first have to avail 
himself or herself of the procedures that Congress has 
specified for challenging convictions after they've become 
final. If this individual has been convicted and has gone 
through the whole process of direct appeal, either in the State 
system or in the Federal system, then there are procedures. 
States have procedures for collateral attacks and there are 
procedures under Federal statutes for collateral attacks on 
Federal convictions and on State convictions. The person would 
have to go through the procedures that are set out in the 
statute.
    The system is designed to prevent a person from being 
executed if the person is innocent, and actual innocence 
figures very importantly, even in these complex--in sometimes 
complex procedures that have to be followed in these collateral 
attacks. For example, usually, there's this doctrine of 
procedural default, which is not something that ordinary people 
are familiar with, but it means that if a State prisoner is 
challenging a State conviction, the State prisoner has to take 
advantage of the procedures that are available under State law, 
and if the State prisoner doesn't do that--
    Senator Feingold. My question assumes that all that has 
been done and the process went through and there is no legal or 
constitutional or procedural problems, but evidence suddenly 
proves that the person convicted was unquestionably innocent. 
The question is, does that person in that posture have a 
constitutional right not to be executed?
    Judge Alito. Well, then the person would have to, as I 
said, file a petition, and if it was an initial petition, it 
would fall into one category. If it was the second or a 
successive petition, it would fall into another category and 
the person would have to satisfy the requirements that Congress 
has set out for filing a second or successive petition.
    Senator Feingold. You can't say that the person has a 
constitutional right not to be executed?
    Judge Alito. Well, I have to know the specific facts of the 
case and the way it works its way through the legal system. The 
rules here are complicated. A person has a right. It is one of 
the most fundamental rights that anybody has. It is a 
fundamental right and a fundamental objective of our judicial 
system that nobody is to be convicted without proof beyond a 
reasonable doubt. If evidence--if there's evidence that the 
person is not guilty of the offense, then that gets to the very 
heart of what our whole system of criminal justice is designed 
to address.
    Senator Feingold. I will stop on that topic, but I think 
there is a real question here. Simply because somebody is 
adjudicated guilty but they are, in fact, innocent, I would 
take the view that they still have a constitutional right not 
to be executed, but I am glad we could talk about that a bit.
    Let me talk about affirmative action. In her opinion in 
Gruder v. Bollinger, Justice O'Connor recognized the, quote, 
``real world significance and impact'' of affirmative action 
programs and policies, and she noted that American businesses 
need skills obtained through exposure to widely diverse people 
and cultures. A racially diverse officer corps is essential to 
the military's ability to fulfill its mission to provide 
national security. And diversity in colleges and universities 
leads to diversity in civil society, which is, quote, 
``essential if the dream of one nation, indivisible, is to be 
realized.''
    Justice O'Connor expressly gave great weight to the views 
of military leaders, who said a highly qualified racially 
diverse military is essential. How much weight would you give 
to that view?
    Judge Alito. Well, I can speak to the issue of diversity in 
education from a little bit of my own experience. A couple of 
years ago, I taught, as an adjunct law professor at Seton Hall 
Law School, I taught a seminar on civil liberties and 
terrorism, because in the wake of terrorist attacks on 9/11, it 
became apparent to me that there were going to be a lot of 
civil liberties issues raised. It seemed to me that these were 
issues of the utmost importance, so I put together a seminar on 
the question.
    The first time I conducted the class, we had an extremely--
we had a class with people of extremely diverse backgrounds 
relating to this issue. There was a student who had been in the 
Special Forces in Bosnia. There was a student who was a Muslim 
from the Middle East. There were a number of students who had 
been personally affected by, in one way or another, by the 
terrorist attacks on the World Trade Center. There were 
students who felt very strongly about civil liberties. And 
having these people in the class with diverse backgrounds and 
outlooks on the issues that we were discussing made an enormous 
contribution to the class.
    So in that setting, I have personal experience about how 
valuable having people with diverse backgrounds and viewpoints 
can be, and the Supreme Court has expressed the view that 
diversity is a compelling interest. Having a diverse student 
body is a compelling interest. Justice Powell voiced that back 
in the Bakke case and it's been reiterated in a number of cases 
and most prominently in--most recently in the Gruder case.
    Senator Feingold. In fact, in Gruder, seven of the nine 
Justices, all but Justices Scalia and Thomas, reaffirmed 
Justice Powell's determination in the Bakke case that the State 
has a compelling interest in promoting diversity in the 
classroom. Do you think that increasing diversity in the 
classroom is a compelling State interest?
    Judge Alito. Well, I've spoken to my own personal 
experience about its importance in education and Gruder is a 
precedent that directly addressed this issue in the context of 
education. It's the Supreme Court's recent word on this issue.
    Senator Feingold. I hope you will think it fair that 
nothing about what you just said would suggest to me you think 
it is anything less than a compelling State interest.
    Judge Alito. It is a precedent and the Supreme Court has 
dealt with this over a period of time, and that's the 
conclusion that they've drawn.
    Senator Feingold. On another subject, do you believe that 
Congress has the power under the Constitution to prohibit 
discrimination against gays and lesbians in employment?
    Judge Alito. I would have to--I can't think of a reason why 
Congress would not have that power, but I would have to be 
presented with the arguments.
    Senator Feingold. In 2001, you wrote an opinion overturning 
a public school district's antiharassment policy, that 
protected, among other people, lesbian and gay students. You 
said the school policy in the case, Saxe v. State College Area 
School District, violated the First Amendment, and the case was 
brought by students who believed that the policy interfered 
with their ability to speak out against the ``sinful'' nature 
and harmful effects of homosexuality as compelled by their 
religion.
    In your Senate questionnaire you note that you won the 
Family Research Council Golden Gavel Award in 2001 for your 
decision striking down that policy. The Family Research Council 
is a leading conservative group that opposes gay rights.
    In order for a policy protecting gay students from 
harassment to pass constitutional scrutiny, must it have an 
exception for harassment motivated by religious belief?
    Judge Alito. Well, let me say what was at issue in the Saxe 
case because that's the context in which I dealt with issues 
like this. The Saxe case involved a very broad antiharassment 
policy that had been adopted by a school district, and it 
prohibited the expression of--it not only prohibited the 
expression of political viewpoints, but it went so far as to 
say that just about anything that any student would say about 
another student that would be offensive to that student, 
including comments on the way the student dressed, or the 
things that they like to do, would be a violation of the 
antiharassment policy. And under the First Amendment, unlike in 
most other areas of the law, statutes can be challenged on 
overbreadth grounds, and that was the ground on which the 
statute was struck down in the Saxe case, that it was overly 
broad, that it prohibited a great deal of speech that was 
constitutionally protected.
    The Supreme Court decided back in the Tinker case that 
students don't lose all of their First Amendment rights to 
freedom of expression when they enter the school grounds, and 
Justice Brennan's opinion in that case set out the test that is 
to be applied there, the schools have greater ability to 
regulate student speech than Government has to regulate adult 
speech in general, but the authority of school officials to 
regulate political speech by students--in Tinker it was the 
wearing of an arm band to protest the war in Vietnam--is not 
unlimited, and there has to be a threat of disturbance on the 
school grounds or a violation of the constitutional rights of 
another student. And so any policy that regulated student 
expression, political expression in a school, would have to 
satisfy Justice Brennan's Tinker standard.
    Senator Feingold. Thank you, Judge. Does Congress have the 
authority to enact legislation that would protect gay students 
from harassment in schools that receive Federal funding?
    Judge Alito. That would fall within the South Dakota v. 
Dole standard, and the question would be whether the condition 
that's attached to the receipt of the Federal funds is germane 
to the purpose of the funding, and that's a standard that gives 
Congress a very broad authority.
    Senator Feingold. So that Congress does have the authority 
in general. The question would be the scope of it.
    Judge Alito. Congress has the authority to attach all sorts 
of conditions to the receipt of Federal money. It has to be 
clear so that the States understand what they're getting into, 
that if you take this money there are conditions that go with 
it, but provided that that clear statement requirement is 
satisfied and provided that the condition is germane to the 
purpose of the funding, then Congress can attach conditions, 
and it could do so in this area.
    Senator Feingold. Judge, let me switch to an ethics issue 
that is not Vanguard. As you know, after your testimony 
concludes today, a number of outside witnesses are coming to 
testify about your nomination, including seven current and 
former judges from your court. As far as I know, this is the 
first time that sitting Federal judges have testified on behalf 
of a Supreme Court nominee. I am a little troubled by it. I 
hope to have some opportunity to question the judges about 
this, but I think it may raise something of an ethical issue 
for you. If you are confirmed to the Supreme Court, how would 
you analyze a possible recusal motion if an appeal on a case 
from one of those sitting judges testifying on your behalf were 
to come before you? Will you have to recuse yourself from any 
case where one of these judges was involved in the decision?
    Judge Alito. That's not a question that I've given any 
thought to before this minute, Senator, so I don't know that I 
could answer it, and I would want to answer any recusal 
question very carefully.
    Senator Feingold. Perhaps you could give me an answer after 
you have had a chance to think about it.
    Judge Alito. I'd certainly be happy to do that.
    Senator Feingold. Appreciate that.
    Mr. Chairman, I think that is sufficient. Thank you very 
much.
    Chairman Specter. Thank you very much, Senator Feingold.
    We are on course to finish you before lunchtime, Judge 
Alito. We have more potential questions from the Republican 
side, and we have two more from the Democratic side.
    Senator DeWine, do you have any questions?
    Senator DeWine. Mr. Chairman, I will reserve my time.
    Chairman Specter. Senator DeWine reserves his time.
    Senator Schumer, you are recognized for up to 25 minutes.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Specter. With our conversation that you are going 
to ask new questions.
    Senator Schumer. That is what I want to ask but--
    [Laughter.]
    Senator Leahy. It is a new day.
    Senator Schumer. I think some of my old questions, ones I 
have asked before, should bother you. They bother me.
    But in any case, I do have a few other issues that I do 
want to talk to you about. The first is just a general question 
on Presidential power. Let's just assume that it was found that 
the President's right to wiretap people, the way we are 
discussing it now in terms of the recent NSA revelations, was 
found constitutional. Would there be a different standard if, 
say, the President--does that necessarily allow the President 
to then go ahead and go into people's homes here in America, 
American citizens, without a warrant? Does the one necessarily 
lead to the other?
    Judge Alito. I would have to understand the--I would have 
to see the ground for holding the wiretapping or the electronic 
surveillance constitutional before seeing whether it would 
apply in the case of other searches and seizures.
    Senator Schumer. But let's assume it is constitutional.
    Judge Alito. I'd have to know what the arguments were made 
about it and on what ground it was found to be constitutional.
    Senator Schumer. So it could follow, but might not; is that 
what you would say?
    Judge Alito. It very well might not. I would have to know 
the constitutional ground for the decision relating to the 
wiretapping, and I have no idea what that would be. It might 
well not extend to things like physical searches of homes.
    Senator Schumer. Is there a difference? Is there a 
constitutional difference between a wiretap and an actual 
physical search of the home on Fourth Amendment grounds? Is 
there any that you know in cases--
    Judge Alito. There are differences, yes, there certainly 
are.
    Senator Schumer. Thank you.
    Judge Alito. Wiretapping is subject to--general criminal 
wiretapping is subject to all the rules that are set out in 
Title III, which are thought to be based in large part on 
Fourth Amendment requirements. And the warrant requirement is 
very strong in the area of electronic surveillance. When you're 
talking about other types of searches, the searches can take 
place in a variety of places for a variety of reasons.
    Senator Schumer. But if it can be done under the inherent 
power that the President has for the one, why could it not be 
done for the other? I am not asking about the statute.
    Judge Alito. There's also a Fourth Amendment issue. Any 
search--
    Senator Schumer. In both cases.
    Judge Alito. In both cases, and the Fourth Amendment could 
play out very differently in those two contexts.
    Senator Schumer. Now I would like to go back to some of the 
line of questioning that Senator Durbin explored yesterday when 
he mentioned the crushing hand of fate, Bruce Springsteen.
    Judge Alito, I assume you believe that you will be able to 
be fair in every case that comes before you on the Supreme 
Court.
    Judge Alito. I have no reason to think I will not be. I 
certainly will.
    Senator Schumer. And you do not believe that you prejudged 
any legal of constitutional issue?
    Judge Alito. I don't believe that I have.
    Senator Schumer. And you will take care to apply the rules 
of law and procedure equally and evenhandedly, no matter who 
the parties are, prosecution or defense?
    Judge Alito. I certainly will, yes, Senator.
    Senator Schumer. Employer or employee.
    Judge Alito. I will apply the laws evenhandedly to 
everyone.
    Senator Schumer. And I take it you it you believe that you 
have done just that on the Third Circuit while you were there?
    Judge Alito. I believe I have.
    Senator Schumer. Yesterday Senator Durbin asked about 
Pirolli v. World Flavors, and you remember that case. You 
discussed it with Senator Durbin. And the case involves the 
claims of a mentally retarded man who brought suit against his 
employer for violent and persistent sexual harassment by his 
coworkers, am I right?
    Judge Alito. Those were the claims.
    Senator Schumer. And the majority allowed the case to 
proceed, finding that the Court had ``discretion to consider 
issues not raised in the brief.'' And they did so to give the 
plaintiff his day in court. You exercised your discretion to 
vote against giving him his day in court because his lawyer 
failed to raise the argument in the brief. As you told Senator 
Durbin, ``There is a very important principle involved in 
appellate practice''--these are your words--``I think it goes 
with the idea of judicial self-restraint, and that requires 
parties raise issues in the trial court, and that if they don't 
raise the issue in the trial court, then absent some 
extraordinary circumstances, they shouldn't be able to raise 
the issue on appeal.'' and that was the principle there. Those 
are your words, right?
    Judge Alito. I believe they are, yes.
    Senator Schumer. Now I would like to go to two other cases 
that you had when you were on the Third Circuit. The first one 
is Smith v. Horn, where a similar issue arose. That was a 
criminal case involving a habeas corpus petition brought by a 
criminal defendant, right?
    Judge Alito. Yes, it was.
    Senator Schumer. And it turns out that in that case as 
well, just like Pirolli, one of the parties had failed to raise 
a relevant argument in its brief, right?
    Judge Alito. Well, Smith v. Horn was really not comparable 
to Pirolli for a very important reason. Smith v. Horn was a 
habeas case, and so what is involved there is not simply a 
dispute between private parties, and of course, disputes 
between private parties are very important, and individual 
rights can be involved.
    Senator Schumer. No, I understand it is a Government case. 
Let me just make--
    Judge Alito. There's more to it than the Senator--
    Senator Schumer. I am going to let you answer it. I just 
want to make the point here so everybody can--the majority in 
Smith v. Horn to say--this time it was the Government that 
failed to raise the issue in the district court brief. This 
time you were prepared to excuse that failure. This time you 
felt it was appropriate to consider the issue on your own, and 
I am at a loss to understand the difference. I am going to give 
you a chance to explain, but I want to read what the majority 
in Smith v. Horn had to say about your indulgence of the 
Government for failing to bring up an issue, just as the 
retarded person did with Pirolli.
    They said, ``Where the State has never raised the issue at 
all in any court, raising the issue ourselves puts us in the 
untenable position of ferreting out possible defenses upon 
which the State has never sought to rely. When we do so, we 
come dangerously close to acting as advocates for the State, 
rather than as impartial magistrates.''
    So as far as I can see, the legal principle and procedural 
rule in each case was precisely the same, the only difference 
being that the first was a sexual harassment plaintiff who left 
out an argument, and in the second, it was the Government who 
did. In the first case you said to that retarded individual, 
``Sorry, you're out of luck.'' In the second case you said to 
the Government, ``I'll make your argument for you.'' and that 
does not seem evenhanded to me. Can you explain the difference?
    Judge Alito. Yes, Senator. As I was attempting to explain a 
couple minutes ago, there is an important principle called the 
Principle of Comity that is involved in habeas cases, and it 
goes to a critical part of our concept of federalism, and it is 
something that Congress itself has very strongly recognized in 
the habeas corpus statute. What I'm talking about there is the 
doctrine of procedural default, which is very closely related 
to the doctrine of exhaustion. They go hand in hand. And what 
Congress has said in the Antiterrorism and Effective Death 
Penalty Act of 1996 is that on the issue of exhaustion, the 
court has to consider that even if the parties don't raise it.
    Senator Schumer. Now, that applies to the Government as 
well as to the defendant?
    Judge Alito. Absolutely. The issue of exhaustion must be 
considered by the Federal habeas court, even if the State 
prosecutor does not raise the issue of exhaustion. And why did 
Congress say that? Congress said that because there's something 
more involved here than a dispute between the State prosecutor 
and the habeas petitioner. There is respect for the Federal 
system of Government involved. There is respect for the State 
court system involved.
    Senator Schumer. But the majority did not agree with you in 
that situation, did they?
    Judge Alito. The majority, but what I'm saying, Senator, is 
that the underlying principle of comity makes this case makes 
Smith v. Horn quite different from a dispute between private 
parties.
    And the Supreme Court has said that it is appropriate in 
certain circumstances for a court to consider procedural 
default sua sponte, and that's what I thought we should do 
there. And my position on--
    Senator Schumer. Let me ask you--I understand your 
explanation. I am not sure I agree with it, but let me go on to 
another one. This is Dillinger. In this case it was with a 
corporation. The case is Dillinger v. Caterpillar. And it is 
also a case where a party did not raise an issue at trial, will 
not have the same explanation as the habeas case, obviously. 
They did not raise the issue at trial or on appeal. This time a 
large company didn't, Caterpillar. And the majority held that 
it was waived and it sided with the plaintiff, who was 
seriously injured in the accident, right?
    Judge Alito. I don't have a recollection of all of the 
facts--
    Senator Schumer. OK. Well, let me tell you. Maybe this will 
refresh your recollection. The majority wrote that it was not 
appropriate to exercise its discretion--again, it was the 
majority--to excuse the defendant company's waiver when the 
consequence of the decision would be to deprive a seriously 
injured plaintiff of a trial in conformity with applicable law. 
That is the majority.
    You dissented, with the result, had you prevailed, that the 
accident victim's case would have been over. The majority 
described your approach as follows. Quote, ``There is an 
insurmountable procedural difficulty with Judge Alito's 
position. Caterpillar never advanced this argument at trial, an 
oversight that Judge Alito excuses on a ground that a district 
court decision may be affirmed on an alternative ground, though 
not advanced at trial.''
    So in the Dillinger case, you also thought it was 
appropriate to use your discretion to excuse Caterpillar, isn't 
that right?
    Judge Alito. Well, I'd have to refresh my recollection 
about exactly what was involved in the case. There is--
    Senator Schumer. Can you explain the difference between the 
two for us, why in one case it was OK and why in another case 
it wasn't?
    Judge Alito. Senator, I'd have to refresh my recollection 
about Dillinger--
    Senator Schumer. So you don't--
    Judge Alito.--but what you've just mentioned calls--relates 
to the principle that it is appropriate for an appellate court 
to affirm a decision of a lower court on an alternative ground 
when the basis for that is apparent from the record of the 
case. So if the facts that are--if it's a purely legal issue, 
for example, and you're talking about whether you're going to 
affirm or whether you're going to reverse--
    Senator Schumer. Was that the case in Dillinger?
    Judge Alito. Without refreshing my recollection, I wouldn't 
be able to tell you--
    Senator Schumer. All right.
    Judge Alito. But what you read--
    Senator Schumer. I would posit to you that, again, it was 
an example of your seeming to have more sympathy for a certain 
type of plaintiff than another, but what I would like to do, 
Mr. Chairman, is just ask permission that Judge Alito could 
respond to the difference, which he hasn't been able to do here 
because he doesn't recall the details of the case, in writing 
in the next few days.
    Chairman Specter. Is that acceptable to you, Judge Alito?
    Judge Alito. Certainly, Senator, yes.
    Senator Schumer. Because he can then go look at the case 
and explain to us why he thought it was different.
    Chairman Specter. With Judge Alito's agreement, that will 
be the procedure.
    Senator Schumer. Thank you. Next, strict construction. 
President Bush has stated his beliefs that judges should be 
strict constructionists, rigidly adhere to the letter of the 
Constitution. He has described you as a strict constructionist 
who favors judicial restraint. So I would just like to explore 
one particular issue with you.
    First, as you said before, there are certain very 
straightforward questions that are easy to interpret. It says 
in Article I, Section 3, no person shall be a Senator who will 
not have attained the age of 30 years. That was a section you 
mentioned at our individual meeting, and there is no way that 
it could be constitutional, I suppose, for a 27-year-old to 
become a Senator, correct? That is easy. That is strict 
construction, easy.
    Judge Alito. I can't think of a reason why that would not 
be the case.
    Senator Schumer. Good. Me, either, lucky for them.
    [Laughter.]
    Senator Schumer. Next, another one. No person except a 
natural-born citizen or a citizen of the United States at the 
time of the adoption of this Constitution shall be eligible to 
the office of President. So there is no way, without a 
constitutional amendment, that, say--I know Senator Hatch has a 
bill--that, say, Arnold Schwarzenegger could become President 
under the current circumstances. That is easy.
    Judge Alito. Well, I don't want to express a view about the 
constitutionality of Senator Hatch's bill.
    Senator Schumer. No, it is a constitutional amendment.
    Judge Alito. A constitutional amendment.
    Senator Schumer. I am just asking you very simply, you 
would need a--
    Judge Alito. No one but a natural-born citizen can be the 
President of the United States.
    Senator Schumer. OK. Now I want to ask you about the 14th 
Amendment, which sets forth the definition of citizenship. It 
states, in relevant part, all persons born or naturalized in 
the United States and subject to the jurisdiction therefore are 
citizens of the United States. All persons means all persons. 
That is pretty easy. Do you agree this is a fairly clear and 
straightforward provision of the Constitution?
    Judge Alito. There are legal--there are active legal 
disputes about the meaning of that provision at this time.
    Senator Schumer. Right. But given the clear language, could 
Congress pass a statute, not a constitutional amendment, 
denying citizenship to a person born in the United States?
    Judge Alito. And I know that there are proposals to do 
that. I know that it is an issue that is in play. If it were to 
come before me, then I would have to go through the whole 
judicial process of decisionmaking--
    Senator Schumer. Is there any way that you can see, just 
off the top of your head here, that that kind of statute would 
be constitutional?
    Judge Alito. Well, Senator, on issues that can come before 
me in litigation, I need to apply the same standard that 
previous nominees have applied, and that is no hints and no 
previews. And they may be--they may turn out to be easy issues. 
They may turn out to be hard issues. But I can't opine on them 
here off the cuff. I would have to go through the process of--
    Senator Schumer. Just make the argument. You don't even 
have to tell us how you would decide. What imaginable argument 
could there be for a statute that Congress could deny the 
citizenship to those born in the United States, say, on the 
grounds that their parents were illegal aliens? Is there any 
constitutional argument that you can see off the top of your 
head?
    Judge Alito. Well, Senator, I don't want to say anything 
that--could I answer the question, Senator. I don't want to say 
anything that anybody will characterize as an argument that I 
am making on one side of this question or on the other side of 
the question. I know that an argument is being made by people 
who favor this kind of legislation based on the language, under 
the jurisdiction of the United States, and I don't know whether 
that will turn out to--I don't know whether it will come before 
me. I don't know whether, when it's analyzed, it will turn out 
to be a compelling argument or a frivolous argument or 
something in between and I wouldn't express an opinion on it.
    Senator Schumer. Judge, I simply asked you to give us an 
interpretation of one of the most direct and clear provisions 
in the United States Constitution, and if you can't give us an 
answer on a very, it seems to me, clear-cut question like that, 
I find, and I think many of us find, make it difficult to make 
an assessment of how to vote on your nomination because--
    Judge Alito. Senator, my answer is that it is inappropriate 
for a sitting judge or for a nominee to a judicial position to 
offer opinions on constitutional questions that are percolating 
at that time and may well come before that judge or that 
nominee. It may turn out to be a very simple question. It may 
turn out to be a complicated question. Without studying the 
question, I don't know and I wouldn't--and even if I had an 
initial impression, I wouldn't voice it here. I would have to 
go through the whole judicial decisionmaking process before 
reaching a conclusion that I would be willing to express.
    Senator Schumer. I want to move on now to the Commerce 
Clause and Rybar. As you know, after you ruled on Rybar, 
Gonzales v. Raich was decided and Justice Stevens wrote for the 
majority the following. ``Our understanding of the reach of the 
Commerce Clause, as well as Congress's assertion of authority 
thereunder, has evolved over time.'' Do you agree with that 
statement? Has our understanding of the scope of that clause 
evolved over time, and is it appropriate for our understanding 
to evolve?
    Judge Alito. I think our understanding of the reach of the 
Commerce Clause has evolved as the commercial activity of the 
country has developed. Commerce in the United States at the 
time of the adoption of the Constitution was entirely different 
from commerce in the United States today.
    Senator Schumer. I think most people would agree with that, 
maybe--
    Judge Alito. As a matter of looking at the development of 
case law, certainly the case law has developed. The pre-New 
Deal case law was fundamentally different from the post-New 
Deal case law, with which I don't have any quarrel.
    Senator Schumer. Right. But here, I am going to read you 
two views on the Commerce Clause. One, Congress's authority to 
enact laws necessary and proper for the regulation of 
interstate commerce is not limited to laws directed against 
economic activity that have a substantial effect on interstate 
commerce. Where Congress has the authority to enact a 
regulation of interstate commerce, it possesses every power 
needed to make that regulation effective.
    Then there is another view. Under the Commerce Clause, 
Congress may regulate interstate commerce, not activities that 
substantially affect interstate commerce. Those are pretty 
diametrical.
    I am not asking for an absolute here, but which one is 
closer to your view of the Commerce Clause?
    Judge Alito. Well, the second view is contrary to Supreme 
Court precedent. It is contrary to even Lopez and Morrison, 
which says that Congress may regulate activities that 
substantially affect interstate commerce.
    Senator Schumer. Right, and the first actually was Justice 
Scalia's concurrence in Raich, and the second, even though it 
may be contrary to precedent--we have talked about precedent 
before--was actually Justice Thomas's dissent in Raich, so it 
is obviously a view that has some currency on the Court. I am 
glad to see you favor the first one.
    Now, I asked you a question when we met. I asked you, as 
you know, because we talked about it, I was very troubled by 
your decision in Rybar as--and Mr. Chairman, I just don't want 
to--could I get permission for an additional five minutes? That 
is all I will need.
    Chairman Specter. Yes.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Specter. I couldn't be very forceful about it, but 
yes.
    Senator Schumer. Thank you. I will take it any way you give 
it.
    [Laughter.]
    Senator Schumer. I asked you in Rybar when we had met if 
you would have decided the case differently after Raich, which 
is quite different than Rybar, and at that point you said you 
wanted to think about it and I told you I would ask you here. 
So I guess you have thought about it now. So my question is, 
does the recent Supreme Court decision in Raich, joined by 
Justice Scalia, whose opinion you said was closer to your view 
than the other, affect your thinking? More specifically, had 
Raich been decided before you got Rybar, do you think you would 
have decided it differently?
    Judge Alito. Well, Senator, I don't recall making a promise 
that I would reach a definitive conclusion--
    Senator Schumer. I asked you to think about it. You said 
you would. That is all.
    Judge Alito. And I have thought about it, but what I can 
say is that I certainly would have thought about Rybar 
differently had I had Raich available at that time. My effort 
in Rybar was to follow Supreme Court precedent. At the time, 
Lopez was the latest expression of the Supreme Court's view of 
this question, and if the chronology had been different and I 
had the benefit of Raich, I would have taken that into account.
    Senator Schumer. OK. Now, just one other thing on the 
Commerce Clause. So what you are saying is that there is a 
possibility--we won't put a percentage on it--that Raich might 
have changed the outcome of your ruling or your dissent in 
Rybar?
    Judge Alito. Well, it certainly would have changed my 
thinking and my analysis. I would have had to take it into 
account.
    Senator Schumer. We will take what we can get.
    Next, as a U.S. Attorney, you frequently crossed paths with 
State agencies, particularly law enforcement agencies, and at 
that point, as I remember--I was a Member of Congress very 
active in anti-crime legislation--there were all kinds of 
fights about whether there should be an increased Federal role 
in crime fighting. You must have dealt with some of those 
statutes. There was carjacking and trigger-lock type offenses. 
You must have presided over some prosecutions of local 
corruption based on an expansive Federal law theory. Mail fraud 
was being expanded at that time. These enforcement priorities 
tended to be conservative. I agreed with them, but they tended 
to be conservative priorities.
    So did your tenure as U.S. Attorney affect your thinking on 
these kinds of situations in terms of the State, the need for 
Federal involvement when the State can't do it?
    And it brings up, and then I will let you speak about this 
for a minute, in the odometer Act--I can't remember the exact 
name of it, but the legislation that was bill S. 475 that 
Senator Feinstein mentioned, you urged disapproval. But it 
seems to me if that legislation was disapproved, it would have 
been very difficult for the Federal Government to regulate 
odometers because cars that were transferred from one State to 
the other wouldn't have the same uniform system in terms of 
their title, and it seems to me, at least, in this world which 
is becoming smaller and smaller that some of the federalism 
theory, that the States should have primacy in regulation, just 
don't make sense.
    It didn't make sense to me in your decision in Rybar, as we 
have discussed. Ninety percent of the guns used in crimes in 
New York come from out of State. There is no way New York State 
could stop them unless they inspected each car that came across 
the George Washington Bridge. Similarly, here. Without this 
Federal statute, there is no way the Federal Government could 
regulate odometers. It would be ridiculous to ask General 
Motors to have 50 different standards for 50 different States. 
And similarly as U.S. Attorney, there were areas where it was 
better for, particularly in our interconnected world, for the 
Federal Government to prevail.
    And yet here you were saying--you were working for the 
administration, but they ultimately rejected your view--that 
State primacy is such--you even said in this memo, after all, 
it is the States, not the Federal Government, that are charged 
with protecting the health, safety, and welfare of citizens. 
That is a pretty broad statement. I would take it you had 
exceptions to it, of course--Medicare, U.S. Attorneys. You 
wouldn't have had a job if that was an absolute statement back 
then.
    But just tell us a little bit, for a couple of minutes, 
about your view of the balance between State and Federal 
powers, particularly in light of the changing circumstances we 
face.
    Judge Alito. Well, I think your mentioning those two 
things, the memo that I wrote when I was in OLC or that I 
signed when I was in OLC and my service as U.S. Attorney brings 
out an important point. I was playing different roles. I had 
different responsibilities in those two jobs. When I was in 
OLC, I think what I was expressing in that memo was the 
federalism policies of the Reagan administration, which as I 
mentioned earlier, involved going beyond simply insisting on 
compliance with constitutional standards. It also involved 
implementing a policy that certain things should be done at the 
State and local level, even if the Federal Government could do 
that.
    As U.S. Attorney, it was my job to use the legal resources 
that were available to address the crime problems of the 
district for which I was U.S. Attorney and I approached that on 
a basis of cooperating with State and local law enforcement and 
my approach was that we should do, the Federal prosecutors 
should do and the Federal investigative agencies should do the 
things that they were best suited to do and that it should be a 
practical division of responsibility. And in many instances as 
U.S. Attorney, we were using far-reaching Federal powers. We 
brought a Hobbs Act prosecution and were stunned when the 
district court initially threw it out on Commerce Clause 
grounds, because that was virtually unheard of.
    Senator Schumer. All I am trying to get at here, there is a 
practical dimension here that I think fits within the 
Constitution, and you are agreeing with that.
    Judge Alito. Absolutely, and I--
    Senator Schumer. I just have to conclude, but go ahead.
    Judge Alito. Senator, that is fine.
    Senator Schumer. Good. Quit while we are ahead on that one.
    Let me just, in conclusion, Judge, thank you. It has been a 
long 3 days, obviously. As your testimony in these hearings 
comes to a close, I just have to tell you that I remain very 
troubled, not by anything in your personal history so much as 
by your judicial views.
    You arrived before us this week with a record. It is a 
record that contains evidence that you believe the Constitution 
does not protect a woman's right to choose. It is a record that 
suggests you believe in an executive branch so powerful that it 
would trump other branches of government. It is a record that 
makes you appear all too willing to curtail the ability of 
Congress to look out for the little guy and a record in which 
you all too often seem to reach for the legal theory that 
allows you to side with the large and powerful when average 
Americans touched by this crushing hand of fate need the most 
help.
    Unfortunately, by refusing to confront our questions 
directly and by giving us responses that really don't 
illuminate how you really think as opposed to real answers, 
many of us have no choice but to conclude that you still 
embrace those views, completely or in large part, and would 
continue in a similar fashion on the Supreme Court. So while 
the process is not yet over, we have written questions, we have 
some witnesses, the evidence before us makes it very hard to 
vote yes on your nomination.
    On the first day of hearings, I said that while you give 
the appearance of being a meticulous legal navigator, in the 
end, you almost always choose the rightward course. I am sorry 
to say that I haven't heard anything this week very substantive 
to dissuade me from that opinion, but I thank you for being 
here and going through these hearings.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Schumer.
    Senator Sessions, do you have any questions?
    Senator Sessions. Just a few. I would just respond to 
Senator Schumer and Senator Kennedy and would note that that is 
not what the ABA has concluded. They have interviewed 300 of 
your colleagues, judges and lawyers who have practiced before 
you and against you, and they rate you the highest possible 
rating. They don't see you as an extremist, out of the 
mainstream, or otherwise.
    And I also want to thank your family for their patience in 
going through all of this and listening to those of us on this 
side as we expostulate on all sorts of things. I see your 
sister back there, in her own right a nationally known 
attorney, Rosemary. It is good to see you here. I understand 
you were debate partners in high school. It must have been an 
interesting household to have two prominent lawyers growing up, 
so I will ask you how that was and who was the best debater.
    [Laughter.]
    Judge Alito. I will take the Fifth Amendment on the second 
part of the question--
    [Laughter.]
    Judge Alito.--but it structured our arguments, so instead 
of arguing about things at home, we would argue about the 
issues that we were debating.
    My wife insists that we actually argued a debate in front 
of her class. We didn't know each other at all at the time and 
didn't meet, actually, for many, many years later, but we did 
have a debate at her high school, which was about 20 miles 
away, and she insists she remembers seeing us debating in front 
of her French class.
    Senator Sessions. It must have been an interesting thing. 
Apparently, your colleagues in school there were impressed. 
They predicted you would serve on the Supreme Court one day, 
and I think that is going to turn out to be a good prediction.
    I would point out, Judge Alito, that you have been asked a 
lot about separation of powers, FISA Act, and those kind of 
things. This Congress has not clarified its position yet. As a 
judge, if some of these issues were to come before you 
involving congressional power or something, you would expect 
the Congress to have formulated its position first, would you 
not?
    Judge Alito. Well, that would certainly be very helpful. 
These are very--these are momentous issues and they're 
difficult issues and they are--they have just come to the 
surface in the last few weeks and I couldn't begin to say how I 
would decide any of these issues without going through the 
whole judicial decisionmaking process. I think it would be the 
height of irresponsibility for me to try to do that.
    Senator Sessions. I would agree, and the Chairman is going 
to be having hearings within a few weeks here to discuss many 
of these issues and it is something that every Senator will be 
engaged in, whether they desire to or not, and we will have to 
think these important issues through. I don't think they are 
ripe yet for decision, that is for sure.
    I would also note that with regard to Justice Jackson's 
position on the President and his war making powers and the 
question of when there is a higher position and a lower ebb 
position, Chief Justice Rehnquist discussed that idea in Dames 
and Moore v. Reagan and, in fact, pointed out that that doesn't 
completely answer the question. Those answers are not black and 
white and there is a spectrum running from explicit 
congressional authorization to implicit or to explicit 
congressional prohibition. So there are many factors that must 
be considered, would you not agree, as you analyze those 
matters?
    Judge Alito. Yes, you have to know the specifics of the 
situation.
    Senator Sessions. On the question of jurisdiction of the 
Supreme Court and whether Congress has the power to contain it 
in some way, it does appear there is language in the 
Constitution that indicates that. As you said yesterday, it is 
there.
    My question to you is do you believe that the three 
branches of Government owe it to our country and to our 
constituents to stay within our bounds and to avoid a 
constitutional confrontation, a constitutional crisis? Isn't it 
better if the courts restrain themselves, Congress would 
restrain itself and not to go forward to an ultimate 
confrontation of those issues?
    Judge Alito. It certainly is. The issue of the ability of 
Congress to take away the Supreme Court's jurisdiction over a 
particular subject of cases is not something that I have 
previously addressed in writings, unlike a lot of previous 
nominees who had addressed that, and therefore I think felt 
that they were freer to discuss that when they came before the 
Committee.
    That is not something that I have ever addressed in any 
writing, nor is it something that I have studied, other than to 
read a few--you know, read some of the authorities who have 
addressed the question. I did mention that I had given a speech 
expressing the idea that I thought that it was not a good 
policy idea.
    I could understand the--I understand the motivation, but I 
don't think that it is good as a matter of policy to proceed in 
that fashion. And I don't know what the argument would be as I 
sit here in favor of taking away jurisdiction over an entire 
class of cases. That would raise some serious constitutional 
questions.
    Senator Sessions. I would just say to you I think we ought 
not to confront that question if we can avoid it, and that is 
why I have not joined in legislation, some of which has been 
filed in this Congress, to take jurisdiction away. But I do 
believe that is some power that has been given to the Congress 
and hopefully will not have to be utilized. Hopefully, that 
sword will never be drawn because the Court will show restraint 
and remain within the constitutional powers that they have.
    With regard to the unitary Executive, there are just three 
branches of Government in our Constitution. That is correct, is 
it not?
    Judge Alito. That is all I see in it.
    [Laughter.]
    Senator Sessions. Well, does every agency and department 
have to be within one or the other?
    Judge Alito. I think they do. That doesn't say that they 
can't be structured in ways that differ from each other, 
depending on their function. And that doesn't address the 
separate issues of appointment or removal or whether--well, let 
me just leave it there, with appointment and removal. But I 
think that the Constitution sets up three branches and 
everything has to be within one of those branches.
    Senator Sessions. One of the things that I learned as 
United States Attorney is these agencies think they are 
independent entities. They think they are almost like nations. 
When they get together--you probably had this experience--they 
sign memorandums of understanding.
    Wouldn't you agree they sometimes look awfully like 
treaties?
    Judge Alito. They do look--yes, they do look like treaties 
between Federal law enforcement agencies and State law 
enforcement agencies.
    Senator Sessions. But, of course, the Federal Government is 
one. They can't take two positions in a lawsuit. That is for 
certain.
    With regard to interstate commerce, there is a limit to 
that, to the power of the Government, I believe. In the Hobbs 
Act and the Racketeering Act that Senator Schumer mentioned, 
doesn't it say within those Acts that the extortion of the 
pattern of racketeering has to affect interstate commerce and 
that is an element that the prosecutor must prove before a 
conviction can be obtained?
    Judge Alito. Yes, that is right, and the Federal criminal 
statutes that I am familiar with almost without exception have 
jurisdictional elements in them. That is the traditional way of 
casting them. There are a few areas where that is not feasible, 
such as drugs, but in most of the--most of the statutes have 
jurisdictional elements right in them.
    Senator Sessions. And that is basically the Lopez holding, 
was it not? And in your opinion in Rybar, you specifically said 
all that Congress needed to do was to put in an interstate 
commerce nexus that would be proved to the jury, which I agree 
with you; having prosecuted hundreds of drug cases, it has not 
ever been a problem in those cases to prove.
    That would have solved the problem, isn't that correct?
    Judge Alito. That is right. In firearms cases, that is just 
not a problem.
    Senator Sessions. Well, I think you have testified 
extremely well here. You have been most forthcoming. I disagree 
with the recent comment that you haven't been forthcoming. I 
would say--and I think Senator Biden indicated that we have not 
had a witness more forthcoming, more willing to discuss the 
issues than you have.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Sessions.
    I thought we were going to get to that light at the end of 
the tunnel before one. It looks like we are going to be a 
little later than that, but we don't want to take a break now. 
So to the extent we could move ahead rapidly, it would be 
appreciated.
    Senator Durbin, you had originally asked for ten minutes, 
but I understand you want more time. How much would you like?
    Senator Durbin. Senator, I will do it as close to ten 
minutes as I can. I might need a few extra. I want to reach the 
end of that same tunnel.
    Chairman Specter. All right. Let's set the clock at ten, 
with flexibility to exceed that.
    Senator Durbin. Thank you very much.
    Thank you, Judge Alito. Thanks to your family for putting 
up with this endurance test, and I appreciate your patience 
throughout.
    First, let me address the issue of court-stripping that was 
mentioned by my friend from the State of Alabama. I really hope 
that Congress will never draw that sword. We heard about it 
during the Schiavo case. If we are going to have a truly 
independent judiciary, the thought that Congress will take away 
from the courts issues which we disagree with would really 
jeopardize it. And just editorializing, I hope we don't reach 
that point.
    After you leave today, there will be a panel of your 
colleagues on the bench from the Third Circuit. Was this your 
idea that they come and testify?
    Judge Alito. No, it was not.
    Senator Durbin. Were you asked if it was a good idea?
    Judge Alito. No, I was not.
    Senator Durbin. OK. I understand it has never happened 
before and that is why I asked you that question. I don't know 
who came up with this notion, but it does raise some 
interesting questions which we have shared on a bipartisan 
basis about that testimony. But since you weren't involved in 
that decisionmaking, I will drop it at that.
    Then there will come some public witnesses and one of those 
witnesses will raise a contrast between two decisions you made, 
and I am going to give you a chance now to respond to that 
charge or that observation that will be made. Fourth Amendment 
cases. One we have talked about a lot, Doe v. Groody, another 
we have talked about, I think, tangentially which involves 
Leveto. I hope I am pronouncing that correctly.
    Judge Alito. Leveto, or I am not sure what the 
pronunciation is, yes.
    Senator Durbin. You know which case I am concerned with?
    Judge Alito. Yes, I do.
    Senator Durbin. In the Leveto case, a veterinarian and his 
wife, subject to Internal Revenue Service agents coming at 6:30 
in the morning, detaining him, patting him down in an Internal 
Revenue Service investigation, holding him for 6 hours in his 
office. Then they went to his home, found his wife in her 
nightgown, patted her down, held her incommunicado for a period 
of time. And they brought a civil suit and said the Government 
went too far; they didn't have the authority to do those 
things, to pat us down and search.
    And your conclusion, writing the majority opinion, was, 
yes, they did go too far. There was a question about immunity 
which I won't touch on, but at least from the Fourth Amendment 
point of view you said that the Government went too far.
    Now, of course, the notorious case that has come up time 
and again of Doe v. Groody. In that case, there is a search of 
premises and a John Doe search warrant looking for someone who 
might have been involved in drug-dealing. An affidavit attached 
to the warrant says that it could also involve persons on the 
premises who may be hiding drugs, but the affidavit is not part 
of the search warrant. It is maybe incorporated in general 
terms. The majority of the court says that it was not 
incorporated, Judge Chertoff writing for the majority. 
Particularly egregious is the fact that a mother and her 10-
year-old daughter were strip-searched pursuant to that search 
warrant. And in that case, you concluded that that was 
warranted, that was an acceptable search.
    So the witness who comes before us is going to say, Judge, 
how can you do this? You have a veterinarian here and his wife, 
an IRS search. In their case, you said they went too far when 
they patted them down and searched them. The next case 
involving a 10-year-old girl in a strip search--you say they 
didn't go too far.
    How would you compare the two and draw the distinction 
between them?
    Judge Alito. Well, the Leveto case involved the issue of 
how long they could detain people who were present on the 
premises while they executed the search of the premises. And 
they detailed these people for a very long period. I don't 
remember--
    Senator Durbin. Six hours, or more.
    Judge Alito. It might even have been longer. It was a very 
long period of time and there was no warrant for their arrest. 
There was no claim that there was a justification to seize 
them, other than the fact that they were present on the 
premises at the time when the search was being executed.
    The Doe v. Groody case involved the question of the 
interpretation of the warrant, and the standard that is to be 
applied there is, the Supreme Court has told us, a practical, 
common-sense instruction. It is not--the warrant is not to be 
interpreted like a sophisticated commercial instrument that is 
drafted by parties.
    The facts were--you mentioned many of them--that the 
affidavit prepared by the police officer said we have probable 
cause to search anybody who is found on the premises because we 
know that--we have probable cause to believe that this drug 
dealer will hide drugs on the people on the premises.
    And they presented that to the magistrate and the 
magistrate issued the warrant, attached the affidavit to the 
warrant and said the warrant is incorporated for--and I guess I 
left out the important fact that the officers--they said we 
have probable cause to search anybody on the premises and that 
is what we want; we want authorization to search anybody on the 
premises.
    And the magistrate granted the warrant and attached the 
affidavit to the warrant, and said the affidavit is 
incorporated for the purpose of probable cause, which meant 
that the magistrate found that there was probable cause to 
search anybody on the premises. But in the portion of the 
warrant where it said person to be searched, it only mentioned 
this--
    Senator Durbin. John Doe.
    Judge Alito. The John Doe, and using--now if this were a 
bond, I think you would conclude the only person you can search 
is John Doe. But it is a warrant, and my view was that viewing 
this from a practical standpoint, when the magistrate says, 
yes, you are right, there is probable cause to search anybody 
on the premises, that is what he is saying. Those are the 
people he is saying can be searched.
    But even if one didn't agree with that, you would go on to 
the qualified immunity question and say could a reasonable 
police officer who says I have got probable cause to search 
anybody who is on the premises and that is what I want, and you 
go to the magistrate and he magistrate says I agree with you on 
probable cause and here is your warrant--could they reasonably 
think that the magistrate is saying, yes, search anybody on the 
premises?
    Senator Durbin. So did it go into your thinking, this whole 
question of the dignity of the individual, that we are, in 
fact, dealing with a mother and a 10-year-old daughter who were 
subjected to the most intrusive search? Was that part of your 
thinking in terms of coming down in the minority position and 
saying it was all right to go ahead with the search? Did you 
consider that calculation?
    Judge Alito. I was concerned about the fact that a minor 
had been searched. And I mentioned that in my opinion and that 
is something that is very unfortunate. But the issue in the 
case was not whether there is some sort of rule that minors 
can't be searched. That is not part of Fourth Amendment law, as 
I understand it, and there would be a very bad consequence if 
that were the rule because where would drug dealers hide their 
drugs? Minors would then become--they would become the 
repository of the drugs and the firearms.
    Senator Durbin. Or the issuing authority may be more 
specific in the warrant which, as I understand it, is what the 
Fourth Amendment is all about.
    Judge Alito. Well, the warrant here certainly could have 
been drafted better, and a lot of--
    Senator Durbin. I think that is what the majority said.
    Judge Alito. It is, but we have to take into account that 
these are police officers operating under time pressure. And 
the Supreme Court has told us that we are not to read these 
warrants like they are complicated commercial documents. We are 
trying to get at the practicalities of the situation.
    Senator Durbin. I only have a few minutes and I will try my 
best to end it, but I don't think I can do it in two.
    In the Seventh Circuit, in Chicago, Judge Richard Posner is 
a very prolific writer about many things. He recently made an 
observation which I think really is a challenge to all of us on 
the Judiciary Committee. We currently have a situation 
involving immigration cases, particularly those involving 
asylum and deportation, that we have to look at very seriously.
    There was an effort to clear the backlog when Attorney 
General Ashcroft was in charge, and some procedures were 
changed to streamline the process. And a lot of these cases 
were just churned out very quickly, with very little evidence 
as to why decisions were being made. Judge Posner made that 
point recently, publicly stating, if I might quote him, ``The 
adjudication of these cases at the administrative level has 
fallen below the minimum standards of legal justice.'' he said.
    Now, you have been involved in some of these cases, about 
nine split decisions, as we calculate here. There has been a 
dramatic increase in the number of these cases coming to the 
Federal appeals courts. In one particular case here, the Saidou 
Dia case, which involved the deportation of a man back to 
Guinea, where he refused to serve in the military. His wife was 
then confronted in his home country at their home. When they 
couldn't find him, they beat her, raped her, and burned down 
his home. And this was a man who said, ``I don't want to go 
back because I think it could be a dangerous circumstance for 
me.''
    In this case, you dissented and said, ``Return him to 
Guinea.'' You didn't feel that there was a strong enough case 
to grant him asylum in the United States and to stay.
    The reason I raise it is we looked at your record in cases 
where there was a split decision, and we discovered that you 
ruled for the Government in eight out of nine cases and in 
seven of those eight cases yours was the minority position.
    So my question to you is: Do you appreciate the observation 
made by Judge Posner about the terrible state of affairs when 
it comes to the immigration judges and the decisions they are 
sending for you to review? And why did you in those contested 
cases consistently rule on the Government side?
    Judge Alito. Well, Senator, I think I have ruled in favor 
of asylum seekers in a number of cases now and--
    Senator Durbin. There are usually no dissents in those 
cases.
    Judge Alito. Well, I know that I've ruled in favor of 
asylum seekers in quite a number of cases. I don't have the 
list on the tip of my tongue.
    In the Dia case that you mentioned, the facts that you 
recited were not the facts that were found by the immigration 
judge. Those were the facts that the asylum seeker alleged, and 
the whole issue in the case was whether there was sufficient 
evidence to support the contrary finding of the immigration 
judge.
    I agree with Judge Posner that the way these cases are 
handled leaves an enormous amount to be desired. I have been 
troubled by this; my court has been troubled by this. But my 
situation as a court of appeals judge before whom these cases 
come is created by the legal framework that Congress has 
created. And Congress has given us a very limited role in 
reviewing factual findings by immigration judges. What Congress 
has said is that we have to accept factual findings by the 
immigration judge unless no reasonable fact finder could come 
to a contrary conclusion. And that's a tough standard.
    And I have tried to adhere faithfully to that standard in 
all the cases that come before me, even if I felt that I might 
have reached a different conclusion on the record.
    Senator Durbin. Judge, wouldn't you concede there are 
basically two standards that are being debated here? One is 
that no reasonable adjudicator would have come to a different 
conclusion. The other talks about substantial evidence. And you 
have followed that second standard, the substantial evidence 
case in Liu v. Ashcroft and Zhang v. Gonzales.
    My point I want to get to--and this will be the last thing 
I ask you--is if we know the system is broken, if we know that 
it doesn't give basic fairness and justice, do you not feel at 
your level that you have to be more sensitive to the fact that 
there are people's lives at stake here and that you have to 
take care when they are asking for asylum and protection in the 
United States not to let this broken system work to their 
detriment?
    Judge Alito. We do have to keep in mind just what's at 
stake, and I do that. I know that a lot is at stake in these 
cases, and I read the record to see if there is support for the 
arguments that are made by these petitioners. But I have no way 
of supplementing the record. And there are serious problems. 
One of the most serious problems, I think, is that the 
witnesses, the asylum seekers generally testify in another 
language. Sometimes it's a language that is not well 
represented in the population of the United States, so it may 
be difficult to get a translator. And the quality of the 
transcripts is often very poor, which makes it very difficult 
to understand what was going on before the immigration judge.
    Now, there have been cases where we've said the transcript 
here is so bad that we can't make a decision on this, and we 
will send it back.
    But there's the additional problem that the immigration 
judges are forced to make credibility determinations based on 
viewing someone who comes from a different culture, where 
mannerisms, gestures, facial expressions may mean something 
different than they do in our culture, and I'm aware of that. 
But these are bigger problems. These are problems for Congress 
to address. They're not problems that I can address in the 
context of deciding these particular cases.
    Senator Durbin. Thank you. I agree, and I thank you very 
much. And I finished in under 15 minutes, Mr. Chairman.
    Chairman Specter. Well, thank you very much, Senator 
Durbin. That is appreciated.
    Senator Graham? No comments. Wonderful.
    Chairman Specter. Senator Cornyn?
    Senator Cornyn?
    Senator Cornyn. I yield back my time.
    Chairman Specter. Doubly wonderful.
    We are going to be going into executive session when we 
finish, which will be just in a few moments, and we have 
attempted to notify all Senators, those not here, through 
staff. The purpose is to discuss in private any questions which 
arise as to--any questions anybody may have in mind as to Judge 
Alito. It doesn't suggest anything of substance, but we have 
adopted this practice since Justice Breyer's proceeding and do 
it as a matter of routine so that if there is something, by 
going into executive session we do not signal that there is 
something. And going into executive session does not mean, if 
there is something, that there is nothing, but it is routine. 
As I explained it, I am not quite sure why we do it, but we do 
it.
    [Laughter.]
    Chairman Specter. It doesn't take long if you do it before 
lunch.
    [Laughter.]
    Chairman Specter. There has been some suggestion we do it 
after lunch, and let me tell you, it would be a long session. 
But we are going to do it before lunch, and we are going to do 
it in the Committee hearing room, which has been swept--another 
unnecessary item because there is nothing to say in there. But 
that is our procedure.
    Now I yield to our distinguished Ranking Member, Senator 
Leahy.
    Senator Leahy. Thank you. Just briefly, Mr. Chairman, and 
you have been so courteous on this, I hate to even take this 
time. But in saying this, I want to make sure Judge Alito is 
here.
    When we started this, I actually started with the same 
subject I started with then-Judge Roberts, now Chief Justice. 
It is on the question of Presidential power, and whether he 
appreciates the role of the Supreme Court as a check and 
balance. As you know, I voted for him, and that is a leap of 
faith because nobody makes commitments on exactly how they are 
going to vote in one case or another.
    In this case, it has been pointed out you are to replace 
Justice Sandra Day O'Connor. Actually, initially Chief Justice 
Roberts was nominated for that. Then Harriet Miers was 
nominated. The President was forced by concerns within his own 
party to withdraw her, then nominated you very quickly after 
you had been--well, you had been interviewed once at the 
beginning of his term, but then you were interviewed again by 
Vice President Cheney and Karl Rove, Scooter Libby, I think a 
few others. And that is why I worry. I just wanted to make sure 
in my own mind that you would stand as a check and balance, for 
this President or any President.
    I know your concerns you expressed in the year 2000. You 
criticized the independent counsel law. So many times in the 
questions I have raised this issue, because I was afraid you 
would not act as a check and balance. We have a Government that 
is getting more and more powerful, in the electronic age 
especially powerful. We see illegal spying on Americans by 
Americans.
    All of us agree the President is not above the law any more 
than you are or I am. But it takes more than that, especially 
if we are giving the President the power unilaterally to 
redefine the law, an issue that is going eventually to come 
before you.
    So those are my concerns. I wanted you to know what my 
concerns are. They go beyond the other issues raised by Senator 
Specter or other Senators, though those are legitimate issues. 
But those are mine, and I wanted to say that to you personally.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Leahy.
    We were about to excuse you from any further participation 
in these proceedings, Judge Alito. I have been handed 
statistics which show that you have been questioned for about 
18 hours, the number of questions approximating some 700, and 
some differences of opinion as to the comprehensiveness of your 
responses. But Senators are entitled to their own views, and 
you will be hearing more when we conclude the hearings and 
later go into executive session for the Committee to vote and 
further on floor debate. But you have certainly demonstrated 
remarkable patience--I think everybody would agree with that--
and remarkable stamina and a very loyal family, led by your 
wife. And we thank you for your public service, and you may be 
assured that the Committee on both sides and all of the balance 
of our 100 Senators will give very, very careful consideration 
to the President's nomination of you for the Supreme Court.
    We will recess now and we will resume at--it is uncertain 
how long our session will be, so we will resume at 2:30 and we 
will begin with a report from the American Bar Association, and 
then we will move to witnesses from the Court of Appeals for 
the Third Circuit.
    Senator Leahy. Right now we are going to the closed--
    Chairman Specter. But now we are going to the Committee 
hearing room, Dirksen 226, for an executive session.
    [Whereupon, at 1:10 p.m., the Committee was recessed, to 
reconvene at 2:30 p.m., this same day.]
    Chairman Specter. The Judiciary Committee will now proceed 
with the confirmation hearing on Judge Samuel Alito for the 
Supreme Court of the United States.
    After our morning session, the Committee met in executive 
session and reviewed confidential data on the background of 
Judge Alito, and it was all found to be in order.
    We are now proceeding with the witnesses. The tradition of 
the outside witnesses, the independent witnesses, our tradition 
is to hear first from the American Bar Association and their 
evaluation of the judicial nominee.
    We have structured this portion of our hearing differently 
from what had been done prior to last year, and that is, where 
the majority took most of the outside witnesses. The tradition 
has been to have 30 witnesses, and the majority party had taken 
18, and the minority party 12, and it seemed that it would be 
more appropriate to have an even split, 15 and 15, and that is 
the practice we are following. And of course, the ABA 
representatives are not witnesses called by either Democrats or 
Republicans. We have really done our best to proceed in a 
nonpolitical way in the selection of a Supreme Court Justice. 
There can be different evaluations as to how successful we are 
in that, but that has been our effort.
    We have limited testimony to 5 minutes for outside 
witnesses. The next witness already nods in agreement. He was 
here not too long ago for Chief Justice Roberts. And we have 
established the 5-minute rule because we have 31 witnesses, and 
the Senate is not in session, and all the members of the 
Committee have other commitments. It is projected that we will 
finish today, but we will have to keep on schedule.
    We turn now to the American Bar Association panel, and we 
welcome Mr. Steve Tober, Ms. Marna Tucker, and Mr. John Payton. 
In accordance with the practice, the testimony will be given by 
Mr. Tober, who is the Chairman of the American Bar Association 
Standing Committee on the Federal Judiciary. He is an attorney 
with a law firm bearing his name, experienced in civil 
litigation, professional negligence and domestic relations; 
undergraduate and law degree from Syracuse University; on the 
board of the Law Review; deeply involved in New Hampshire and 
New England legal communities, former chairman of the Committee 
to Redraft New Hampshire's Rule on Professional Conduct.
    We know the laborious job involved, Mr. Tober, which you 
are about to describe, in reaching an evaluation of a Supreme 
Court nominee, and the importance of your judgment, so we thank 
you and Mr. Payton and Ms. Tucker for your public service.
    Now, Mr. Tober, the floor is yours.

  STATEMENT OF STEPHEN L. TOBER, ESQ., CHAIRMAN, AMERICAN BAR 
   ASSOCIATION STANDING COMMITTEE ON THE FEDERAL JUDICIARY, 
 PORTSMOUTH, NEW HAMPSHIRE; ACCOMPANIED BY MARNA TUCKER, ESQ., 
D.C. CIRCUIT REPRESENTATIVE, AMERICAN BAR ASSOCIATION STANDING 
COMMITTEE ON THE FEDERAL JUDICIARY, WASHINGTON, D.C.; AND JOHN 
  PAYTON, ESQ., FEDERAL CIRCUIT REPRESENTATIVE, AMERICAN BAR 
   ASSOCIATION STANDING COMMITTEE ON THE FEDERAL JUDICIARY, 
                        WASHINGTON, D.C.

    Mr. Tober. Thank you, Your Honor. Thank you, Mr. Chairman, 
members of the Committee. My name is Stephen L. Tober of 
Portsmouth, New Hampshire, and it is my privilege to chair the 
American Bar Association Standing Committee on the Federal 
Judiciary.
    I am indeed joined today by Marna Tucker, our D.C. Circuit 
Representative, and by John Payton, our Federal Circuit 
Representative.
    For well over 50 years the ABA Standing Committee has 
provided a unique and comprehensive examination of the 
professional qualifications of candidates for the Federal 
bench. It is composed of 15 distinguished lawyers who represent 
every judicial circuit in the United States, and who annually 
volunteer hundreds of hours of public service.
    Our committee conducts a thorough, nonpartisan, 
nonideological peer review, using well-established standards 
that measure a nominee's integrity, professional competence and 
judicial temperament.
    With respect to a nomination to the United States Supreme 
Court, the Standing Committee's investigation is based upon the 
premise that such a nominee must possess exceptional 
professional qualifications. The significance, range and 
complexity of issues that will be confronted on that Court 
demands no less. As such, our investigation of a Supreme Court 
nominee is more extensive and is procedurally different from 
others in two principal ways.
    First, all circuit members on the Standing Committee reach 
out to a wide range of individuals within their respective 
circuits who are most likely to have information regarding the 
nominee's professional qualifications. And second, reading 
groups of scholars and distinguished practitioners are formed 
to review the nominee's legal writings and advise the Standing 
Committee. The reading groups assist in evaluating the 
nominee's analytical skills, knowledge of the law, application 
of the facts to the law, and the ability to communicate 
effectively.
    In the case of Judge Alito, circuit members combined to 
contact well over 2,000 individuals throughout this Nation. 
Those contacts cut across virtually every demographic 
consideration, and it included judges, lawyers and members of 
the general community. Thereafter, circuit members interviewed 
more than 300 people who knew, had worked with, or had 
substantial knowledge of the nominee. All interviews regarding 
the nominee were fully confidential to assure the most candid 
of assessments.
    Judge Alito has created a substantial written record over 
his years of public service. Our three reading groups worked 
collaboratively to read and evaluate nearly 350 of his 
published opinions, several dozen of his unpublished opinions, 
a number of his Supreme Court oral argument transcripts and 
corresponding briefs, and other articles and legal memos.
    The academic reading groups were composed of distinguished 
faculty from the Syracuse University College of Law and from 
the Georgetown University Law Center. The practitioners group 
was composed of nationally recognized lawyers intimately 
familiar with demands of appellate practice at the highest 
level.
    Finally, as we do in any Standing Committee investigation, 
a personal interview was conducted with this nominee. Judge 
Alito met with the three of us on December 12th, and he 
provided us a full opportunity to review matters with him in 
detail.
    After the comprehensive investigation was completed, the 
findings were assembled into a detailed confidential report. 
Each member of the Standing Committee reviewed that final 
report thoroughly, and individually evaluated that nominee 
using three rating categories: well qualified, qualified and 
not qualified. Needless to say, to merit an evaluation of well 
qualified, the nominee must possess professional qualifications 
and achievements of the highest standing.
    During our investigation questions were raised concerning 
the nominee's recusal practice, and also concerning some 
aspects of his judicial temperament. We have carefully reviewed 
and resolved those questions to our satisfaction, as we have 
detailed in our accompanying correspondence to your Committee, 
which, Mr. Chairman, we ask to be made part of this record.
    Chairman Specter. Without objection, they will be made part 
of the record.
    Mr. Tober. We are ultimately persuaded that Judge Alito 
has, throughout his 15 years on the Federal bench, established 
a record of both proper judicial conduct and evenhanded 
application in seeking to do what is fundamentally fair.
    As such, on the basis of its comprehensive investigation, 
and with one recusal, the Standing Committee unanimously 
concluded that Judge Samuel A. Alito, Jr. is well qualified to 
serve as Associate Justice on the United States Supreme Court. 
His integrity, his professional competence and his judicial 
temperament are indeed found to be of the highest standard.
    Mr. Chairman, let me say once again what we noted here back 
in September. The goal of the ABA Standing Committee has always 
been and remains in concert with the goal of your Committee, to 
assure a qualified and independent judiciary for the American 
people. With that, thank you for the opportunity to present 
these remarks.
    [The prepared statement of Mr. Tober appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Tober, for your 
work and for ending right on the button, 5 minutes to a tee.
    Mr. Tober. I worked on that, sir.
    [Laughter.]
    Chairman Specter. That quality of yours would recommend you 
for Supreme Court argument, where Chief Justice Rehnquist 
stopped the speaker in mid-sentence, and the word from Judge 
Becker, who will testify later, he was looking for an 
opportunity--he stopped me in mid-sentence one day--and he was 
looking for an opportunity to stop a speaker in the middle of 
the word ``if,'' I did not give him that chance.
    [Laughter.]
    Chairman Specter. Before proceeding to questions, I want to 
yield to Senator Leahy, to see if he has any opening comments 
that he wants to make.
    Senator Leahy. I do not, Mr. Chairman. Thank you, though.
    Chairman Specter. We have 5-minute rounds for each of the 
members of the Committee.
    Mr. Tober, picking up on your testimony that you found 
Judge Alito to have evenhanded application of the law, how 
would you amplify that with respect to what kind of materials 
you have looked at, and what your evaluation was, and what led 
you to that conclusion?
    Mr. Tober. Be happy to, Mr. Chairman. The conclusion was 
reached in large measure in interviews with, as I said, well 
over 300 individuals around this country, over 130 of whom were 
Federal judges. Many were State judges. Many were colleagues, 
co-counsel, opposing counsel, who almost uniformly talked in 
terms of his even-handedness, of his open-mindedness, of his 
willingness to be fair. He is called ``a judge's judge'' more 
than once in those interviews.
    When we interviewed him we had questions that would have 
been on that issue, and we discussed that issue with him to get 
his own personal perspective on it, and we were satisfied with 
what we heard at that time.
    And perhaps it's best reflected in his writings, which 
again, I indicated the body of that work was read by our three 
reading groups collaboratively, and the conclusion that was 
reached, if you will, the overarching conclusion that was 
reached, is that this is a judge who brings pragmatic skills to 
his decisionmaking. We discussed that with him in that 
interview that we had on December 12th. He tried to do what he 
thinks is right with respect to the application of the law that 
is before him. He took us through how he analyzes that 
approach, up to the point that when he is just about ready to 
release his decision, he looks back once again at the law to 
make sure he has not misapprehended something in the first 
instance, and second, to make sure that the outcome is fair. 
That to me suggests--
    Chairman Specter. You say he came back to you twice?
    Mr. Tober. I am sorry?
    Chairman Specter. Was your testimony that he came back to 
you? What did you mean when he came back and took another look.
    Mr. Tober. He would look at his draft opinion, Mr. 
Chairman, before it would be issued, and he would look back at 
the law that he was applying in that opinion and the outcome 
that was occurring in that opinion, just to justify in his mind 
one more time that the outcome would be fair.
    Chairman Specter. Did your group study all of his opinions?
    Mr. Tober. The reading groups read 350 of his published 
opinions, scores of his unpublished opinions and other 
materials, yes.
    Chairman Specter. And did they make any analysis of--an 
issue has been raised as to whether Judge Alito unduly favored 
the powerful or the Government. Did your ABA analysis reach 
that issue?
    Mr. Tober. That issue was one that we looked at, and we 
discussed it in our letter of evaluation, and I gave some 
examples of some of the disparate results that we were told 
about. One of the reading groups reported to us that they could 
not reach a full conclusion on whether or not it was some 
attempt to favor one outcome for a group of litigants over 
another. And while there were a couple of members in a couple 
other reading groups that may have said the same thing in so 
many words, there were a significant number of other 
individuals in the reading groups who said they couldn't find 
any such evidence of that. It was inconclusive with respect to 
the reading groups.
    What was of interest in the reading group reports to us was 
a comment that was echoed by others, which is that in looking 
for a sense of partiality in the opinions, the conclusion that 
was left very often was one of pragmatism, that--
    Chairman Specter. Let me interrupt you, because my time is 
almost up, to ask you to clarify what was inconclusive in your 
studies.
    Mr. Tober. It was inconclusive whether or not there were 
certain categories of parties who might have come out at the 
wrong end of Judge Alito's opinions.
    Chairman Specter. Did some of those readers find that he 
was impartial and some find the contrary?
    Mr. Tober. My understanding is it was inconclusive. We did 
not receive any clarion call at one point that he was 
representing or suggesting to have a bias against any 
particular group of litigants before him.
    Chairman Specter. A considerable amount of attention has 
been paid in these hearings to the recusal issue of Vanguard. 
Would you comment on what your committee found there?
    Mr. Tober. I am going to defer to Mr. Payton, who took the 
lead on the Vanguard-related issues, if that is OK with the 
Chairman.
    Chairman Specter. Mr. Payton?
    Mr. Payton. We certainly looked into all of the recusal 
issues. We asked Judge Alito in some detail about how the 
Vanguard and the other recusal issues came about. But let me 
put this in some context which I think will be helpful.
    In the materials that Judge Alito submitted to this 
Committee, he attached a list of all of the cases from which he 
had been recused over his 15-year tenure, and that is 40 pages 
long, with about 30 to 35 cases per page. It is well over a 
thousand cases from which he was recused.
    Among those cases that he was recused from were cases 
involving Vanguard in 1992, cases involving his sister's law 
firm throughout the tenure, cases involving the U.S. Attorney's 
Office throughout the tenure, cases involving the other 
entities that he had identified in his representation to this 
Committee back in 1990.
    A few cases, in fact, slipped through, and that has been 
the subject of our inquiries and some of the testimony before 
this Committee. We asked him how that came about. He explained 
how he thought it came about, but I think it is fair to say he 
was not certain how they slipped through, whether it was 
through the screen, whether it was because they were pro se 
cases.
    In the end, he did acknowledge that it was his 
responsibility that a mistake and error had been made, those 
cases should have been caught, and he should have not heard 
those cases. We listened quite carefully to all of that, and in 
the context in which we understood how this came about, we 
accepted his explanation that he simply had made a mistake. 
These cases should not have slipped through the screen, just 
like the other thousand or so cases were captured by the screen 
in the process, but they did. They shouldn't have. And we think 
that did not reflect in any significant degree on his 
integrity.
    Let me tell you something else we did that goes to both of 
your questions, Mr. Chairman. We also interviewed an incredibly 
broad array of judges--virtually all of the members of the 
Third Circuit, virtually all of the district judges that were 
in New Jersey and were in Philadelphia. We interviewed a number 
of the other judges in the Third Circuit who were on the 
district court who had contact with Judge Alito. And what we 
learned from them almost unanimously was that he is held in 
incredibly high regard with respect to the issues that this 
committee, the ABA's committee, looks at: his integrity, his 
judicial competence, and his judicial temperament. And on the 
issue of the recusals, everyone--everyone--thought that he has 
the highest integrity and that these few cases that slipped 
through do not diminish his integrity.
    Chairman Specter. Thank you, Mr. Payton.
    The red light went on during the course of your testimony, 
so I will terminate and yield to my colleague, Senator Leahy.
    Senator Leahy. Just to followup on that, on Vanguard, the 
only reason I even mention this is that the initial explanation 
from Judge Alito and the White House after his nomination was a 
computer glitch had precipitated the Vanguard case. But then he 
answered some questions from Senator Feingold by saying that in 
the Monga case it wasn't a computer glitch that caused his 
failure to submit Vanguard to the clerk of the court. Then he 
said when it came before him, he was not focused. Since your 
report was filed, we have learned that Judge Alito did not have 
Vanguard on his recusal list as far back as 1993, 
notwithstanding the fact that in 1990 he had given a sworn 
statement to the Committee that he would recuse.
    Some of that information came after your report. Would it 
change anything in the conclusion?
    Mr. Payton. I think that it is--like I said, from the 
interview with him, I am not sure we figured out what caused 
these cases to slip through. I am not sure Judge Alito knew the 
precise answer to that. But he did acknowledge that it was a 
mistake.
    On what was on his standing recusal list, I don't know what 
was on his standing recusal list, but I just note in the 
materials that were submitted to this committee, there is a 
1992 entry of an entity that has the name Vanguard in it--it is 
Vanguard--that says, ``Recusal because on standing recusal 
list.''
    I don't know what happened in 1993. I don't know if things 
went on and went off. Something went wrong here, and these 
cases came before him, and they shouldn't have. But they are a 
very small number in a huge universe of cases from which he was 
recused.
    Mr. Tober. Senator, may I add to that very briefly.
    Senator Leahy. Sure.
    Mr. Tober. We did not find in the vast number of our 
interviews and the review with the nominee and any other 
extrinsic information we could look at any pattern of 
intentional effort to try and have Judge Alito impose himself 
in cases in which he did not belong. We are persuaded that some 
errors were made, some mistakes were made, and they total up to 
a small handful.
    In the course of the numbers that he has been sitting on--
and I believe Senator Hatch suggested yesterday some 4,000 or 
5,000 cases have been adjudicated involving Judge Alito--we 
took that into context, particularly in light of the comments 
from individuals who know him and work with him, with respect 
to the ethics he brings to the position.
    Senator Leahy. You understand the reason this became an 
issue here is because it was based on a sworn statement that he 
recuse.
    You also looked into his open-mindedness, his commitment to 
equal justice. I am just asking, in doing that--because I have 
never served on one of these committees that you are on. There 
have been a number of studies of the judge's record--Knight-
Ridder, the Washington Post, Cass Sunstein and others--and they 
have concluded that he had much more likelihood of siding 
against discrimination plaintiffs than other circuit judges. 
Knight-Ridder reviewed 311 of his published opinions and found 
that he seldom sided with a criminal defendant, a foreign 
national facing deportation, an employee alleging 
discrimination, or a consumer suing Big Business. And his 
record stood out significantly from others in the circuit.
    Did this question come in on the issue of whether he was 
compassionate?
    Mr. Tober. The answer is yes, we looked at that. Our 
reading groups looked at it for us. We discussed it with the 
nominee in our interview on December 12th. We are not immune 
from the media stories that have been available. I suggest 
everybody on my committee has been watching the last 3 days 
very carefully. We are where we started with that issue, and 
that is, the over 300 people we spoke with who know this person 
as a judge, as an individual, are convinced that he has an open 
mind, that he does not bring any bias to his decisionmaking.
    Senator Leahy. And, last, on the issue of CAP, nobody is 
suggesting a bias on his part, but what bothers me, when you 
are doing a job application in 1985--we know Judge Alito is a 
very careful person, and I mean that as a compliment. On a 
carefully put together job application, he proudly proclaims 
his membership in CAP, a group that was very much dedicated to 
keeping minorities and women out of Princeton, one that would 
probably look unkindly toward either Judge Alito's Italian 
ancestors or my Italian ancestors. Was this just pandering to 
the Meese and the Reagan administration, or was this just a 
total screw-up?
    Mr. Tober. May I defer to Ms. Tucker with that?
    Senator Leahy. Sure.
    Ms. Tucker. We looked at that question, Senator. We were 
very concerned about that listing, knowing that membership in 
that organization would put him perhaps on an extreme that we 
would be uncomfortable with. His answers to our committee were 
very similar, if not identical, to the answers to your 
Committee.
    He did not recall when he became a member or even what he 
did, but he didn't recall ever attending any meetings or 
reading any publications. He did recall that he joined the 
organization because of the university's attempt to remove 
ROTC--
    Senator Leahy. But that is not really my question. Was 
there any question of why--why was he so proud of this that he 
would put it in a 1985 job opplication--when everybody--
everybody--knew what kind of an organization it was, where 
Senator Bill Frist had condemned it and Senator Bill Bradley 
had. Did you ask why he proudly put that on his application?
    Ms. Tucker. We asked him why he put that on there. We 
didn't ask him why he proudly put that on there. But he stated 
that he recalled he was a member. We specifically asked him if 
this was to--since it was a job application, was he pandering, 
and he said it would be improper to not tell the truth on an 
application, that he was a member of that organization. But 
there were only two organization that he listed, as I recall, 
on that application: one was the Federalist Society, the other 
was the Concerned Alumni for Princeton. He did not have a long 
list of activities at that time.
    But I should say, in fairness, we were very concerned about 
the membership of that and what happened, and all of the people 
we spoke to on the courts, women and minorities, people who he 
had worked with, people who had sat on panels with him side by 
side in issuing judicial opinions, almost universally said that 
they saw no bigotry, no prejudice. They thought he was a fair 
man. And they felt that if he did put that--they were shocked 
when they heard that that was listed on his application. And 
they said, ``That is not the Sam Alito we know.'' And we heard 
that time and time again.
    Senator Leahy. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Mr. Tober. Thank 
you, Ms. Tucker. Thank you, Mr. Payton.
    Senator Hatch?
    Senator Hatch. I will reserve my time. Thank you.
    Chairman Specter. Thank you.
    Senator Kennedy?
    Senator Kennedy. Thank you very much.
    Did you know, Mr. Tober, that the Vanguard Ventron, which 
is the case of 1992, actually involved the carpenters? It names 
the carpenters which were on the Alito list for recusal, and--
Mr. Payton, maybe this should be directed to you--and that most 
of the people that have looked through there in detail feel 
that the reason that that was actually recused is because of 
the carpenters. I think it is spelled carpenteers--yes, c-a-r-
p-e-n--carpenter, and that is the reason it was under the name 
of the Vanguard. You are familiar with that?
    Mr. Payton. Yes. I simply thought that it was unclear 
whether or not what would have caused that to be kicked off 
because of the standing recusal list was any hit with Vanguard 
or something else. It is unclear. You cannot tell from what is 
there.
    Senator Kennedy. Did the committee know, when it inquired 
of the nominee, that Judge Alito had made a promise to the 
Committee under oath that he was going to recuse himself from 
Vanguard?
    Mr. Payton. Yes, and we asked him about that.
    Senator Kennedy. And did he indicate what--well, what was 
his response?
    Mr. Payton. His response was that it was a mistake for 
those cases to have slipped through. That was not just a 
question about what the code said, but also what his 
representation to this Committee encompassed, that it was a 
mistake.
    Senator Kennedy. Was the mistake, as you understand it, is 
because he did not, for one reason or another, neglected to put 
the Vanguard on his recusal list?
    Mr. Payton. No, I do not think I could say it that 
concretely. The mistake was that it got through. Why it got 
through, I think it was not completely clear to us, and I am 
not sure it was clear to Judge Alito. It got through.
    Senator Kennedy. It was not on his 1993, 1994, 1995, 1996 
list, and the 1993 said no changes were made from 1992. So 
there is just 1 year, year and a half. We do not have the 
record on it, and I am just wondering, in your inquiry and 
review of that case, since that is the principal source of, as 
I understand it, of revenue. I mean it has had sizable 
increases in the revenue from the time he took that oath till 
the more recent years. So that is one of the factors on it. I 
was just interested, when he said it was a mistake, whether you 
made a determination, detection, because we have not been able 
to find that it was ever put on. Quite frankly, at least as a 
member of the Committee, we have heard a number of reasons for 
it. We have heard computer glitch. We have heard that it was an 
interim pledge and a commitment. We have heard that it was a 
pro se case and, therefore, the computers do not exist in the 
Third Circuit the way they do in law firms here in Washington, 
D.C. I am just trying to find out what was told to you.
    To be very honest about it, if it had been said it was a 
mistake in the very beginning, I do not even think this issue 
would have taken more than 30 seconds of the Committee's time, 
but since we have had so many different reasons for it, which 
we have been trying to ascertain exactly what had happened, and 
particularly since it was a pledge to the Committee and it was 
a sworn statement to the Committee, that we are wondering what 
the Bar Association, in its interview--
    Mr. Payton. I do not know the answer to your question. I do 
not believe that what you just said about what was on the list 
in 1993-94 was known then. I was unaware of that, and I am not 
sure Judge Alito knew that. But in our discussion with him, we 
actually cut right through that and simply wanted him to tell 
us if he agreed this was a mistake. Did you just miss it? 
``Yes, I just missed it. It was a mistake.'' The why then sort 
of became less significant.
    Senator Kennedy. Well, of course, Mr. Payton, he did. He 
took, during that same period of time, he took a name off the 
list, so he must have been familiar with it. He took the U.S. 
Attorney's name off the list. We went through this. I would be 
glad to make available to you--you indicated that you had gone 
through the hearings on this, and I welcome the opportunity 
just to make available to you the same material, and to get 
your response.
    Mr. Tober. Senator, we indicated in our letter of 
explanation, as we always do, that we continue to monitor these 
proceedings, and we will be happy to revisit anything the 
Committee wishes us to look at.
    Senator Kennedy. I want to join in thanking you for the 
service of the Bar Association. This is a very challenging and 
in many sense, a thankless job. But I think the country is much 
better off. So it judiciary. I thank you for your service.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Hatch has stated an interest in regaining some of 
his reserve time.
    Senator Hatch. Just shortly. We appreciate the efforts that 
you make. We appreciate what the Bar Association is doing, and 
we appreciate what you have done in this particular case as 
well.
    Frankly, he did state right off the bat, early in his 
testimony, that he had made a mistake with regard to the 
Vanguard matter. On the other hand, are you aware that not only 
did he recuse himself once he realized he had made a mistake, 
but he asked the succeeding panel to retry the case. Are you 
aware of that?
    Mr. Tober. Yes.
    Mr. Payton. Yes.
    Senator Hatch. Was that an appropriate thing to do?
    Mr. Payton. He asked that the Chief Judge identify a new 
panel, and I think that was the appropriate thing to do.
    Senator Hatch. That is what an honest, decent judge would 
do, is it not?
    Mr. Tober. Sure, of course.
    Senator Hatch. You are all aware of this 28 USC, the U.S. 
Code statute on this, am I correct?
    Mr. Tober. Correct.
    Senator Hatch. I mean that statute defines a financial 
interest for the courts. It says, ``Financial interest means 
ownership of a legal or equitable interest, however small, or a 
relationship as director, adviser, or other active participant 
in the affairs of a party, except that ownership in a mutual or 
a common investment fund that holds securities is not a 
``financial interest'' in such securities, unless the judge 
participates in the management of the fund.'' Are you aware of 
that?
    Mr. Payton. Yes.
    Senator Hatch. Now, did he participate in the management of 
the fund?
    The answer is no. Then if he did not participate in the 
management of the fund, would he have had, under normal 
circumstances, to recuse himself?
    Mr. Payton. I think the normal circumstances is amplified 
by the representation to this Committee, which he acknowledged, 
independent of the obligation that you are talking about, would 
have caused him to not want these cases to come before him.
    Senator Hatch. Right. But he made it clear that once he did 
realize that there was a mistake, even though he did not, 
according to this U.S. Code which is the basis, did not have to 
recuse himself, he did so because he had said in his statement 
that he would.
    Mr. Payton. Yes, sir.
    Senator Hatch. And you knew that. And so, I take it, you do 
not find any real fault in the way he handled the Vanguard 
matter?
    Mr. Tober. That is so.
    Mr. Payton. That is correct.
    Senator Hatch. That is correct?
    Mr. Payton. That is correct.
    Senator Hatch. Thank you so much.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Feinstein?
    Senator Feinstein. Thank you very much for your service. 
Have you heard anything in these hearings that would cause you 
any concern or reason to change any of your views?
    Mr. Tober. Well, the hearings are still going and I am 
still listening. But to the moment, Senator, I have been 
looking for any kind of material or discordant statement that 
would have been inconsistent with anything that we have learned 
or heard either through our interviews or our meeting with the 
nominee, and to the moment I am still comfortable that we 
understood the judicial and legal profile of Judge Alito when 
we reached our rating.
    Senator Feinstein. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Feinstein.
    Senator Kyl?
    Senator Kyl. Mr. Chairman, I do not have any questions, but 
I would like to thank the panel and the Bar Association for 
its, I wonder, how many hours of work put into verifying the 
qualifications of nominees, not just for the Supreme Court, but 
the other nominations, and particularly, Mr. Payton, your 
explanation of the matters that you testified to here. Thank 
you very, very much.
    Chairman Specter. Senator DeWine?
    Senator DeWine. No questions, Mr. Chairman.
    Chairman Specter. Senator Sessions?
    Senator Sessions. Mr. Tober, you have 15 members of your 
committee that goes out, and they divide up the work and 
interview 300 individuals; is that what you did?
    Mr. Tober. As it turned out, Senator, the Chair just gets 
into a lot of marshaling, and the Third Circuit representative 
had to recuse herself because she had argued a case before a 
panel that Judge Alito had served on before he had been 
nominated, and the decision had yet to come down, so she, by 
our standards, removed herself. So I had 13 people out in the 
field, interviewing well over 300 people, contacting over 2,000 
people, putting together their own written reports, marshaling 
the information from every corner and putting it in what turned 
out to be an 11-pound report. And when I first received it, as 
I told Ms. Tucker, I did not know whether to read it or send 
out birth announcements.
    Senator Sessions. We are glad you do not have to do 
background work on Senators.
    [Laughter.]
    Mr. Tober. We are pleased it is done for the moment.
    Senator Sessions. One of the things, you know, some of us 
have complained about the ABA ratings, but there is so much 
value to it, it strikes me, because is it not true that 
sometimes when you are interviewing a lawyer that has been 
before the judge, or lost a case, a lawyer who has litigated 
against him, they will tell you things they may not come 
forward and say publicly, and that you can get a good--you feel 
like you get a better perspective on a nominee's professional 
qualifications than you can get from reading the newspaper 
perhaps?
    Mr. Tober. Thank you for that question. Let me try and 
answer it. The answer is yes. We have had the experience since 
1948, when we started reporting our ratings to this Committee, 
of being able to get comprehensive confidential information 
from people who know the nominee directly in the trenches, 
whether it be a judge, a lawyer or other people in the 
community, and we are able to ask them with respect to 
integrity, professional competence and judicial temperament, 
with the full and complete understanding that there will be no 
attribution, there will be no embarrassment, that if it is 
important we need to know, and people indeed give us that kind 
of information. So, yes, it is a remarkable process, and if I 
have a moment, I would like to say it is a remarkable group of 
people that I have had the privilege to work with.
    Senator Sessions. And, Mr. Payton, you used the phrase that 
they held him in incredibly high regard. I think you are a 
premier litigator, you have argued before the Supreme Court. I 
am sure you used those words carefully.
    Mr. Payton. I did.
    Senator Sessions. I thank you for your service, and I think 
it has provided valuable insight to the Committee because you 
see these things out there, and it is important for the 
American people to know what do the people who really know and 
work with this judge think about him, and we value your 
comments.
    Mr. Payton. Thank you.
    Chairman Specter. Thank you, Senator Sessions.
    Senator Graham?
    Senator Graham. Thank you, Mr. Chairman.
    I would just like to echo what my colleagues have said 
about the service you are providing not only to the Committee, 
but I think the country, because most people in the country are 
not lawyers. That is probably a good thing.
    The idea of who you are getting as a person is important, 
and the homework you have done gives us a good picture of this 
particular man. But his judicial experience, compared to other 
people that you have reviewed, seems to me that being on the 
court for 15 years, you had a lot to look at.
    Mr. Tober. Well, we do not compare one nominee to another, 
Senator, as I am sure you can appreciate. But I will take the 
direct question, and indeed, I believe we said in our letter of 
evaluation that he has created an enormous record of public 
service, and his writings speak top that, and that is indeed 
what we have reviewed.
    Senator Graham. Thank you. About your rating, you know, we 
are all very pleased to the outcome here, but democracy is 
about a process, not an outcome. The rule of law is about a 
process, not an outcome. There may be an occasion where you 
will render a writing I will not agree with, and that is just 
the way it goes. But I think the process where you are involved 
really helps us a lot. I think it helps the country, and I 
appreciate the time you have taken from your families, from 
your business to do it.
    Now, what may take normal people 30 seconds to figure out 
may take the Senate 3 days--
    [Laughter.]
    Senator Graham.--but we are going to ask one simple 
question about Vanguard. With this much material to have dealt 
with, and as many cases as he has heard, the first question for 
me about Judge Alito is, who am I getting here? Is an innocent 
mistake OK? I hope so because I make them all the time. What 
would I not want? I would not want someone who is into self-
dealing. I would not want someone who skirts the ethical rules 
and plays as close to the line as they could. Would it be a 
fair statement that Judge Alito never plays close to the line, 
he tries to do it the best he can, to take the highest approach 
to ethics?
    Mr. Payton. I think that from what his colleagues who know 
him very well would say, is that they hold him in the highest 
regard with respect to his integrity, and I think that 
encompasses what you just said.
    Senator Graham. Thank you very much. One last thought about 
Vanguard. What is in it for him to intentionally hear the case 
knowing that he should not? I have never found anybody that 
could give me a reason why this judge would make an intentional 
decision to avoid recusal when he should. Have you found a 
reason?
    Mr. Payton. I actually am unaware of anyone who has claimed 
that he intentionally did this. It was a mistake.
    Senator Graham. And there is no benefit one could find for 
him intentionally doing it, based on the nature of the case.
    Mr. Payton. I am not aware of one.
    Senator Graham. Thank you all.
    Mr. Tober. Senator, if I could just add, I believe it was 
Professor Rotunda who submitted a report to this Committee, and 
I think there was a line in there that caught my attention. He 
said ``Reasonable people can make reasonable mistakes.'' And I 
think that captures what we thought we found, and when we spoke 
to Judge Alito about it, we were convinced that indeed that 
happened.
    Senator Graham. Again, thank you for your service.
    Chairman Specter. Thank you, Senator Graham.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman.
    I just have a brief question because we have heard a lot 
about the ABA rating, which is something that is prized and 
important. Your sheet here says it describes three qualities: 
integrity, professional competence, judicial temperament. Is 
that right?
    Mr. Tober. That is correct.
    Senator Schumer. So it would not at all get into what 
somebody's judicial philosophy would be, is that correct?
    Mr. Tober. That is also correct.
    Senator Schumer. And so if somebody were very far right or 
very far left, as long as they had integrity, professional 
competence or judicial temperament, you would give them--that 
is what you would rate them on?
    Mr. Tober. Senator, we do not do politics. What we do is 
integrity, professional competence and judicial temperament. 
They are objective standards and that is what we bring to this 
Committee.
    Senator Schumer. And if one standard was, however one 
defined it, if somebody was out of the mainstream, again, your 
rating would not give us any inclination whether that was part 
of it?
    Mr. Tober. If the suggestion was that they were out of the 
mainstream politically, That is correct. If they are out of the 
mainstream in terms of their judicial temperament, we might 
have a different thought.
    Senator Schumer. Thank you.
    Chairman Specter. Thank you very much, Mr. Tober, Ms. 
Tucker, Mr. Payton. We very much appreciate your service and 
your being here today.
    Mr. Tober. Thank you.
    Chairman Specter. We next call the next panel--Judge 
Becker, Judge Scirica, Judge Barry, Judge Aldisert. Judge Garth 
will be coming to us electronically, but he appears on the 
screen. Welcome, Judge Garth. And Judge Gibbons and Judge 
Lewis.
    Pardon me. Senator Coburn, do you have questions of the 
ABA?
    Senator Coburn. No, Mr. Chairman.
    Senator Sessions. AMA, he would like to ask.
    Chairman Specter. I begin by welcoming the judges. By way 
of a brief introduction, I think it is worthy of comment how 
this panel came to be invited. Judge Becker was in my offices 
because since August of 2003 he has been performing mediation 
services on asbestos reform legislation, more than 40 meetings 
in a very, very tough legislative approach. And he was in my 
office last December, at a time when I was being interviewed by 
Kathy Kiley, of USA Today.
    And I introduced Judge Becker to Ms. Kiley, who asked him 
about Judge Alito. And without objection, I would like to make 
a part of the record the article which Ms. Kiley wrote for USA 
Today, dated December 14, 2005, which contains Judge Becker's 
comments about Judge Alito.
    After that, I discussed with Judge Becker the possibility 
of his being a witness for Judge Alito. And after some 
discussions, Judge Becker checked out the various 
considerations and said he would be willing to do so if invited 
by the Committee. And then Judge Becker talked to the other 
judges who are here today, who also stated a willingness to 
appear, if invited by the Committee, and I then sent them 
formal letters of invitation.
    Now, to the judges. Judge Becker is a graduate of the 
University of Pennsylvania, 1954; Yale Law School, 1957; 
appointed by President Reagan to the district court in 1970 and 
to the Court of Appeals for the Third Circuit in 1981. He has 
really been performing services as the 101st Senator, and by 
way of full disclosure I have known Judge Becker since the fall 
of 1950, when he was a freshman at the University of 
Pennsylvania and I was a senior, and we have been good friends 
ever since.
    Judge Becker, thank you for your service to the United 
States in so many capacities.
    Judge Becker. Thank you, Mr. Chairman.
    Chairman Specter. We have a procedure for five minutes. I 
don't intend to bang the gavel on any of you judges, and not 
because you are judges, but because my gavel is almost broken.
    Judge Becker.

  STATEMENT OF EDWARD R. BECKER, SENIOR JUDGE, U.S. COURT OF 
   APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA

    Judge Becker. Mr. Chairman, Senator Leahy and other members 
of the Committee, Sam Alito became my colleague when he joined 
our court in 1990. Since that time, we have sat on over a 
thousand cases together, and I have therefore come to know him 
well as a judge and as a human being.
    Many do not fully understand the intensity of the 
intellectual and personal relationship among appellate judges. 
We always sit together in panels of three and, in the course of 
deciding and writing up cases, engage in the most rigorous 
dialog with each other. The great violinist Isaac Stern, 
describing an afternoon of chamber music, once opined that 
after such a session, one knows his fellow quartet members 
better than a man knows his wife after 30 years of marriage.
    Now, this analogy, hyperbole aside, vividly describes the 
intense relationship among appellate judges. I therefore 
believe myself to be a good judge of the four matters that I 
think are the central focus of this Committee as it decides 
whether to consent to this nomination--Sam Alito's temperament, 
his integrity, his intellect and his approach to the law.
    First, temperament. Sam Alito is a wonderful human being. 
He is gentle, considerate, unfailingly polite, decent, kind, 
patient and generous. He is modest and self-effacing. He shuns 
praise. When he had completed his tenth year of service on our 
court, Sam declined my offer extended as chief judge--I was 
then the chief judge of the court--to arrange the usual party 
to observe 10-year anniversaries. Sam was uncomfortable at the 
prospect of encomiums to his service.
    Sam has never succumbed to the lure of big-city lights. He 
has a sense of place, which for him is not nearby New York 
City, but New Jersey, which to him has always been home.
    Finally, there is an aspect of appellate judging that no 
one gets to see, no one but the judges themselves--how they 
behave in conference after oral argument, at which point the 
case is decided, and which I submit is the most critically 
important phase of the appellate judicial process.
    In hundreds of conferences, I have never once heard Sam 
raise his voice, express anger or sarcasm, or even try to 
proselytize. Rather, he expresses his views in measured and 
tempered tones.
    Second, integrity. Sam Alito is the soul of honor. I have 
never seen a chink in the armor of his integrity, which I view 
as total. That opinion is not undermined by the furor over the 
Vanguard issue, by which I remain baffled. My wife holds 
Vanguard mutual shares which I report on my financial 
disclosure form. However, I do not identify Vanguard on my 
recusal list because I am satisfied that my wife possesses no 
ownership interest in the Vanguard Management Company, which is 
what controls the recusal determination. She has never received 
a proxy statement, an opportunity to vote for directors, or any 
indicia of ownership, other than her aliquot share and the fund 
to the extent of her investment. I believe that the view of 
Dean Rotunda which is in your record explains why Judge Alito 
was not required under the law to recuse himself in the suit 
against Vanguard.
    Third, intellect. Judge Alito's intellect is of a very high 
order. He is brilliant, he is highly analytical, and meticulous 
and careful in his comments and his written work. He is a 
wonderful partner in dialog. He will think of things his 
colleagues have missed. He is not doctrinaire, but rather is 
open to differing views and will often change his mind in light 
of the views of a colleague. Contrary to some reports, Sam does 
not dissent often. According to our court statistics, in the 
last 6 years he has dissented only 16 times, a little over two 
cases per year. That is the same number that I have dissented, 
and fewer than a number of our colleagues.
    In my view, Sam Alito has the intellect to sit on the 
Supreme Court. I know all of its members. I know them 
reasonably well, and in my view he will be a strong and 
independent Justice, his own man. Finally, Sam's intellect is 
not abstract, but practical. He does not mistake the obscure 
for the profound.
    Fourth, approach to the law. As I address this topic, I am 
acutely aware of the deep concern of the members of the 
Committee about this subject. I am also aware that my role here 
is to testify to fact, not to opinion, and hence I will express 
neither normative or predictive judgments.
    The Sam Alito that I have sat with for 15 years is not an 
ideologue. He is not a movement person. He is a real judge 
deciding each case on the facts and the law, not on his 
personal views, whatever they may be. He scrupulously adheres 
to precedent. I have never seen him exhibit a bias against any 
class of litigation or litigants.
    He was a career prosecutor, but in the numerous criminal 
cases on which we have sat together, if the evidence was 
insufficient or the search was flawed, he would vote to 
overturn the conviction. And if the record did not support 
summary judgment against the plaintiff in an employment 
discrimination or civil rights case, he would vote to reverse. 
His credo has always been fairness.
    Now, I know that there has been controversy about certain 
ideological views expressed in some 20-year-old memos. Whatever 
these views may be, his judging does not reflect them. I think 
that the public does not understand what happens when you 
become a judge. When you take that judicial oath, you become a 
different person. You decide cases not to reach the result that 
you would like, but based on what the facts and the law 
command. What you decide as a judge are not general principles, 
but the case in front of you. You do it as narrowly as 
possible. That is what Sam always does, with great respect for 
precedent. Sam Alito has been faithful to that judicial oath.
    Now, my final point relates to another facet of his 
approach to the law, and the best calipers that I could find to 
measure his approach to the law was to compare it with my own. 
I have been a Federal judge for 35 years, one week and one day. 
My opinions would fill many book shelves, but I think that I am 
fairly viewed as a mainstream or centrist judge.
    A computer survey run by our court librarian received 1,050 
opinions in cases on which Sam Alito and I sat together. In 
these cases, we disagreed 27 times, which is probably about the 
same number that I would have disagreed with most other 
colleagues. Some cases turned on a reading of the record, 
others on how rigorously or flexibly we interpreted the reach 
of a statutory or constitutional provision or a State court's 
jurisprudence, or applied our usually deferential standard of 
review. But in every case on which we differed, Sam's position 
was closely reasoned and supportable either by the record or by 
his interpretation of the law, or both.
    The short of it, members of the Committee, is that Sam 
Alito is a superb judge in terms of temperament, integrity and 
intellect, and he has exhibited a careful, temperate, case-by-
case approach to the law.
    Thank you for the opportunity to address you.
    [The prepared statement of Judge Becker appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Judge Becker. We now 
turn to Chief Judge Anthony Scirica, who, like Judge Becker, 
has known Judge Alito on the Third Circuit for the 15 years of 
Judge Alito's service there. Judge Scirica became Chief Judge 
in May of 2003, succeeding Chief Judge Edward Becker.
    Judge Scirica has a bachelor's degree from Wesleyan, 1962; 
Michigan Law School, 1965; appointed to the district court by 
President Reagan in 1984, and to the circuit court also by 
President Reagan in 1987.
    Thank you very much for coming in, Judge Scirica, and we 
look forward to your testimony.

  STATEMENT OF ANTHONY J. SCIRICA, CHIEF JUDGE, U.S. COURT OF 
   APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA

    Judge Scirica. Mr. Chairman, thank you very much. For the 
last 15 years, I have worked with Judge Alito. For 15 years, we 
have decided thousands of cases while serving on the same court 
of appeals. On most cases, we have agreed, but not always. 
Judges don't always agree on every case.
    As the Chief Justice remarked last summer, much like a 
baseball umpire, a judge calls balls and strikes. If the pitch 
is down the middle or way outside, the call is straightforward, 
but many pitches are on the corners and then the calls are 
difficult. These cases require hard thought, and these are the 
cases where a judge earns his or her keep.
    In 15 years on the court of appeals, Judge Alito has more 
than earned his keep. He is a thoughtful, careful, principled 
judge who is guided by a deep and abiding respect for the rule 
of law. He is intellectually honest, he is fair, he is ethical. 
He has the intellect, the integrity, the compassion and the 
judicial temperament that are the hallmarks of an outstanding 
judge.
    On three separate occasions, I spoke with the 
representative of the American Bar Association during its 
evaluation process. My views and those of my colleagues on the 
court were sought by the American Bar Association because we 
have a unique perspective on Judge Alito, a perspective that no 
one else has. Anyone can read and interpret his opinions, but 
we know Judge Alito from almost daily contact over a period of 
years. We have sat together in the same conference room. We 
have discussed the cases, we have decided them, and we have 
exchanged legal memoranda.
    Judge Alito approaches each case with an open mind and 
determines the proper application of the relevant law to the 
facts at hand. He has a deep respect for precedent. His 
reasoning is scrupulous and meticulous. He does not reach out 
to decide issues that are not presented in the case. His 
personal views, whatever they might be, do not jeopardize the 
independence of his legal reasoning or his capacity to approach 
each issue with an open mind. Like a good judge, he considers 
and deliberates before drawing a conclusion.
    I have never seen signs of a pre-determined outcome or 
view, nor have I seen him express impatience with litigants or 
with colleagues with whom he may ultimately disagree. He is 
attentive and respectful of all views, and is keenly aware that 
judicial decisions are not academic exercises, but have far-
reaching consequences on people's lives.
    We admire him as a person. Despite his extraordinary 
talents and accomplishments, Judge Alito is modest and 
unassuming. His thoughtful and inquiring mind, so evident in 
his opinions, is equally evident in his personal relationships. 
He is concerned and interested in the lives of those around 
him. He has an impeccable work ethic, but he takes the time to 
be a thoughtful friend to his colleagues.
    He treats everyone on our court and everyone on our court 
staff with respect, with dignity, and with compassion. He is 
committed to his country and to his profession, but he is 
equally committed to his family, his friends and his community. 
He is an admirable judge and an admirable person.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Judge Scirica.
    We turn now to Third Circuit Judge Maryanne Trump Barry, a 
graduate of Mount Holyoke, 1958, Columbia University in 1962, 
with a master's and a law degree from Hofstra, 1974. Judge 
Barry was in the U.S. Attorney's Office before Judge Alito was 
there, appointed to the District Court in 1983 by President 
Reagan and to the Circuit Court in 1999 by President Clinton. 
She has worked with Judge Alito for the past 6 years as 
colleagues on the Third Circuit.
    Thank you for joining us, Judge Barry, and we look forward 
to your testimony.

STATEMENT OF MARYANNE TRUMP BARRY, JUDGE, U.S. COURT OF APPEALS 
       FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA

    Judge Barry. Thank you, Mr. Chairman. Good afternoon. Good 
afternoon, members of the Committee. It is my privilege to 
appear before you and it is a particular privilege to speak on 
behalf of my friend and colleague, Judge Samuel Alito.
    Now, I warn you, I may be a little free and call him 
``Sam'' on occasion because Judge Alito and I go back almost 30 
years, to 1977. In 1977, Judge Alito came to the United States 
Attorney's Office in the District of New Jersey following his 
clerkship with Judge Leonard Garth, who was and remains a giant 
on our court. Sam was assigned--see, I did it--to the Appeals 
Division and I was the chief of that division, although in 
those days, I didn't have very much more experience than he 
did. Now, I have said Appeals Division. That sounds very much 
more substantial than it was for what it was, the three 
Assistant United States Attorneys working very, very hard at a 
very, very responsible job.
    We handled all the criminal appeals of those defendants who 
were convicted at trial. It was our job to master the record, 
to analyze the issues, to read the relevant cases, to write a 
persuasive brief on behalf of the United States, and, if 
necessary, to argue the case on the floor of the Court of 
Appeals. Nobody did it better than Sam Alito. And if there were 
any doubt on that score, the best evidence is the fact that 
after just 4 years as an Assistant United States Attorney, he 
went directly to the Office of the Solicitor General. Only the 
best are able to do that.
    For the next 6 years, Judge Alito distinguished himself 
with public service in Washington, D.C., and then he returned 
to the District of New Jersey in 1987 as the United States 
Attorney. Important cases were brought on his watch, organized 
crime cases, drug trafficking cases, public corruption cases. I 
know, because I was there, and as a district court judge at 
that time, having been appointed by President Reagan, I handled 
some of his more important cases.
    Now, I mentioned the cases that were handled on his watch 
for another reason. The tone of the United States Attorney's 
Office comes from the top. The standard of excellence is set at 
the top. Samuel Alito set a standard of excellence that was 
contagious, his commitment to doing the right thing, never 
playing fast and loose with the record, never taking a short 
cut, his emphasis on first-rate work, his fundamental decency. 
The Assistant United States Attorneys who worked for him were 
proud to do so. They admired him completely.
    Now, of course, in 1990, Judge Alito became Judge Alito, 
and you have heard the most glowing things said about Sam as a 
colleague on our court. I embrace every glowing statement.
    Let me just conclude with this. Judge Alito is a man of 
remarkable intellectual gifts. He is a man with impeccable 
legal credentials. He is a fair-minded man, a modest man, a 
humble man, and he reveres the rule of law. If confirmed, Judge 
Samuel A. Alito, Jr. will serve as a marvelous and 
distinguished Associate Justice of the Supreme Court of the 
United States. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Judge Barry.
    We turn now to Judge Ruggero Aldisert. He has a bachelor's 
degree from the University of Pittsburgh in 1942 and a law 
degree from the same institution in 1947, with intervening 
service in the Marine Corps. He served on the Court of Common 
Pleas of Allegheny County from 1961 to 1968, at which point he 
was appointed to the Third Circuit by President Lyndon Johnson. 
Judge Aldisert and I were reminiscing about my predecessor, 
Judge--Senator--he used to be a judge--Senator Joe Clark, whose 
seat I now occupy. He was Chief Judge from 1984 to 1986 and 
took senior status in 1986. He has been an adjunct professor at 
the University of Pittsburgh and has served with Judge Alito on 
the Third Circuit for the past 15 years.
    Thank you for coming all the way from California, Judge 
Aldisert, to be with us today and we look forward to your 
testimony.

 STATEMENT OF RUGGERO J. ALDISERT, SENIOR JUDGE, U.S. COURT OF 
   APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PENNSYLVANIA

    Judge Aldisert. Thank you, sir. Mr. Chairman and members of 
the Committee, I thank you for this invitation to offer my 
views on my colleague, but before proceeding into my formal 
statement, I want the record to show that there was a 
discussion this morning about ages of judges. Well, I am an old 
man.
    [Laughter.]
    Judge Aldisert. And I will tell you how old I am. There is 
a certain distinguished United States Senator sitting up there 
who I swore in as a lawyer in the city of Pittsburgh over 40 
years ago, and that is Orrin Hatch.
    [Laughter.]
    Judge Aldisert. And I will also say that I presided over 
the first jury trial that he ever tried, and he won the case.
    Senator Leahy. Oh, that is sweet.
    [Laughter.]
    Senator Hatch. I am glad you said that, Judge. They don't 
believe that I did.
    Senator Leahy. I never knew you won one.
    [Laughter.]
    Chairman Specter. They have always gotten along very well 
together, Senator Leahy and Senator Hatch.
    Judge Aldisert. When I first testified before this 
Committee in 1968, I was seeking confirmation in my own 
nomination to the Federal Circuit Court. I speak now as the 
most senior judge on the Third Circuit, and I begin my brief 
testimony with some personal background.
    In May 1960, I campaigned with John F. Kennedy in the 
critical Presidential primaries of West Virginia. The next 
year, I ran for judge, as was indicated, and I was on the 
Democratic ticket, and I served 8 years as a State trial judge. 
As the Chairman indicated, Senator Joseph Clark of Pennsylvania 
was my chief sponsor when President Lyndon Johnson nominated me 
to the Court of Appeals, and Senator Robert F. Kennedy from New 
York was one of my key supporters.
    Now, why do I say this? I make this as a point that 
political loyalties become irrelevant when I became a judge. 
The same has been true in the case of Judge Alito, who served 
honorably in two Republican administrations before he was 
appointed to our court. Judicial independence is simply 
incompatible with political loyalties, and Judge Alito's 
judicial record on our court bears witness to this fundamental 
truth.
    I have been a judge for 45 of my 86 years, and based on my 
experience, I can represent to this Committee that Judge Alito 
has to be included among the first rank of the 44 judges with 
whom I have served on the Third Circuit, and including another 
50 judges on five other courts of appeals on which I have sat 
since taking senior status.
    Moreover, I have been a longtime student of the judicial 
process. I have written four books on the subject and more than 
30 law review articles, and this study required me to study the 
current work of 22 Justices of the U.S. Supreme Court, and I 
have read hundreds of opinions of appellate judges of every 
Federal circuit, every State, and every political stripe. The 
great Cardozo taught us long ago, the judge even when he is 
free is not wholly free. He is not to innovate at pleasure. 
This means that the crucial values of predictability, reliance, 
and fundamental fairness must be honored, and as his judicial 
record makes plain, Judge Alito has taken this teaching to 
heart. He believes that legal outcomes will follow the law as 
dictated by the facts of the particular case, whether the facts 
involve commercial interests, government regulation, or 
intimate relationships.
    According to these criteria, Mr. Chairman, Judge Alito is 
already a great judge. We who have heard his probing questions 
during oral arguments, we who have been privy to his wise and 
insightful comments in our private decisional conferences, we 
who have observed at first hand his impartial approach to 
decisionmaking and his thoughtful judicial temperament and know 
his carefully crafted opinions, we who are his colleagues are 
convinced that he will also be a great Justice.
    If Judge Alito is confirmed, as I believe wholeheartedly he 
deserves to be, he will succeed a Justice who has gained a 
reputation as a practical Justice, whose resistance to 
ideologically driven solutions has positioned her as a swing 
vote on the Court. And as has been heard several times in this 
hearing, Justice O'Connor in 1995 described her approach to 
judging. What she said then is even more important today, and I 
quote: ``It cannot be too often stated that the greatest 
threats to our constitutional freedoms come in times of 
crisis...The only way for judges to mediate these conflicting 
impulses is to do what they should do anyway: stay close to the 
record in each case that appears before them and make their 
judgments based on that alone.'' And knowing Sam Alito as I do, 
I am struck by how accurately these words also describe the way 
in which he has performed his work as a United States circuit 
judge. That is why, with utmost enthusiasm, I recommend that he 
be confirmed as an Associate Justice on the Supreme Court.
    Thank you, Mr. Chairman.
    [The prepared statement of Judge Aldisert appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Judge Aldisert.
    We now turn to Judge Leonard Garth, who is coming to us--
you see him on the television screen, coming to us from 
California. Judge Garth is a graduate of Columbia, 1942, served 
in the United States Army, Lieutenant, from 1943 to 1945, and 
then from the Harvard Law School where he graduated in 1952. In 
1969, he was appointed to the district court by President Nixon 
and then to the circuit court by President Nixon in 1973, a 
lecturer at Rutgers Law School and the Seton Law Hall School; 
has known Judge Alito since Judge Alito clerked for Judge Garth 
back in 1976 and 1977 and has served with him on the Third 
Circuit for the 15 years of Judge Alito's tenure there.
    Judge Garth, we very much appreciate your being with us, 
and we look forward to your testimony.

   STATEMENT OF LEONARD I. GARTH, SENIOR JUDGE, U.S. COURT OF 
        APPEALS FOR THE THIRD CIRCUIT, CHICAGO, ILLINOIS

    Judge Garth. Thank you, Senator Specter, Senator Leahy, and 
the honorable members of the Senate Judiciary Committee, and, 
of course, my own family of judges who have preceded me in 
speaking to you today.
    I, too, am privileged to appear before you today, albeit by 
videoconferencing rather than in person. I cannot be with you 
in person because I recently had some major spinal surgery, and 
I find it extremely difficult and painful to travel.
    As Senator Specter has indicated, I have served as a 
Federal judge for some 36 years: as a district court judge in 
New Jersey, and since August 1973 as a member of the Third 
Circuit Court of Appeals.
    Now, I do want to interject and say that in that respect, 
perhaps Judge Aldisert is older than I am, but not by many 
days. And I am almost as old as he is, but not quite as 
handsome as Judge Barry of my court.
    [Laughter.]
    Judge Garth. I hope you will forgive that aside, but I want 
to ask you for something else to forgive me. I have heard all 
of my colleagues speak so eloquently and, I will use the term 
that Judge Barry used, glowingly about Judge Alito. But I have 
known him just a little bit longer and in a different capacity 
over the course of his career.
    Following his graduation from law school, he served as one 
of my two law clerks in 1976 and 1977. And as you have heard, 
since 1990 he has served as my colleague on the court of 
appeals. During the interim years, because of the relationship 
that we developed during his clerkship and the fact that both 
he and I are New Jersey residents, we remained close to one 
another. Hence, I think I can speak knowledgeably about Sam's 
qualifications, his talents, his discretion, his honesty, his 
fairness, and his integrity. These are qualities that Judge 
Alito possesses now and has possessed since the very beginning 
of his legal career.
    Let me first tell you about Sam's clerkship with me. As you 
may know, a law clerk is a judge's legal advisor and a sounding 
board, if I may use that term. But he or she often becomes much 
more than that--a member of the judge's extended family. And as 
a result, a judge gets to know his law clerk in a particularly 
personal way. I knew Sam in this personal way at the very 
beginning of his career as a lawyer. For that reason, I think I 
have a unique perspective to share with you about him.
    I chose Sam to be my law clerk in 1976 from among the 
literally hundreds of applicants who sent their resumes to me 
and the other judges of our court that year. Sam was still a 
law student when I interviewed him, but he struck me in that 
encounter as fiercely intelligent, deeply motivated, and 
extremely capable.
    I did not know at that time that Sam was the son of Samuel 
Alito, Sr. That is a gentleman who had impressed me very, very 
much as a witness in a New Jersey redistricting case that I 
heard about 1972. Once I made the connection, however, I fully 
understood why Sam was so impressive and why he regarded--and 
regards today--his father as a role model.
    During his tenure with me, Sam bore out all my initial 
impressions of his excellence--impressions which had led me to 
engage him. He was a brilliant and exceptional assistant to me. 
He enabled me to test judicial theories and to fashion 
appropriate judgments in each case that came before our court.
    I have had some 85 law clerks assisting me in chambers over 
the course of my career on the bench. They have all been 
extremely well qualified in all ways to serve a court of 
appeals judge. Sam Alito stands out even among that very elite 
group.
    During the year that he was my law clerk, Sam and I 
frequently took an afternoon walk near the courthouse in Newark 
and discussed the cases while we walked. I can tell you that 
the recommendations and arguments that Sam made about those 
cases were, as my colleagues have pointed out, always reasoned, 
principled, and supported by precedent. I developed then a deep 
respect for Sam's analytical ability, his legal acumen, his 
judgment, his institutional values, and, yes, even his sense of 
humor, which, if he is confirmed, as I hope he might, will 
probably compete with that of other Justices.
    Few of the cases that come before our court are ``slam 
dunk'' cases. Most involved difficult questions on which 
reasonable people can disagree. And, generally, Sam and I 
reached agreement after discussing these cases, but more than 
once we did not. Even in those latter cases, the ones on which 
we disagreed, I understood and respected the positions that Sam 
advanced and the contours of his analyses.
    Our afternoon walks invariably ended at a neighborhood 
store--T.M. Ward Company--where we purchased peanuts and 
coffee. I note parenthetically that Ward's has since honored 
Sam by naming a special blend of coffee that he favors ``Judge 
Alito's Bold Justice Blend.'' I think there are a few of us 
that have that distinction.
    After he left my chambers, Sam continued on in public 
service, as you have heard. In a letter to the then Deputy 
Assistant Attorney General Arnold Burns, I endorsed Sam's 
candidacy for United States Attorney for the District of New 
Jersey, and I want to just read you what I wrote. This was a 
long, long time ago:
    I can certify to Mr. Alito's integrity, ability, 
discretion, and honesty. Above and beyond those qualities, 
however, I believe his talents as a lawyer are exceptional. I 
am sure that his tenure in government service since he has left 
my chambers has reflected the fact that he is a thorough, 
meticulous, intelligent, and resourceful attorney and that his 
judgments are mature and responsible. Indeed, he was one of the 
finest law clerks I have had the privilege to engage. And if I 
were to rate him on the basis of 1 to 10-10 being the highest 
rating--he would, without question, receive a 10-plus rating.
    I stressed these same attributes when I endorsed Sam for 
membership on our court several years later. He has more than 
lived up to my rating and the qualities that I attributed to 
him in the 15 years since he joined the court and became my 
colleague.
    Sam is an intellectually gifted and morally principled 
judge. We have not always agreed on the outcome of every case, 
as I have just recently stated. Just this fall, for example, 
Sam dissented from a majority opinion that I wrote in an 
Employee Retirement Income Security Act--ERISA--case. In that 
case, Sam and I disagreed about how two provisions of the 
statute interact. I and the other majority judge were attracted 
in large part to the reasoning of the Second Circuit. Judge 
Alito, on the other hand, was attracted by the reasoning of the 
Seventh Circuit. Even in the cases on which we disagree, 
however, I always respect Sam's opinion, just as I did during 
our afternoon walks when he was my law clerk.
    Sam is also a prudent judge. Make no mistake: he is no 
revolutionary. He is a sound jurist, always respectful of the 
institution and the precepts that led to decisions in the cases 
under review.
    I have heard concerns expressed about whether Judge Alito 
can be fair and evenhanded. Let me assure you from my extensive 
experiences with him and with my knowledge of him, going back, 
as I have stated, over 30 years--that he will always vote in 
accordance with the Constitution and laws as enacted by 
Congress. His fairness, his judicial demeanor and actions, and 
his commitment to the law, all of those qualities which my 
colleagues and I agree he has, do not permit him to be 
influenced by individual preferences or any personal 
predilections.
    As you may know, when the judges of our court meet in 
conference--and I think Judge Becker referred to this in his 
remarks--we are the only individuals in chambers. No law 
clerks, no assistants, no administrative personnel, or indeed 
anyone else attend these conferences. I can tell you with 
confidence that at no time during the 15 years that Judge Alito 
has served with me and with our colleagues on the court, and 
the countless number of times that we have sat today in private 
conference after hearing oral argument, has he ever expressed 
anything that could be described as an agenda, nor has he ever 
expressed any personal predilections about a case or an issue 
or a principle that would affect his decisions.
    He has a deep and abiding respect for the role of stare 
decisis and established law. I appreciate, of course, that the 
Supreme Court can retreat from its earlier decisions, but it 
does so rarely and only in very special circumstances, and I am 
convinced that if Judge Alito is confirmed as an Associate 
Justice of the Supreme Court, he will continue to honor stare 
decisis as he did as a law clerk and as he has done as a member 
of our court. He will sit among those jurists whose qualities 
of fairness and of principles are the loadstar of the 
judiciary. In my opinion, Sam is as well qualified as the most 
qualified Justices currently sitting on the Supreme Court.
    A word about Sam's demeanor is in order. Sam is and always 
has been reserved, soft-spoken, and thoughtful. He is also 
modest, and I would even say self-effacing, and these are the 
characteristics I think of when I think of Sam's personality. 
It is rare to find humility such as his in someone of such 
extraordinary ability.
    Over the 30 years I have known Sam, I have seen him grow 
professionally into the reserved, mature, independent, and 
apolitical jurist that graces our court today. I regard him as 
the most qualified member of our court to be considered as an 
Associate Justice of the Supreme Court. I know that just as 
Judge Alito has brought and brings grace and luster to the 
Third Circuit, so too will he bring grace and luster to the 
U.S. Supreme Court if he is confirmed.
    Thank you, members of the Senate Judiciary.
    Chairman Specter. Thank you very much, Judge Garth, coming 
from, I have just been advised, from Phoenix, Arizona. Thank 
you.
    [The prepared statement of Judge Garth appears as a 
submission for the record.]
    Chairman Specter. Our next witness is Judge John Gibbons, a 
graduate of Holy Cross in 1947 with a bachelor's, Harvard Law 
School in 1950. He was nominated to the Third Circuit by 
President Nixon in 1970, Chief Judge from 1987 to 1990, at 
which time he resigned to become a professor of law at Seton 
Hall University. He now is in the practice of law. He has known 
Judge Alito for more than 20 years, when Judge Alito was a U.S. 
Attorney and tried cases before Judge Gibbons.
    Thank you very much for being with us today, Judge Gibbons, 
and we look forward to your testimony.

 STATEMENT OF JOHN J. GIBBONS, JUDGE (RETIRED), U.S. COURT OF 
APPEALS, AND DIRECTOR, GIBBONS, DEL DEO, DOLAN, GRIFFINGER AND 
                 VECCHIONE, NEWARK, NEW JERSEY

    Judge Gibbons. Mr. Chairman and members of the Judiciary 
Committee, as you all probably know, or as Senator Specter has 
just said, I was a member of that court of appeals where Judge 
Alito is now a member for 20 years, and indeed, it was my 
retirement from that court 16 years ago that created the 
vacancy which Judge Alito filled on the court of appeals.
    Since his appointment, lawyers in the firm of which I am a 
member have been regular litigators in the courts of the Third 
Circuit, not only on behalf of clients who pay us handsomely 
for such representation, but also frequently for the firm's 
Gibbons Fellowship Program on behalf of nonpaying clients whose 
cases have presented those courts with challenging human rights 
issues. The Gibbons Fellowship Program is certainly a 
significant part of our practice, as amply demonstrated by the 
fact that since 1990, Gibbons Fellows lawsuits have resulted in 
115 reported judicial decisions.
    This Committee should appreciate that the Court of Appeals 
for the Third Circuit has been for the 50-plus years that I 
have followed or participated in its work a centrist legal 
institution. An important reason why that is so is that many 
years ago, the court adopted the requirement that all opinions 
intended for publication must, prior to filing, be circulated 
by the opinion writer not only to the members of the three-
judge panel, but also to the other active judges on the court. 
The purpose of this internal operating rule was to permit each 
active judge not only to comment upon the opinion writer's 
treatment of Third Circuit and Supreme Court precedent, but 
also to vote to take the case en banc for rehearing by the full 
court if the judge thought that the opinion was outside the 
bounds of settled precedents. Thus, the level of interaction 
among the Third Circuit appellate judges has, for a half-
century, been unusually high.
    This Committee should also appreciate that appointment to 
an appellate court where one has life tenure is a transforming 
experience. I remember a former judicial colleague saying to me 
once after several years on the bench, ``John, what other job 
in the world is there in which you can look in the mirror while 
you are shaving and say to yourself, all I have to do today is 
the right thing according to the law? '' A good judge puts 
aside interests of former clients, interests of organizations 
they have belonged to, and interests of the political 
organization that may have been instrumental in one's 
appointment. I personally experienced that transformation and I 
witnessed it repeatedly in the judicial colleagues who joined 
the court after I did.
    These two points, the unusual internal cohesion of the 
Third Circuit Court of Appeals and the transformative 
experience of serving on a court protected by life tenure, 
suggests to me that the Committee members, in determining 
whether or not to vote in favor of confirming Judge Alito, 
should concentrate not on what he thought or said as a recent 
Princeton graduate or as a young lawyer seeking advancement as 
an employee of the Department of Justice, but principally, if 
not exclusively, on his record as an Article III appellate 
judge.
    If you look, as you should, at that 15-year record as a 
whole, you cannot in good conscience conclude that Judge Alito 
will bring to the Supreme Court any attitude other than the one 
held by the colleague I mentioned who thought important 
thoughts about judging every morning while he was shaving. He 
has consistently followed the practice of carefully considering 
both Supreme Court and Third Circuit precedents. Very few of 
the opinions he has written for a unanimous panel or for a 
panel majority have deemed his colleagues among the active 
judges to vote to take the case en banc. The cases in which he 
participated that produced dissenting opinions by him, or from 
him, all, it seems to me, were close cases in which either the 
law or the evidentiary record were such that equally 
conscientious judges could quite reasonably disagree about the 
outcome.
    Take, for example, cases presenting challenges to State 
regulations of abortion, certainly a hot-button topic for many 
people who are opposing Judge Alito's confirmation. I found 
four such cases in which he participated. In three of them, he 
decided against State regulations that might have put a burden 
on a woman's choice for an abortion. In the fourth case, about 
which a lot has been said, Planned Parenthood of Southeastern 
Pennsylvania v. Casey, Judge Alito dissented from a majority 
opinion, holding unconstitutional the Pennsylvania spousal 
consent provision for an abortion. And it is that dissent which 
the opponents of his confirmation talk about most frequently. 
They seem to urge that on the basis of that dissent, Judge 
Alito is so far out of the mainstream of constitutional law 
that his confirmation will endanger the constitutional 
protection of civil rights practically across the board.
    In your consideration of that dissent, I suggest that you 
should take into account these points. First, at the time the 
circuit considered the Pennsylvania spousal consent statute, 
the Supreme Court had not yet decided whether States could 
impose such a requirement, and second, the court of appeals 
majority invalidated the statute. Had the Supreme Court simply 
denied certiorari, that invalidation would have remained in 
place. Instead, at least four Justices voted to grant 
certiorari. If the issue of the statute's constitutionality was 
so overwhelmingly clear, why was certiorari granted to endorse 
the Third Circuit's majority position? Clearly, Planned 
Parenthood v. Casey was, at the time the court of appeals 
acted, a case over which conscientious judges could reasonably 
disagree. Otherwise, the Supreme Court would simply have denied 
certiorari.
    Nothing in the Supreme Court's case law dealing with 
abortion relieves the appellate judges and intermediate 
appellate courts from the duty of making a conscientious effort 
to fit the case before them within that case law, and the four 
abortion cases in which he participated show that that is 
exactly what Judge Alito has done.
    Another opinion that has caught the attention of those 
clamoring for Judge Alito's scalp is his dissent in United 
States v. Rybar, in which he would have held that the Supreme 
Court decision in Lopez prohibited Congress from regulating 
mere possession of machine guns. A majority opinion upheld this 
statute. Unlike Casey, the Supreme Court didn't review that 
case. Thus, the question of the reach of Lopez was left open, 
and when the issue reached the Ninth Circuit in the United 
States v. Stewart in 2003, it adopted Judge Alito's dissenting 
position. Some opponents of his confirmation have relied on 
that dissent in suggesting that Judge Alito is perhaps a 
captive of the right-wing gun lobby. This Committee, after 
actually reading Lopez and Rybar and the Ninth Circuit case, I 
suggest, cannot in good conscience find the dissent to be 
anything more than a good faith effort to somewhat 
unenthusiastically apply the perhaps unfortunate Supreme Court 
precedent of Lopez. Indeed, in his Rybar dissenting opinion, 
Judge Alito suggested how Congress could cure the Lopez 
violation.
    The extent to which opponents of Judge Alito's confirmation 
largely ignore his overall 15-year record as a judge suggests, 
at least to me, that the real target for many of the somewhat 
vitriolic comments on the nomination is less him than the 
executive branch administration that nominated him. The 
Committee members should not think for a moment that I support 
Judge Alito's nomination because I am a dedicated defender of 
that administration. On the contrary, I and my firm have been 
litigating with that administration for a number of years over 
its treatment of detainees held at Guantanamo Bay, Cuba, and 
elsewhere, and we are certainly chagrined at the position that 
is being taken by the administration with respect to those 
detainees.
    It seems not unlikely that one or more of the detainee 
cases that we are handling will be before the Supreme Court 
again. I do not know the views of Judge Alito respecting the 
issues that may be presented in those cases. I would not ask 
him, and if I did, he would not tell me. I am confident, 
however, that as an able legal scholar and a fair-minded 
justice, he will give the arguments, legal and factual, that 
may be presented on behalf of our clients careful and 
thoughtful consideration without any predisposition in favor of 
the position of the executive branch. That is more than 
detainees have received from the Congress of the United States, 
which recently enacted legislation stripping Federal courts of 
habeas corpus jurisdiction to hear many of the detainees' 
claims without even holding a Committee hearing.
    Justice Alito is a careful, thoughtful, intelligent, fair-
minded jurist who will add significantly to the Court's 
reputation as the necessary expositor of constitutional limits 
on the political branches of the government. He should be 
confirmed.
    Chairman Specter. Thank you very much, Judge Gibbons.
    [The prepared statement of Judge Gibbons appears as a 
submission for the record.]
    Chairman Specter. Our final witness on the panel is former 
Third Circuit Judge Tim Lewis, a graduate of Tufts University 
in 1976, a law degree from Duquesne in 1980. He served as an 
Assistant United States Attorney before President Bush the 
Elder appointed him to the Western District Court, and then in 
1992, President Bush the Elder nominated him to the Third 
Circuit. Judge Lewis resigned in 1999 and now is co-chair of 
the appellate practice group at the Schnader Harrison office. 
He serves as co-chair of the National Committee on the Right to 
Counsel, a public service group dedicated to adequate 
representation of indigents. Judge Lewis and Judge Alito served 
together on the Third Circuit for 7 years.
    We appreciate your being here, Judge Lewis, and the floor 
is yours.

 STATEMENT OF TIMOTHY K. LEWIS, JUDGE (RETIRED), U.S. COURT OF 
 APPEALS FOR THE THIRD CIRCUIT, AND COUNSEL, SCHNADER HARRISON 
              SEGAL & LEWIS LLP, WASHINGTON, D.C.

    Judge Lewis. Thank you very much, Senator Specter. Thank 
you, members of the Committee. It is a pleasure and an honor to 
be here today.
    When Thurgood Marshall announced his intention to resign as 
a Justice of the U.S. Supreme Court in conference one day, the 
first person to respond was Chief Justice Rehnquist. Chief 
Justice Rehnquist's words were, ``No, Thurgood, no. Please 
don't. We need you here.''
    Shortly thereafter, when Justice Marshall had resigned, he 
was interviewed, and in the course of that interview was asked 
about Chief Justice Rehnquist. And during that interview he 
said, ``This is the best Chief that I have ever served under.'' 
and went on to extol Chief Justice Rehnquist's service on the 
U.S. Supreme Court.
    Now, I was, quite frankly, stunned by both of those 
observations when I learned them at the time, and it wasn't 
until I had served for a period of time as a judge on the 
United States court of appeals that it all began to make sense 
to me.
    It is no coincidence to anyone who is familiar with my body 
of work while I served on the United States court of appeals 
and my body of work since having left the court that I happen 
to be sitting on the far left of this panel here this 
afternoon. And yet I am here, and what I have just related 
about the exchanges between Justice Marshall and Justice 
Rehnquist and Justice Marshall's later observation about the 
Chief Justice helps explain why I am here, because it is true 
that during the time that I served with Judge Alito, there were 
times when we did not agree.
    I am openly and unapologetically pro-choice and always have 
been. I am openly--and it is very well known--a committed human 
rights and civil rights activist and am actively engaged in 
that process, as my time permits and my law practice permits 
today and through my law practice at Schnader Harrison Segal & 
Lewis. I am very much involved in a number of endeavors that 
one who is familiar with Judge Alito's background and 
experience may wonder, well, why are you here today saying 
positive things about his prospects as a Justice on the Supreme 
Court? And the reason is that, having worked with him, I came 
to respect what I think are the most important qualities for 
anyone who puts on a robe, no matter what court they will serve 
on, but in particular the U.S. Supreme Court, and first and 
foremost among these is intellectual honesty.
    As Judge Becker and others have alluded to, it is in 
conference, after we have heard oral argument and are not 
propped up by law clerks--we are alone as judges discussing the 
cases--that one really gets to know, gets a sense of the 
thinking of our colleagues. And I cannot recall one instance 
during conference or during any other experience that I had 
with Judge Alito, but in particular during conference, when he 
exhibited anything remotely resembling an ideological bent. 
That does not mean that I agreed with him, but he did not come 
to conference or come to any decision that he made during the 
time that I worked with him based on what I perceived to be an 
ideological bent or a result-oriented demeanor or approach. He 
was intellectually honest, and I would say rigorously so, even 
with respect to those areas that he and I did not agree.
    Second, I have no hesitation in commending his commitment 
to principle, both in how he went about his work on the Third 
Circuit, how he came to his decisions. It was through a very 
difficult process we all would put ourselves through, but in 
Sam's case I think that I can say that no one worked harder at 
coming to what he thought was the right decision than Judge 
Alito.
    And, finally, though we did disagree, it was always 
respectful, and that is what I came to understand as probably 
the most important facet of appellate judging. No one--and I 
mean no one--has a corner on the marketplace of ideas in terms 
of what is best, what is right. We have different approaches, 
and it is very important that we maintain different approaches 
in positioning and in pushing forward our sense of--our 
jurisprudence. They do not have to be the same. In fact, I 
think that it is contrary to the best interests of democratic 
government for there to be some monolithic approach to judicial 
decisionmaking on the United States Supreme Court or on any 
other court.
    Sam Alito practiced a form of jurisprudence that I think is 
best referred to as judicial restraint, judicial deference. It 
is in many respects a more conservative form of jurisprudence 
than was my own. And that is fine. That is perfectly fine. And 
as a matter of fact, I dare say it is important, because 
through the exchanges we learned from one another and I think 
were a better court.
    I know that this is the case on the Supreme Court, as it is 
reflected in Chief Justice Rehnquist's observation when Justice 
Marshall announced his resignation. And I think that it is 
important that different approaches be respected.
    So in the end, I am here as a matter of principle and as a 
matter of my own commitment to justice, fairness, and my sense 
that Sam Alito is uniformly qualified in all important respects 
to serve as a Justice on the United States Supreme Court.
    Thank you.
    Chairman Specter. Thank you very much, Judge Lewis.
    This panel, this distinguished panel, has been accorded 
much more time than we customarily allow because of the very 
large number of witnesses which we have. But out of deference 
to your positions and your coming here and your unique 
knowledge, we have done that.
    I would like to ask each of you a great many questions, but 
I am going to limit myself to 5 minutes. And I would urge that 
the responses be sound clips. You have not had as much 
experience at that as we have, but on the networks, a sound 
clip goes for about 8 seconds and locally about 18 seconds. You 
don't have to quite do that, but as close as you can. You can 
start my clock now.
    Judge Becker, the conference is a unique opportunity, as 
has been explained, to really find out about what your 
colleagues think. Do you think, is it your judgment that Judge 
Alito would allow his personal views on a matter to influence 
his decisions as a Justice?
    Judge Becker. I do not think--I am confident that he would 
not.
    Chairman Specter. Judge Garth, you spoke about stare 
decisis. You have been quoted about your views of Judge Alito 
as to his approach, if confirmed, where the bounds of the 
Supreme Court Justice on stare decisis are not the same as a 
court of appeals judge. As Judge Gibbons has noted, the issue 
of a woman's right to choose has become a very central factor 
in our deliberations. Do you have any insights which you would 
care to offer as to how Judge Alito would weigh the issue of 
stare decisis on that particular subject?
    Judge Garth. I can only say that I have heard Judge Alito 
speak as to how he would approach and process any judicial 
problem, and it would be presumptuous of me to even think of 
how he would rule on that subject. But I can tell you that when 
it comes to applying the precedents in our court and of the 
Supreme Court, he has always been assiduous in the manner in 
which he has applied them and he has always had good reason and 
principle.
    I can't say more than repeat again that I believe that 
Judge Alito, when he described to the Committee how he would 
rule on a case and what he would do in respect of stare 
decisis, I could not express it better than he did.
    Chairman Specter. Judge Barry, you have sat with him in 
these private conferences, known him for a long time, back to 
the days when you were in--and I had not noted that you were in 
the U.S. Attorney's Office when he was an assistant. How would 
you evaluate Judge Alito on his consideration of women's 
issues?
    Judge Barry. If I had to add anything to my initial 
testimony, I would have stated more about what Sam and I did 
together on this wonderful court and how reasonable he was and 
how he never indicated bias of any kind.
    I told you at the outset I have known Judge Alito for 
almost 30 years. I have the utmost respect for him. I have 
never heard him say one thing that would give me any reason to 
believe that he would give other than the most careful 
consideration to what you have described as women's issues.
    Chairman Specter. Judge Lewis, I have a question for you, 
and then I am going to propound a question for the other three 
judges before my red light goes on. I would like you to be a 
little more specific in your evaluation on Judge Alito as to 
how he would handle the civil rights issue. I am not going to 
wait for you to start to answer because my red light will go on 
in advance. Then I am going to ask Judge Scirica, Judge 
Aldisert, and Judge Gibbons to address the subject, which has 
concerned this Committee in some detail, as to whether there is 
any tilt in Judge Alito's approach to the powerful, to the 
Government, as opposed to the average citizens, whom we 
characterized as ``the little guy.''
    Would you start, Judge Lewis, with your evaluation?
    Judge Lewis. Yes, I will. Thank you, Senator.
    Let me begin by saying that if I believed that Sam Alito 
might be hostile to civil rights as a member of the U.S. 
Supreme Court, I can guarantee you that I would not be sitting 
here today. That is the first thing that I want to make clear.
    My experience in civil rights cases on the Third Circuit 
were primarily in the Title VII area with Judge Alito, and 
there were cases in which we agreed and cases where we 
disagreed. There was one in particular, the Piscataway case, 
which was, for lack of a better term, a reverse discrimination 
case that became an en banc matter, where I and a number of my 
colleagues wound up writing dissenting opinions. But that was a 
very close and I think very closely contested case having to do 
with whether or not Title VII contemplated diversity as an 
interest that an employer could use. And to my disagreement and 
chagrin, the majority did not agree with Judge Sloviter, Judge 
McKee, and myself in that case.
    But I never felt that Judge Alito or any of my colleagues 
who were in the majority in that case were in any sense hostile 
to civil rights interests. This was a legal question, and they 
came out the way that they did.
    In other cases, for example, the Aman v. Cort Furniture 
case, which I authored, Judge Alito was not on the panel, but 
as I think Judge Gibbons mentioned, all opinions are circulated 
on the Third Circuit, and so really any opinion that comes out 
is the opinion of the court. I don't believe in that case, 
which was another Title VII case that I think furthered the law 
in some very important respects, defining code words as--racial 
code words as actionable under Title VII, I believe that Judge 
Alito went along with that. I was very happy that he did that. 
And there were others.
    My sense of civil rights matters and how a court should 
approach them jurisprudentially might be a little different. I 
believe in being a little more aggressive in these areas, but I 
cannot argue with a more restrained approach. As long as my 
argument is going to be heard and respected, I know that I have 
a chance, and I believe that Sam Alito will be the type of 
Justice who will listen with an open mind and will not have any 
agenda-driven or result-oriented approach.
    Chairman Specter. Judge Scirica, would you reply as briefly 
as you can as to the question I posed?
    Judge Scirica. In my 15 years with Sam Alito, I have never 
seen any indication that he would favor that particular 
interest.
    Chairman Specter. Judge Aldisert?
    Judge Aldisert. Well, I approach it from a rather personal 
standpoint. Judge Alito is an American of Italian origin, and 
until quite recently, Americans of Italian origin were subject 
to a lot of discrimination. Quotas as to whether to get into 
professional schools. A little example in my particular case, 
when you consider all the Americans of Italian origin, from New 
England, Connecticut, New York, New Jersey, Pennsylvania, along 
the seaboard, there had never been an American of Italian 
origin or these millions of Americans of Italian origin--there 
had never been an American of Italian origin ever appointed to 
the United States Court of Appeals until President Johnson 
appointed me in 1968. So I can speak from experience. Things 
are better now, but I have lived through that.
    When you look at Judge Alito, his father came to the United 
States as an Italian immigrant at a very early age, and I am 
certain that the idea of protecting the rights of the so-called 
little guy is in the genes of Samuel A. Alito, Jr.
    Chairman Specter. Judge Gibbons, as briefly as you can.
    Judge Gibbons. His attitude toward criminal defendants is 
of some significance for our law firm because we have a very 
big white-collar criminal defense practice, and my partner, 
Larry Lustberg, prepared a memo on the subject. He says, 
although given his prosecutorial background, Judge Alito has 
been seen by many of the defense bar as pro-government. A 
thorough review of his record shows that, in fact, he is a 
fair-minded jurist who pays careful attention to the record 
below and who takes great pains to apply precedent.
    Now, he then goes on in the memo to review the series of 
cases in which Judge Alito decided against the government on 
many significant issues, and he concludes, while, like most 
appellate judges, there are far more decisions affirming than 
reversing convictions--that is certainly true of every judge 
who has sat on the court of appeals--Judge Alito's 
jurisprudence is properly characterized as careful, based on 
precedent, and particularly attentive to the record. If that 
record does not support affirmance, he reverses. He also 
included an admonition to the rest of the department that you 
had better know the record, because he will.
    Chairman Specter. Thank you, Judge Gibbons.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman, and I 
would like to thank you very much for being here. I think the 
testimony was very interesting. I listened acutely. I think we 
would all be very lucky if any one of us had colleagues like 
you that would come forward and say the things that you all 
have said.
    Let me ask this question. How do you look at the 
evaluations that have been done, those evaluations that say, 
well, in the cases looked at, he has judged whatever percent it 
was, but let us say it is 70 percent--I am just making it up--
in favor of corporations, or business, or against the little 
man. How do you look at that sample and how do you regard that? 
It has been written about rather extensively, anyone that would 
like to try to answer it. Judge Becker?
    Judge Aldisert. I would like to try that--
    Senator Feinstein. Give it to Judge Becker because I have 
known him longer.
    Judge Becker. Senator Feinstein, first of all, you have to 
keep in mind, and I think this is a national--this statistic 
applies nationwide--I think somewhere between 80 and 85 percent 
of cases are affirmed. So a lot of this is going to determine 
who won in the district court or who won in the agency. So 
those numbers are skewed by that very fact.
    The only other thing I would say is I haven't analyzed 
these statistics but that is nothing I have ever seen. He has 
voted with me. There was a case not long ago, it was a very 
thin employment discrimination case in which a woman, well, she 
never got to a jury in district court. One of my colleagues 
wanted to affirm. I was on the fence. And Sam wanted to 
reverse. I said, OK, write it up, and we went along.
    I have just never seen any evidence that he is for the big 
guy against the little guy. But I think if you analyze these, I 
think you will find most of the statistics come from the fact 
that the big guy won in the district court and 80 to 85 percent 
of those cases are affirmed, and most of those, they win out.
    Senator Feinstein. Judge?
    Judge Aldisert. I was just about to say the same thing, but 
my good friend, Judge Becker, your figure was a little skewed 
there. The percentage of reversals is not 15 percent, it is 8.7 
percent, the statistics last year of all cases. In criminal 
cases, in the figures of 2004, the reversal rate in criminal 
cases was 5.1 percent.
    Judge Becker. I always defer to a master arbiter.
    Judge Barry. And, of course, it should be added that when 
we are considering cases on appeal, we are operating on a 
standard of review. So we are not typically looking at the 
issues underlying that review.
    Senator Feinstein. The underlying situation, right.
    Judge Barry. That is right. We are looking at an abuse of 
discretion standard. We are looking at, were the facts clearly 
erroneous? So we are not starting from scratch, typically.
    Senator Feinstein. Let me ask you this question. The 
subject of abortion and Roe was raised, and obviously if you 
have listened to the hearings, you have heard the question 
going on back and forth. I was very puzzled when I read Chief 
Justice Roberts's statement before us on Roe and how he 
answered Senator Specter's questions. The Chief ended up by 
saying that he felt that Roe was well-settled law. I think he 
even added to that, very well-settled law.
    Chairman Specter. He said settled beyond that.
    Senator Feinstein. All right, settled beyond that. And I 
asked Judge Alito, and I thought at the very least he was going 
to agree with Justice Roberts, and he said, well, it all 
depends upon what settled means. What do you make of that?
    Judge Barry. I respectfully cannot characterize what Judge 
Alito meant by that and I would much prefer not to have to try.
    Senator Feinstein. That is fine. Anybody?
    Judge Becker. I think we are here as fact witnesses more 
than opinion witnesses, Senator Feinstein. I really would not 
answer that question.
    Senator Feinstein. Very good.
    Judge Becker. I couldn't make a judgment on it.
    Senator Feinstein. Very good. Thank you. Thank you very 
much. Thanks, Mr. Chairman.
    Chairman Specter. Senator Hatch?
    Senator Hatch. I want to express my gratitude to all of you 
judges, you out there in the West, Judge Garth, for coming here 
today and helping this Committee. It is pretty apparent that I 
got quite emotional when my old friend, Judge Aldisert, 
testified. I really did. I got emotional because I care for you 
and I watched you for years there and just have a tremendous 
amount of respect. I have read your books, and you have always 
sent them to me, and that has meant a lot to me. But you all 
mean a lot to me.
    It is no secret that, with very few exceptions, I love the 
Federal courts and I love the judges, and there are very few 
exceptions. There are a few that I think you can name 
yourselves.
    [Laughter.]
    Senator Hatch. But by and large, you know, we pass 
unconstitutional legislation up here all the time and--
    [Laughter.]
    Senator Hatch.--if it hadn't been for the courts, we would 
probably not have preserved the Constitution. So I want to give 
you all credit for that.
    But let me just say this. By the way, just to correct the 
record. What Judge, now Chief Justice Roberts, he and Judge 
Alito basically said the same thing. They said, well, it is 
settled as a precedent of the Court, with regard to Roe v. 
Wade. That is exactly what he said, entitled to respect under 
principles of stare decisis. That is basically what Judge Alito 
said. And Roberts said, and it is settled as a precedent of the 
Court, yes. Senator Specter asked him some more and then he 
said, ``I think the initial question for a judge confronting an 
issue in this area, you don't go straight to the Roe decision. 
You begin with Casey, which modified the Roe framework and 
reaffirmed its central holding.'' So these are maybe touchy 
words, but it is important to get it right.
    One of the most prominent issues in this hearing has been 
how Judge Alito views the role of precedent in deciding cases. 
Too often, I think, the objective seems not so much to get 
insight into Judge Alito's general views about precedent, but 
clues about how he will treat particular precedents.
    First, let me make this point about Judge Alito's record 
regarding circuit precedent. As I understand it, the appeals 
court can reconsider its own precedents only when all Third 
Circuit judges sit together en banc, is that correct?
    Judge Becker. That is correct.
    Senator Hatch. OK. It is my understanding that in his 15 
years on the Third Circuit, Judge Alito has participated in 38 
en banc decisions. Now, Judge Alito voted to overturn circuit 
precedent in just four of those cases. Two of those decisions 
were unanimous. All judges agreed. That does not look to me 
like someone who plays fast and loose with precedent.
    Let me just ask you, Judge Becker, and if anybody disagrees 
with what Judge Becker says, I will be happy to have you 
respond. Let me ask you a question about Judge Alito's handling 
of certain--and the reason I ask Judge Becker, Judge Becker, as 
Senator Specter said, is the 101st Senator. He came down here 
and tried to help this asbestos problem and we all respect him 
for that.
    Let me just say, I know you have participated in more than 
1,000 cases, or decisions, rather, with Judge Alito. All of 
you, of course, can offer your thoughts, as well. Yesterday, 
during the hearing, one of my Democratic colleagues held up 
some charts with some quotes from a few cases in which Judge 
Alito's colleagues criticized how he applied circuit precedent. 
The picture that was painted was that Judge Alito misapplies 
precedent when it suits him, suggesting, I suppose, that he 
might be activist or careless in this regard on the Supreme 
Court.
    Now, I certainly agree that the views of his fellow judges 
are particularly relevant on this point and having you here is 
very valuable to us for that reason. Now, asking you all about 
this here seems more useful than a few selective sentence 
fragments on a chart. Realizing, Judge Becker, that judges do 
not always agree on every single point every single time, how 
would you characterize Judge Alito's overall view or approach 
to precedent?
    Judge Becker. Respectful of it. I have never seen what was 
portrayed, where--
    Senator Hatch. Judge, here--
    Judge Becker.--I mean, Judge Alito might have disagreed 
with prior precedent. He followed it unless he felt that it was 
dicta, in which case it wouldn't be precedent--
    Senator Hatch. Right.
    Judge Becker.--or the case was distinguishable. But I have 
never seen him ignore or disregard precedent.
    Senator Hatch. Have any of the rest of you seen that?
    Judge Scirica. No.
    Senator Hatch. Judge Aldisert?
    Judge Aldisert. Judge Hatch--Senator Hatch--
    [Laughter.]
    Judge Aldisert. I wanted to answer Senator Feinstein the 
same way. In my book, ``The Judicial Process, Text Materials 
and Cases,'' Second Edition, 1996, I have an entire chapter on 
precedent, and one of those sections is called, ``Viability of 
Precedent, or When Do You Depart.'' and there is a 
sophisticated body of law, and I cite cases with Justice Sandra 
Day O'Connor, Thurgood Marshall, and a few others, and there 
are also some very important scholarly academic articles on it. 
I think that Judge Alito's expression that it depends is a 
statement that you have to consider all the factors on all the 
Supreme Court cases that discuss when do we depart from 
precedent, and there is a body of law that is in my casebook.
    Senator Hatch. Thank you so much, and Mr. Chairman, I want 
to thank all of these great judges for being here and I want to 
thank you, Judge Lewis, for taking time to be here in 
particular. We just really respect you. I love and respect the 
Third Circuit Court of Appeals.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Leahy?
    Senator Leahy. Mr. Chairman, I realize we have some retired 
and very distinguished retired judges, but some current judges. 
Insofar as the current judges, if their case is appealed to the 
Supreme Court and Judge Alito becomes a member of the Supreme 
Court, he will have to rule on their appeal, appeals from their 
decisions, and so I think rather than create a difficulty for 
them or for Judge Alito, if he is confirmed, I think I will not 
avail myself to ask questions of this unprecedented panel.
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. I just had a 
question, and I think, Judge Lewis, it was a comment that you 
made that raised this question in my mind. There was a point 
made about the circulation of opinions among all of the judges 
on the court. When a three-judge panel has tentatively made a 
decision in a case and circulates an opinion, is that opinion 
circulated among all of the judges and then do all of the 
judges have an opportunity to comment on that in some way?
    Judge Lewis. Yes, that is correct, and that is why the 
opinion is the opinion of the entire court in the end, when it 
is released. I should let Chief Judge Scirica address the 
current practice. I have been off the court for some time, but 
I assume it is done the same way, is it not?
    Senator Kyl. This is interesting to me, because I practiced 
before the Ninth Circuit Court of Appeals and that same 
opportunity, I think, is not as available.
    Judge Gibbons. Senator, that was invented by Judge Biggs in 
the late 1930s.
    Senator Kyl. In which--in the Third Circuit, sir?
    Judge Scirica. The Third Circuit. We circulate all of our 
precedential opinions to the entire court before they are ever 
published. That is, before the litigants and before the public 
sees them. We do not do that with a category that we call not 
precedential opinions. They are handled by the panel themselves 
unless there is a dissent, in which case we circulate them, as 
well. Now, of course, when a litigant loses a case, that 
litigant has the opportunity to file a petition for rehearing 
and that goes to the entire court because the litigant usually 
asks both for a panel rehearing before the original panel and 
also before the entire court. And so for precedential opinions, 
it gets sent to the court on two different occasions, one 
before it is ever published and one after it is published.
    Senator Kyl. I am curious, what happens if there is a 
strong opinion by one of the judges on the court who did not 
sit on the original three-judge panel that is different from 
the conclusion?
    Judge Scirica. Any judge on our court on the initial 
circulation or even on the circulation for the petition for 
rehearing may write to the entire court or may write to the 
opinion writer or may write to the panel expressing his or her 
disagreement. It is one of the wonderful things about an 
appellate court, because we view the panel decisions that are 
precedential as opinions of the court more than just the 
opinion of the panel or the opinion of the author of the case. 
There is often this wonderful dialog that goes back and forth 
between the opinion writer or the panel and a judge who may 
have concerns about what is being decided, and it sometimes can 
go on for days. Sometimes, the panel will, or the author will 
say, ``I want to think about this. I want to have the 
opportunity to revisit this issue.'' And sometimes it takes 
weeks before the panel comes back with a new opinion, often a 
revised opinion. This is part of the collegial aspect of the 
court.
    Senator Kyl. This should be very reassuring to the 
litigants--
    Judge Barry. And sometimes we will go en banc before the 
opinion ever issues.
    Judge Becker. Or often, the panel will change its mind and 
say, we got it wrong.
    Senator Kyl. Well, it is very interesting and I appreciated 
the opportunity to at least mention that. And then I, too, want 
to thank all of you for your willingness to be here, to take 
time out, but most especially to speak on behalf of a colleague 
who I know you all admire a great deal, and I thank you for 
that very much.
    Chairman Specter. Thank you, Senator Kyl.
    Senator Durbin.
    Senator Durbin. Mr. Chairman, I thank the members of the 
panel for their public service. I have no questions, and I 
would like to associate myself with the remarks of Senator 
Leahy.
    Chairman Specter. Thank you very much, Senator Durbin.
    Senator DeWine.
    Senator DeWine. I have no questions, Mr. Chairman.
    Chairman Specter. Senator Sessions.
    Senator Sessions. I would just like to ask the panel, I see 
one of the articles that stirred up some of this discussion 
about not being an even-handed judge actually only considered 
221 cases in the judge's first 6 years on the bench.
    I am sure you, as professionals who have been there, your 
judgment is better about his style and fairness than some 
abstract numbers would be.
    But I will just ask you, Judge Scirica, maybe--and if 
others would like to comment, please do--on civil rights cases 
that I have seen here, of the civil rights cases Judge Alito 
wrote, the panel agreed with him 90 percent of the time and his 
opinions were unanimous 90 percent of the time. That doesn't 
sound like an extreme position to me.
    What would you say about that?
    Judge Scirica. Well, I would agree, and that would comport 
with my recollection of these cases.
    Senator Sessions. And I notice the respect Judge Lewis had 
for Judge Alito. It said when he sat on panels where both the 
other judges were Democratic appointees, the decision was 
unanimous in 100 percent of the cases, or whatever those 
statistics show. And then with regard to the immigration cases, 
it says that his appeals--the average judge in the country--in 
average cases, the immigrant wins asylum claims in the court of 
appeals slightly over 11 percent of the time. But in Judge 
Alito's record, he ruled for the immigrant seeking asylum in 
fully 18 percent of the cases.
    Do those numbers, Judge Scirica, strike you as sort of what 
the--well, the 11 percent, is that about what you would expect?
    Judge Scirica. Yes, sir.
    Senator Sessions. And in the cases that he wrote opinions 
on, the average court of appeals judge ruled for the immigrants 
8 percent and he ruled for the immigrants 19 percent. Well, I 
don't know that those numbers mean a whole lot, but I do think 
they tend to rebut some of the numbers that we have seen 
floating around, because your opinion of him does not reflect a 
person who shows bias.
    In the Rybar case, Judge Gibbons--you no longer are on the 
bench, you could be honest with us right here in Congress--if 
the Congress had put in an interstate commerce nexus in the 
statute they passed about machine guns, like they did in ITSMV, 
interstate transportation of stolen motor vehicles, or 
interstate transportation of stolen property, kidnapping, or 
theft from interstate shipment, it would have been upheld, 
wouldn't it?
    Judge Gibbons. That is what he said in his dissenting 
opinion.
    Senator Sessions. So the truth is that Congress missed the 
boat?
    Judge Gibbons. Yes, as it did with respect to this recent 
unfortunate legislation.
    Senator Sessions. And we could fix it as soon as we passed 
a law correctly, I would submit.
    I would just ask this, Judge Aldisert. I am serious about 
this question, but I think Judge Roberts agreed with me that if 
an individual within the heart of Pennsylvania or New Jersey 
picks up a rock and kills another person, that is not a Federal 
crime. Is that correct, without an interstate nexus of some 
kind, that would be prosecutable solely by the State court?
    Judge Becker. Unless he stole the rock out of an interstate 
shipment.
    Judge Lewis. It could be a violation of Federal civil 
rights, also.
    Judge Garth. If he killed or the person that he assaulted 
was a Federal official--the President or Vice President or a 
Senator.
    [Laughter.]
    Senator Sessions. Well, Judge Lewis said it could be a 
civil rights violation if it was in a way to deny someone of 
civil rights.
    Judge Lewis. That is correct.
    Senator Sessions. Or if it was a Federal official. But, 
classically, the Federal criminal law has been tied to 
interstate commerce nexus, hasn't it, Judge Aldisert?
    Judge Aldisert. Yes.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Sessions.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    I feel like I need to say ``may it please the Court.'' 
Thank you all for being here. It is very important, I believe, 
to have testimony from people that know this nominee. We have 
heard a lot of wild and crazy, from my perspective, accusations 
that have been unsubstantiated from people who don't know this 
nominee as well as you do.
    I want to just try to eliminate one concern that has been 
expressed, and I have heard a hint of criticism about these 
judges appearing as witnesses in this hearing, supposing that 
perhaps there would be some conflict of interest if your 
decisions would be appealed to the United States Supreme Court 
and Justice Alito had to sit on it. I haven't noticed any lack 
of willingness to disagree with him while you were colleagues 
on the Third Circuit. That seems highly unlikely.
    And for the suggestion that this is somehow unprecedented 
to have judges, former and current sitting judges testify, Mr. 
Chairman, I have a list of examples where sitting members of 
the Federal judiciary have testified during the confirmation 
proceedings of another Federal judge. And I would ask that that 
be made a part of the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Cornyn. Canon 4B of the Code of Conduct for U.S. 
Judges provides a judge may appear at a public hearing before a 
legislative body--there are some ellipses there--on matters 
concerning the law, the legal system and the administration of 
justice to the extent it would generally be perceived that a 
judge's judicial experience provides special expertise in the 
area.
    And I regret, Your Honors, that you somehow get sucked into 
the contentiousness and some of the unfairness that occurs 
sometimes, the innuendo that sometimes arises when you are a 
witness in a contested proceeding. And as you can tell, these 
hearings have become, and the confirmation process, an 
adversarial process.
    The unfortunate part is, as our Chairman has noted before, 
it is not controlled by the rules of evidence. It could be 
based on speculation, hearsay and rumor, whereas we know in a 
court of law that wouldn't be admissible. And our procedures 
are a lot more flexible and open-ended, and certainly there is 
no standard of review that applies to judges in your 
distinguished and exalted position as members of the Federal 
judiciary.
    Judge Aldisert, I want to say that I guess I am the only 
other member of this Committee who has probably read one of 
your books, but I am certainly familiar with your great work 
and your writings. And, of course, as has already been noted, 
Judge Becker is very familiar to the Judiciary Committee.
    I want to ask both Judge Gibbons, who is no longer on the 
bench, and Judge Becker--both of you have talked about the 
transforming experience of crossing over from being an ordinary 
lawyer, including a U.S. Attorney, and then putting on the 
black robe, after you have put your hand on the Bible and taken 
an oath to uphold the laws and Constitution of the United 
States, so help me God, and what a different perspective that 
provides, a different obligation, different responsibilities. 
And I think Judge Trump Barry noticed that transformation in 
this nominee when he crossed over from being a practicing 
lawyer to becoming a member of the judiciary.
    Judge Becker, I wonder if you just might comment. We just 
have a couple of seconds here, but this morning Senator Biden 
was asking questions about this nominee's views on Roe v. Wade, 
perhaps as reflected in an application he made for a job in 
1985. And it seemed to raise the question of, well, if that is 
your view today, wouldn't you just feel free to go in and vote 
to overrule it?
    And it struck me because of the difference in a judge's 
role from that of an advocate. He was applying for a job as 
part of the Reagan administration. But on one hand, he was 
talking about, well, maybe you have the power, but what Judge 
Alito seemed to talk about most was legitimacy of the judicial 
process and the judgments rendered by courts and why that is 
such an integral part of the role judges play in our system of 
government.
    Would you please respond to that?
    Judge Becker. Well, I agree with Judge Alito and I think, 
Senator Cornyn, that you have eloquently described the 
transforming experience. I know that it is within your life's 
experience when you took the oath of office to be a justice of 
the Texas Supreme Court. It just transforms you. You become a 
different person and your obligation is to the rule of law and 
you have no interest in a case.
    And if I could just seguey this into your original point 
which bears upon what Senator Leahy had to say in terms of 
whether or not a Justice of the Supreme Court would have to 
recuse on an opinion I wrote on one of our cases, I have no 
interest in the case. Recusal is a function of whether or not 
the party or the lawyer has an interest in the case, but I 
don't have any interest in any case. None of us have any 
interest in any case, and this is consistent with what Judge 
Alito said and your description of that transforming 
experience.
    Senator Cornyn. Mr. Chairman, I would just say Judge 
Gibbons and Judge Lewis are no longer members of the bench and 
I am sure have experienced the liberating transformation once 
you cross back over that Rubicon, perhaps, as well.
    Thank you very much.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Coburn.
    Senator Coburn. Thank you very much, and I appreciate so 
much you all taking the time to come here. As a physician, I am 
starting to learn some of the lingo of the legal profession. It 
is hard, but I am going to start talking in doctor's terms so 
the rest of them can't understand.
    Judge Barry, I wanted to ask you, and also Judge Lewis, do 
you think that there is any merit whatsoever to the allegations 
that were made that Judge Alito is hostile to the rights of 
women or minorities, and have you seen that in the 30 years--
have you seen any indication whatsoever either in his opinions, 
his personal life, his interpersonal relations with you, or 
you, Judge Lewis, that there is any indication that there is 
that type of bias in this man?
    Judge Barry. I have never seen it, and if I had seen it, I 
would not be here today.
    Senator Coburn. Judge Lewis?
    Judge Lewis. I have already said that if I sensed that Sam 
Alito during the time that I served with him or since then was 
hostile to civil rights or would be hostile to civil rights as 
a Justice of the United States Supreme Court, I absolutely 
would not be here today. I am not interested in saying anything 
on behalf of someone that I believe would hold views like that 
or would proceed in that way.
    I am basing what I am saying on my years of experience in 
conference with him, discussing cases and--we have different 
views and different approaches, but never would I suggest--did 
it seem to me that he held any hostility to civil rights, which 
is an area that I hold very dear and is very important to me 
and remain committed to furthering in this country.
    Senator Coburn. Thank you. Well, Mr. Chairman, I don't 
think you can have a better recommendation than the people that 
you work with and the people that you spend the greatest amount 
of time with and the people who see you under stress who make 
evaluations.
    The greatest tragedy, I think, of this hearing is the 
allegations that have been made that aren't substantiated based 
on fact, that are substantiated on the basis of the fact that 
you want to try to destroy somebody's character and undermine 
their character to make them look a certain way which they are 
not.
    I appreciate you all's very straightforward answer and I 
thank you for coming, and I yield back my time.
    Chairman Specter. Thank you very much, Senator Coburn.
    The question has been raised as to precedents, and Senator 
Cornyn has addressed that and it is worth mentioning just a 
few. Former Chief Justice Burger testified for Judge Bork. 
District Judge Craig testified for Chief Justice Rehnquist. 
District Judge Tanner testified for Justice Thomas.
    The canons, specifically 4B, of the conduct of U.S. judges 
make a specific allowance for this kind of a situation, quote, 
``judicial experience provides special expertise to the area.'' 
And it is certainly obvious that the insights which you judges 
have to Judge Alito's background are unique. When you talk 
about what goes on in those conferences, you are the only ones 
who are there and you have much more insight as to the opinions 
he has written that you have worked with him on.
    We have 30 witnesses who are coming in and that has been a 
traditional part of the process, but I know of no situation 
where witnesses have more to say which is relevant and weighty. 
Perhaps weight is the best evidentiary characterization of what 
you have had to say. A lot of things can be relevant, but 
especially where you have the issue which has been before this 
Committee as to Judge Alito's agenda or Judge Alito's approach 
or Judge Alito's personal views dominating his judicial 
determinations, this panel is right on the head.
    It has been an unusual panel, but that is really not a 
strike against the practice. It may be a precedent for the 
future and it, I think, will be a good precedent. But whenever 
you try something new, there are differing voices, but I think 
it is an extraordinary contribution which this panel has made 
to this process.
    So, former Chief Judge Becker, Chief Judge Scirica, Judge 
Barry, Judge Aldisert, Judge Gibbons, Judge Lewis, Judge Garth 
from Phoenix, Arizona, you lucky fellow, we thank you all very 
much for coming in.
    We are going to take only a 10-minute break now. I didn't 
have a chance to discuss it with Senator Leahy, but we do not 
have the situation where Judge Alito is on the stand and he 
needs a little longer break. We will have fresh witnesses and 
tired Senators.
    Ten minutes. We will resume at 5:20.
    [Recess from 5:10 p.m. to 5:20 p.m.]
    Chairman Specter. We will now proceed with panel three, and 
our first witness is Edna Axelrod, who has known Judge Alito 
for nearly 20 years, having worked with him when he was United 
States Attorney. She is a sole practitioner in South Orange, 
New Jersey. She served in the U.S. Attorney's Office from 1980 
to 1983 and 1985 to 1994 during Judge Alito's tenure as U.S. 
Attorney. She had an important position as the Chief of the 
Appeals Division. She is a graduate of Duke's Law School, has a 
master's degree in Law from Temple, and we welcome you here, 
Ms. Axelrod.
    We are going to have to be mindful of the time because we 
have four panels and about 23 witnesses.
    Senator Leahy. Are you going to finish tonight?
    Chairman Specter. Well, I would like to, but it is subject 
to negotiation with you, Senator Leahy.
    Senator Leahy. Mr. Chairman, could I just ask unanimous 
consent that a number of letters I have and usual things to put 
in the record?
    Chairman Specter. Sure. Without objection, they will be 
made a part of the record.
    Thank you, Ms. Axelrod, for being here, and we are starting 
the clock at 5 minutes.

STATEMENT OF EDNA BALL AXELROD, ATTORNEY AT LAW, LAW OFFICES OF 
          EDNA BALL AXELROD, SOUTH ORANGE, NEW JERSEY

    Ms. Axelrod. Thank you. Thank you, Mr. Chairman and members 
of the Committee. I appreciate the opportunity to appear here 
today to testify in support of the nomination of Samuel Alito. 
I am a former Chief of the Appeals Division at the United 
States Attorney's Office for the District of New Jersey, and 
for the past 11 years I have practiced as a Federal criminal 
defense attorney in northern New Jersey. At this point in these 
proceedings, I am sure there is little need to provide further 
comment concerning Judge Alito's legal acumen and outstanding 
accomplishments. However, I hope that the Committee may find it 
useful to hear the insights and observations of someone who 
worked closely with Judge Alito during the period of time that 
he served as United States Attorney for the District of New 
Jersey.
    I first met Judge Alito when I joined the United States 
Attorney's Office in 1980. At that time, he was laboring in the 
Appeals Division, and I was in the Frauds Division. As a 
rookie, I quickly learned that if I ran into a particularly 
thorny legal or procedural problem, the most knowledgeable and 
approachable person to consult was Sam Alito. Although he soon 
left for the Solicitor General's Office, he returned in 1987 as 
United States Attorney. Shortly after his arrival, he began 
selecting the supervisory staff who would assist him during his 
tenure, and after reviewing my work in the Appeals Division, he 
asked me to serve as Chief of Appeals. This was particularly 
meaningful to me for two reasons: First, Judge Alito's 
estimable reputation as an appellate and Supreme Court advocate 
had preceded him, and the importance that he placed on the 
appellate process was well known. Second, in 1987, it was still 
unusual for women to be elevated to positions of authority in 
either Government or private offices, and I was gratified to 
see Judge Alito's appointments were based on merit, not gender.
    As a member of the supervisor staff, I met frequently with 
Judge Alito, sometimes alone but usually with other division 
chiefs, to discuss ongoing significant criminal prosecutions, 
appeals, and investigative initiatives. During these meetings 
he openly invited the thoughts and input of everyone, asking 
subtle questions to guide the discussion to areas where he had 
concerns. Although it was clear that in the end he would make 
up his own mind, it was equally clear that there was no danger 
in advocating a position that he might ultimately reject. His 
goal was to get as much information as possible so his 
decisions could be firmly grounded in a comprehensive 
understanding of the law and the facts.
    Consistent with this approach, his stewardship of the 
office was grounded in quiet confidence; his decisions and 
actions were measured and thoughtful--never impulsive or purely 
reactive. Although it is possible for U.S. Attorneys to use 
their offices as showcases for themselves and their further 
aspirations, that is, to enjoy and employ the limelight, this 
was never Judge Alito's way. It was always the work, not the 
image, that came first.
    It is a well-known motto of Federal prosecutors--one most 
often heard on those occasions when they suffer a defeat--that 
``the United States wins when justice is done.'' Under the 
leadership of Samuel Alito--and I should say ``Judge Alito''--
that was more than a catch-phrase. It was office policy. Judge 
Alito expected the assistants in his office to work hard to 
achieve and preserve convictions where the evidence supported 
guilt, but he also demanded that they remain ever mindful of 
the very great power that they wielded as Federal prosecutors 
and the need to use that power with appropriate discretion. 
Based on my experience in that office, I am confident that 
Judge Alito would approach the power of being on the Supreme 
Court with an equal if not heightened sense of responsibility 
and care.
    As I noted earlier, I am present a criminal defense 
attorney, and I am also a lifelong Democrat. As such, I might 
be expected to have concerns about Judge Alito's nomination. 
However, in supporting his nomination, I am actually 
representative of a large number of former colleagues of Judge 
Alito of all political stripes who support his nomination 
because they know firsthand what kind of man he is. Those of us 
who know him know that he is not an ideologue and that he does 
not use his position to pursue personal agendas. We have seen 
his profound respect for the law and precedent and his 
unfailing respect for all participants in the criminal justice 
system, prosecutor, defense counsel, and defendants alike. We 
know him to be a man of unquestionable ability and integrity, 
one who approaches each case in an open-minded way, seeking to 
apply the law fairly.
    The appointment of Sandra Day O'Connor to the Supreme Court 
in 1981 was an event of special importance to me. At the time I 
thought that the most significant fact was that she was a 
woman, the first woman on the Court, and, of course, that was 
truly ground-breaking. But in time I have come to appreciate 
that, more than her gender, it is her extraordinary mixture of 
character and intellect that has most profited our country. As 
a person of both great character and great intellect, Samuel 
Alito would be a worthy successor to Justice O'Connor, and I 
hope that he will be speedily confirmed.
    Thank you very much.
    [The prepared statement of Ms. Axelrod appears as a 
submission for the record.]
    Chairman Specter. Thank you, Ms. Axelrod.
    Our next witness is Professor Michael Gerhardt, 
distinguished professor of constitutional law at North Carolina 
School of Law. Professor Gerhardt is the author of a number of 
books on constitutional law, served as special consultant to 
the White House on the nomination of Justice Stephen Breyer. He 
received his bachelor's degree from Yale in 1978, master's from 
the London School of Economics, and law degree from the 
University of Chicago in 1982.
    Thank you for joining us, Professor Gerhardt, and the floor 
is yours for 5 minutes.

  STATEMENT OF MICHAEL J. GERHARDT, SAMUEL ASHE DISTINGUISHED 
 PROFESSOR OF CONSTITUTIONAL LAW, UNIVERSITY OF NORTH CAROLINA 
     AT CHAPEL HILL LAW SCHOOL, CHAPEL HILL, NORTH CAROLINA

    Mr. Gerhardt. Thank you very much, Mr. Chairman, Senator 
Leahy, and other distinguished members of the Committee.
    For almost 20 years, I have had the honor of teaching 
constitutional law. For almost as long, I have studied the 
process of Supreme Court selection in some detail and have had 
the privilege and opportunity to write about it at some length. 
And I come to you today with the hope that whatever expertise I 
have developed in that process may be of some use to you.
    In this statement, I want to just make three brief 
observations as extensions of my written statement, which you 
already have.
    First, the Constitution allows every Senator to make a 
decision about a Supreme Court nomination based on whatever 
factors he or she considers to be pertinent, including judicial 
philosophy. The Constitution, I believe, does not require 
absolute deference to a President when it comes to making 
Supreme Court nominations, nor, for that matter, does it 
require hostility. The Constitution allows you, I think, to do 
what you see fit. It allows you to engage in a robust dialog 
about the qualifications for service on the Supreme Court.
    With that in mind, I just want to give you one brief 
example of what I am talking about what the Constitution allows 
just to illustrate, I think, the robustness of the process that 
we shouldn't be ashamed of but, in fact, should be prepared to 
embrace.
    Much has been said about the fact that Judge Alito has had 
the most judicial experience of any nomination made to the 
Supreme Court in almost 70 years, but nobody mentions who that 
other nominee was. The other nominee that preceded him was 
Benjamin Cardozo, and Cardozo, as we probably all know, was not 
President Hoover's first choice. It wasn't even President 
Hoover's second choice. In fact, he was the choice of the 
Senate. And the Senators came to the President and said, in 
effect--in fact, members of this Committee came to the 
President and said, in effect, that this is the person we want, 
here are the criteria we think are important. President Hoover 
was not obliged in any way, shape, or form to accept that, but 
he did. And I simply make that observation to underscore the 
fact that there is an opportunity for exchange between the 
Presidency and the Senate with respect to a Supreme Court 
nomination, and we should be prepared and as open as possible 
in talking about the qualifications for service. And, again, if 
each of you believes to some extent judicial philosophy is 
appropriate, it is important to say so and to act accordingly.
    Second, you know better than I the important function of 
this Committee as a gatekeeper. You are in the position, at 
least the initial position, of being able to sort of filter out 
the views and personnel you don't want to see reflected on the 
Supreme Court, or you are in the position of determining what 
views and personnel you do want to have on the Supreme Court. 
The Supreme Court is largely a function of choices made by the 
President and the Senate. The Senate and the President help to 
make the Supreme Court what it is. And I think that that dual 
partnership is something we ought to keep in mind because in 
making determinations and judgments about a Supreme Court 
nomination, the Senate has an extremely important role to play. 
And the more vigorously you perform that role, I think the more 
credit it does to you, and the more we can be assured that 
whatever choice gets made about the people that serve on the 
Court, we can have confidence that they can be there, that they 
can trust the--that they are worthy of the trust you have given 
them to exercise the awesome power of judicial review over the 
constitutionality of not just your actions, but the actions of 
other branches.
    Third, I must confess--and I regret this--an error in my 
written statement. I discuss in this written statement the 
importance of assessing whether or not Judge Alito was a 
bottom-up or top-down judge. A bottom-up judge is somebody who 
decides incrementally, one at a time, and has a great deal of 
respect for precedent. A top-down judge is somebody who tends 
to infer principles directly from the Constitution and then 
impose them from the top down. And in the course of trying to 
figure out whether Judge Alito was bottom-up or top-down, I 
made a mistake in not identifying Justice Harlan as one of the 
Justices he most admires. I just want to sort of correct that 
error. The reverence for Justice Harlan is almost universal. He 
is certainly one of the Justices I most admire.
    But the admiration for Justice Harlan does raise a 
question, and the question is this: How, if at all, does Judge 
Alito's reverence for Justice Harlan make him the same kind of 
judge or a different kind of judge than other Justices who also 
have admired Justice Harlan, including Justice Kennedy and 
Justice Souter? Is he the same kind of judge as they are, or is 
he a different kind of judge?
    Reverence for Justice Harlan is obviously pertinent, it is 
important, but it may only tell us so much. And I think it is 
useful and very important for you not to shy away from asking 
the tough questions. You have asked the tough questions. I 
think it does you credit. I think that is what this process is 
all about, and I am privileged to be a part of it.
    Thank you.
    [The prepared statement of Mr. Gerhardt appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Gerhardt.
    Our next witness is Commissioner Peter Kirsanow, U.S. 
Commission on Civil Rights, Partner with the law firm of 
Benesch Friedlander. He is also on the board of directors of 
the Center for New Black Leadership, and on the advisory board 
for the National Center for Public Policy Research. His 
bachelor's degree is from Cornell, law degree from Cleveland 
State with honors.
    Commissioner Kirsanow has reviewed Judge Alito's civil 
rights record and will testify as to his conclusions in that 
area.

   STATEMENT OF PETER N. KIRSANOW, U.S. COMMISSION ON CIVIL 
RIGHTS, AND PARTNER, BENESCH FRIEDLANDER COPLAN & ARONOFF, LLP, 
                        CLEVELAND, OHIO

    Mr. Kirsanow. Thank you, Mr. Chairman, Senator Leahy, 
members of the Committee.
    The U.S. Commission on Civil Rights was established 
pursuant to the 1957 Civil Rights Act, among other things, to 
act as a national clearinghouse for matters pertaining to 
discrimination and denials of equal protection. And in 
furtherance of the clearinghouse responsibility and with the 
help of my assistant, I have reviewed the civil rights cases in 
which Judge Alito has participated on the Third Circuit, as 
well as his record as an advocate before the Supreme Court in 
the context of prevailing civil rights jurisprudence.
    Our examination reveals that Judge Alito's approach to 
civil rights is consistent with the generally accepted textual 
interpretation of the relevant constitutional and statutory 
provisions, as well as governing precedent. His civil rights 
opinions evince appreciable degrees of judicial precision, 
modesty, restraint and discipline, and in short, his civil 
rights record is exemplary, legally sound, intellectually 
honest and with an appreciation and understanding of the 
historical bases undergirding our civil rights laws.
    Our examination also reveals that several aspects of Judge 
Alito's civil rights record have been mischaracterized, some of 
the criticisms misplaced. Just three brief examples.
    First, some have contended that Judge Alito has a 
regressive or anti-civil rights view of affirmative action, one 
that is to the right of Justice O'Connor. This contention is 
based on three affirmative action cases in which Judge Alito 
participated on brief, while he was with the Solicitor 
General's Office in the Reagan administration. These three 
cases are Wygant v. Jackson Board of Education, Sheet Metal 
Workers v. EEOC, and Firefighters v. Cleveland, all of which 
involved expansive racial preferences as remedies for 
discrimination. Notwithstanding the fact that positions 
espoused as an advocate are poor proxies for interpretive 
doctrine, there is nothing in the record to suggest that Judge 
Alito would somehow restrict remedies currently available under 
United Steelworkers v. Weber, or Johnson v. Transportation 
Agency any more so than Justice O'Connor would.
    Judge Alito essentially argued that rigid quotas are 
unlawful, and opposition to quotas and expansive racial 
preferences do not evince a hostility to affirmative action, 
let alone civil rights in general.
    Second, some critics have said that Judge Alito's decision 
or dissent in Bray v. Marriott is evidence of his supposed 
tendency to impose ``almost impossible evidentiary burdens on 
Title VII plaintiffs.'' But a review of Bray shows that Judge 
Alito's dissent actually steadfastly adheres to Third Circuit 
precedent, and carefully applies the law to the facts, as the 
majority opinion seems to dilute the commonplace standard of 
proof in a Title VII case reducing or converting the burden of 
production on the part of a defendant into a burden of proof.
    The third contention unsupported by our examination is that 
Judge Alito's civil rights record is out of the mainstream. 
Judge Alito participated in 121 Third Circuit panels that 
decided cases that may be termed in the traditional sense civil 
rights cases. Now, one would expect that if someone were out of 
the mainstream, that by definition he would rarely agree with 
his colleagues on the Third Circuit, and moreover, you would 
expect that he would almost never agree with his Democratic 
colleagues and would vote overwhelmingly with his Republican 
colleagues. But an examination of Judge Alito's extensive 
record on the Third Circuit shows that his co-panelists on 
civil rights cases actually agreed with his written opinions 
and votes 94 percent of the time, and that is whether or not 
those panelists were Republican or Democrat, and in fact, 
produced unanimous decisions 90 percent of the time. Moreover, 
judges appointed by Democratic Presidents actually agreed with 
Judge Alito's civil rights positions at a slightly higher rate 
than his Republican colleagues by a margin of 96 percent to 92 
percent. In fact, judges appointed by Democratic Presidents 
Johnson, Carter and Clinton agreed with Judge Alito's civil 
rights position at the same or slightly higher rate than judges 
appointed by President Reagan or either President Bush.
    Obviously, in order to fairly assess Judge Alito's civil 
rights cases, you have to look at the actual facts and 
applicable law in each case, but it cannot be credibly stated 
that Judge Alito is hostile to civil rights, out of the 
mainstream, or extreme, without leveling the same charges 
against every other judge on the court, whether Republican or 
Democrat.
    I respectfully submit that Judge Alito's 24-year record on 
matters pertaining to civil rights demonstrates a firm and 
unwavering commitment to equal protection under the law, and he 
has a comprehensive and precise understanding of our civil 
rights laws that will make him an outstanding addition to the 
Supreme Court.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Kirsanow appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Commissioner 
Kirsanow.
    Our next witness is Professor Samuel Issacharoff, Reiss 
Professor of Constitutional Law at New York University School 
of Law, an author of several books focusing on voting rights 
and civil procedure. He had taught at the Texas Law School. 
Bachelor's degree from Binghampton University in 1973 and law 
degree from Yale in 1983.
    Thank you for joining us, Professor, and we look forward to 
your testimony.

      STATEMENT OF SAMUEL ISSACHAROFF, REISS PROFESSOR OF 
  CONSTITUTIONAL LAW, NEW YORK UNIVERSITY, NEW YORK, NEW YORK

    Mr. Issacharoff. Thank you, Mr. Chairman, Senator Leahy, 
members of the Committee. I want to direct my remarks to the 
question of the reapportionment cases and the significance of 
the Court's role in overseeing the basic fairness and integrity 
of our political process.
    I raise this issue because the reapportionment cases stand 
for something beyond simply the doctrine of one person/one 
vote. They also stand for the role that the Court has to play 
in making sure that the political process does not turn in on 
itself and does not close out those who are not able to 
effectively marshal their votes, their power, their support 
under the rules that govern the political process.
    It is significant because no Justice of the Supreme Court 
over the past 35 years has hesitated to assume the 
responsibility so well articulated by the Supreme Court in the 
famous Carolene Products footnote. Justice Stone, in 1938, on 
behalf of the Court, recognized a special need for exacting 
judicial review in the case of laws, and these were his words, 
``that restrict those political processes which can ordinarily 
be expected to bring about repeal of undesirable legislation.'' 
The reapportionment cases of the 1960s, the cases that appear 
to have so deeply concerned Judge Alito as a young man, were 
the realization of the Carolene Products insight.
    In the 40 years that have passed since the reapportionment 
cases, the Supreme Court has bravely entered into the political 
thicket. Sometimes the Court's role is simply what appears to 
be routine, such as access to the ballot and the polling place, 
sometimes it is the truly extraordinary as with Bush v. Gore. 
The result of these interventions, although obviously not 
without controversy, is a political system that is more open 
and more participatory that at any time in our history.
    It is difficult to imagine in this day and age any serious 
objection to the rights identified in these cases. In Reynolds 
v. Sims, for example, Chief Justice Warren wrote that ``Full 
and effective participation by all citizens in State Government 
requires that each citizen have an equally effective voice in 
the election of members of his State legislature.''
    But it is also well to recall the facts presented in these 
cases. The willful failure to reapportion had transformed 
American legislative districts into grossly unrepresentative 
institutions in which voters of the growing cities and suburbs 
found themselves unable to participate effectively in a 
political process controlled by rural minorities.
    In Alabama, the site of Reynolds v. Sims, one county had 41 
times as many representatives per person as another. That 
pattern was repeated across the country. In California, to pick 
just one, Los Angeles County had one State Senator, as did 
another county with one one-hundredth of its population.
    While the basic principle of one person/one vote may now be 
so deeply embedded in our culture as to seemingly defy any 
controversy, its implementation was another matter, and I think 
that is what is significant about these cases. Those whose 
votes were discounted to the point of irrelevance were 
repeatedly frustrated by entrenched political power. The 
intervention of the Supreme Court was indispensable, indeed, it 
was the single most successful remedial effort by the Supreme 
Court in our history. It changed and made fundamentally more 
democratic the legislative process, and it made the legislative 
process one that was deserving of judicial deference.
    When I teach these cases today to students, however, and 
even when I was a law student in the early 1980s, the idea of 
one person/one vote appears so elemental, so in keeping with 
the most rudimentary sense of democracy and legitimacy, that 
students cannot even fathom that a society, a democratic 
society could be organized on any other basis.
    I do not know how a young college student in 1970 might 
have reacted, particularly when presented with the formidable 
writings of Alexander Bickel. Bickel captured well the tension 
between a commitment to popular sovereignty and the overriding 
commands of the Constitution, and it is well to remember that 
although we turn our attention here to the Court, it is 
obviously the Congress that is a significant and major 
institution expanding our democratic horizons, as with the 
Voting Rights Act of 1965.
    Nonetheless, I would suggest that the fact that the 
reapportionment cases should appear on a job application in the 
1980s is at least a curiosity. Perhaps it was through 
recounting of an intellectual path, but perhaps an indication 
of a continuing view that courts have no business in checking 
the abuses of political power. If it is the latter, it should 
be deeply troubling to this Committee and to the Senate, for 
the issue of the day is not the intellectual trajectory of a 
thoughtful college student, but the implications for the vital 
role the Supreme Court plays in our democratic life.
    Critical issues in the organization of our democracy remain 
unsettled and are going to appear as they do before the Court. 
Our system of redistricting has run amuck, the competitive 
lifeblood drained by self-perpetuating insiders. This may prove 
to be the same sort of structural obstacle to democratic reform 
as had to be dislodged by reapportionment decisions of 40 years 
ago.
    The answer may not be simple, but the role of the Court is 
absolutely critical. So too with campaign finance. So too with 
even the mechanics of our electoral system. In all of these 
areas there is reason to doubt that incumbent officials are 
able to fix the political process that elected them. As Justice 
Scalia has wisely cautioned, ``the first instinct of political 
power is the retention of power.'' While not without 
controversy or difficulty, our collective experience over the 
past 40 years confirms that the Nation is much the better for 
the robust attention of the Court to the health of our 
democracy.
    I would suggest to this Committee and to the Senate that 
before confirming any nominee to the Supreme Court, the Senate 
of the United States should be able to conclude with confidence 
that regardless how a nominee may vote on any given case, he or 
she will assume the full responsibility of protecting the 
integrity of our democratic processes.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Issacharoff appears as a 
submission for the record.]
    Chairman Specter. Thank you, Professor.
    Our next witness is Mr. Carter Phillips, one of the premier 
appellate lawyers in the country. He has handled some 47 cases 
before the Supreme Court of the United States, some of those as 
Assistant to Former Solicitor General Rex Lee. He is a graduate 
of Northwestern School of Law, a clerk for Chief Justice Warren 
Burger, and rated as one of the 100 best lawyers in America by 
the National Law Journal.
    At your hourly, Mr. Phillips, thank you for joining us, and 
how much does 5 minutes cost?
    Mr. Phillips. Well, I will not answer that question, but I 
will tell you that the law firm has taken a hit today.
    [Laughter.]

   STATEMENT OF CARTER G. PHILLIPS, MANAGING PARTNER, SIDLEY 
                 AUSTIN, LLP, WASHINGTON, D.C.

    Mr. Phillips. Thank you, Mr. Chairman and members of the 
Committee.
    Oftentimes it strikes me that baseball metaphors tend to be 
used at these hearings, and it at least impresses me that 
perhaps a tennis metaphor is more appropriate at this point 
based on the testimony of Judge Alito in the last two and a 
half days and the extraordinary eloquent testimony of the Third 
Circuit judges in the last hour or so, it would strike me that 
we ought to be at the point of game, set and match, because it 
seems to me that there can be no serious question about either 
the qualifications on ability or ethics or any other standard 
that this Committee would want to use in reviewing the 
qualifications of Judge Alito to become a Supreme Court 
Justice.
    You have my written testimony. I am not inclined to repeat 
it at this point. One thing I have learned as an appellate 
advocate is if you think you are ahead on points, you would do 
well to sit down and shut up. So all I am going to do is simply 
recount for you my own experiences with Judge Alito when we 
were in the Solicitor General's Office, not because I think 
they add all of that much, but I do think they debunk the 
notion that somehow Judge Alito has long been an ideologue of 
any sort.
    The judge and I met when we both interviewed with Judge 
McCree, who was Jimmy Carter's, President Carter's Solicitor 
General. We were interviewing for a job as Assistants of the 
Solicitor General. We had applied for that position prior to 
the election. Neither of us knew which direction that election 
was going to come out. We were seeking that position not 
because we had any kind of an agenda to fill, but solely 
because each of us hoped to get a very prestigious position.
    Now, as it happened in that first meeting, Judge Alito and 
I ended up being seated together by ourselves when all the 
other members of the Solicitor General's Office went off to 
another table and we had what I think is fairly described as at 
least a little bit of an uncomfortable conversation because we 
had assumed that we were competing for exactly the same job and 
had a very interesting exchange of views about our backgrounds 
and our experiences, he being an existing Assistant U.S. 
Attorney with an extraordinary amount of experience as an 
appellate lawyer, I being a former law clerk and, at that time, 
an assistant professor of law. But we built a great friendship 
based on that conversation and the fact that we both ended up 
in the Solicitor General's Office. Well, what struck me is that 
whether or not the Solicitor General had been Wade McCree or 
whether, as it turned out, the Solicitor General was Rex Lee, 
our service to the United States would have been precisely the 
same.
    And the only thing I would say in that regard is that 
during the three-plus years that I have served with Judge Alito 
in that office, I had an opportunity to talk with him almost 
every day, and in that capacity, I learned an enormous amount 
from him about both his compassion and his intellect and his 
open-mindedness and his enthusiasm to assist all of the lawyers 
in that office. He was a great lawyer. He was a tremendous oral 
advocate. He went on, obviously, to a very distinguished 
career. While I have my own opinions on what he has 
accomplished on the Third Circuit, it seems to me I cannot add 
to the eloquence of what has already been said by the judges of 
that court and I would simply urge this Committee to confirm 
him as a Justice. Thank you.
    Chairman Specter. Thank you very much, Mr. Phillips.
    [The prepared statement of Mr. Phillips appears as a 
submission for the record.]
    Chairman Specter. Professor Goodwin Liu is an expert in 
constitutional law, civil rights, and the Supreme Court at the 
University of California, Boalt Hall. He is a graduate of 
Stanford with his bachelor's degree, and master's from Oxford 
and law degree from Yale Law School in 1998. He served as a law 
clerk for Supreme Court Justice Ruth Bader Ginsburg during the 
October 2000 term.
    Thank you for coming in today, Professor Liu, and we look 
forward to your testimony.

  STATEMENT OF GOODWIN LIU, ASSISTANT PROFESSOR OF LAW, BOALT 
    HALL SCHOOL OF LAW, UNIVERSITY OF CALIFORNIA, BERKELEY, 
                      BERKELEY, CALIFORNIA

    Mr. Liu. Thank you, Mr. Chairman. I am very honored to be 
here today.
    I agree with all of my fellow panelists that Samuel Alito 
has a very talented legal mind. I have read over 50 of his 
opinions. They are very sharp, analytical, intellectually 
honest. But if intellect alone were enough, then these hearings 
would be unnecessary. We care about the judicial philosophy of 
the nominee, and so to prepare for these hearings, I studied 
Judge Alito's opinions on individual rights versus government 
power.
    His record is enormous, and Mr. Chairman, as you have said, 
cherry-picking cases is not very informative. Neither is it 
very informative to look at the entire run of all cases. What 
is informative, I think, is a look at the closest, most 
contested cases, cases where judges on a panel disagreed. These 
are the cases most like the ones at the Supreme Court. The law 
is less clear and judges have to show their stripes.
    I don't think Judge Alito is an ideologue, but I think it 
is important to see what the record says. So I looked at 
several areas where government wields great power: immigration, 
the Fourth Amendment, criminal prosecution. In these areas, 
Judge Alito sat on 52 panels that divided between the 
individual and the government. He voted for the individual only 
four times, three times joining an en banc majority, one time 
writing in dissent. In the other 48 cases, he sided with the 
government. This includes all 13 cases on the Fourth Amendment, 
all eight cases involving erroneous jury instructions, all four 
cases involving the death penalty. On 13 occasions, his vote 
for the government was a dissent from an opinion written or 
joined by a Republican colleague.
    Most of the counter-examples cited in these hearings are 
not terribly illuminating. The constitutional violations are 
clear. The holdings were unanimous. In the contested cases, 
Judge Alito agreed with the government over 90 percent of the 
time, far more often than other appellate judges in similar 
cases, even those appointed by Republican Presidents.
    Now, these figures are not dispositive. Every case is 
different, and I am sure Judge Alito got it right many times. 
But let me give three examples that show his instinct, I think, 
to defer to government power.
    The first is a memo he wrote in 1984 as Assistant to the 
Solicitor General analyzing a case where police saw a burglary 
suspect running across the back yard. The suspect reached a 
fence and an officer called out, ``Police, halt.'' When the 
suspect tried to climb the fence, the officer shot him in the 
back of the head, killing him. The suspect, Edward Garner, was 
an eighth grader with a stolen purse and ten dollars on his 
body. He was not armed and the officer did not think he was. 
The sole reason for his killing was to prevent his escape.
    Judge Alito's memo, speaking for no one but himself, said, 
``I think the shooting can be justified as reasonable within 
the meaning of the Fourth Amendment.'' In a remarkable passage, 
he argued that using deadly force to stop a fleeing suspect 
rests on, and I quote, ``the general principle that the state 
is justified in using whatever force is necessary to enforce 
its laws.'' In 1985, the Supreme Court rejected this view.
    Second, in a 2004 case, the FBI installed a secret video 
camera in a suspect's hotel room. This was done without a 
warrant on the ground that the FBI turned on the camera only 
when the target allowed an undercover informant into the room. 
Judge Alito accepted this logic, even though the camera 
remained in the room day and night. The dissent called the 
surveillance Orwellian, limited only by the government's self-
imposed restraint. Judge Alito seemed not to grasp that the 
concept of a warrant puts a judge between the citizen and the 
police precisely because our privacy is too precious to entrust 
to law enforcement alone. The NSA program of warrantless 
eavesdropping is also being defended by assurances of executive 
self-restraint.
    Finally, in 1997, there was a capital case where two Reagan 
appointees, both former prosecutors, found a misleading jury 
instruction unconstitutional. Judge Alito said the instruction 
was ambiguous and inadvisable, but adequate to convict the 
defendant of first degree murder. He also said the court should 
not have heard the claim at all because defense lawyers did not 
argue it in prior appeals. But the State never raised this 
argument to the inmate's claim. Judge Alito raised it himself. 
The court chided him for nearly crossing the line between a 
judge and an advocate.
    Civil liberties are sometimes seen as obstacles to law 
enforcement. But as Justice Frankfurter once said, the 
safeguards of liberty are often forged in cases involving not 
very nice people.
    Mr. Chairman, liberty is not safe in an America where 
police can shoot and kill an unarmed boy to stop him from 
escaping with a stolen purse, where judges occasionally aid 
prosecutions by raising arguments that the State itself did not 
raise, and where the FBI can install a camera where you sleep 
on the promise that they won't turn it on unless they have to.
    Mr. Chairman, this isn't the America we know and it isn't 
the America we aspire to be. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Professor Liu.
    [The prepared statement of Mr. Liu appears as a submission 
for the record.]
    Chairman Specter. Mr. Phillips, how would you evaluate the 
comments Professor Liu has made?
    Mr. Phillips. Well, with respect to the memorandum to the 
Solicitor General, I think the notion that that is an 
individual opinion is not a very apt description of at least 
what I viewed my role when I was an Assistant to the Solicitor 
General. What we did in that context, and in this particular 
case, what he was doing, was proposing that an amicus brief be 
filed on behalf of the United States in support of the State of 
Tennessee's position. In that process, I mean, it may be that 
that sentence, and I don't have the context of it to understand 
it completely, but at that stage, all he is doing is proposing 
that a brief be filed. It would be interesting to see what the 
ultimate brief said and whether or not it staked out a position 
quite as aggressive. But because that is part of the 
deliberative process that goes on, it is the same deliberative 
process that goes on with respect to the courts.
    I mean, I don't disagree that it makes sense to look at the 
most contentious cases as a legitimate way to examine that, but 
again, I don't think you can take--and I do think this is a 
classic instance of cherry-picking--I don't think you can take 
out one or two specific examples and say this somehow reflects 
anything about the body of work of a judge who has been on the 
bench for 15 years and in the face of the testimony we just 
heard from colleagues of his who spent literally more than 
decades with him and whose view is that he comes to each case 
with an open mind and thoroughly analyzes each one and performs 
this in a bottom-up, not a top-down process.
    Chairman Specter. Ms. Axelrod, you know Judge Alito 
extensively. How would you respond to Professor Liu's 
testimony?
    Ms. Axelrod. Well, I had the same reaction concerning the 
first case that was mentioned, when he was in a role as an 
advocate and was trying to come up with the different 
perspectives that you would bring to a case as an advocate for 
the government, where your job is to figure out whether or not 
you are going to be supporting the result below. He was doing 
his job and he was doing it appropriately.
    And the other cases, I think you have to look at the cases 
more closely than you can in basically a soundbite during a 
few-minute presentation. You have to look at the arguments that 
were made on both sides. You have to look at what the standard 
of review was. You need to see the facts. I am sure that the 
professor analyzed these cases ably, but I would not be 
persuaded simply by a short summary of them that the reasoning 
was unfounded, even if I disagreed with it, which I very well 
might have, without seeing more.
    Chairman Specter. Commissioner Kirsanow, what is your 
evaluation of Judge Alito's record as it applies to civil 
rights issues with African-Americans?
    Mr. Kirsanow. Well, as I indicated before, it is exemplary. 
We took a look at several hundred cases, 121 specifically, and 
we drew a very broad net to encompass the broadest definition 
of civil rights possible, but we also drew a more narrow net 
for the more traditional civil rights cases, the Title VII 
cases where it is more likely that you are going to find an 
African-American plaintiff.
    And what we saw there is, and I referred to Bray v. 
Marriott, I think it is emblematic of the kind of approach 
Judge Alito has. He is very precise. Earlier on, I heard 
testimony with respect to is he in favor of the little guy or 
the big guy, and I think I would hearken back to Judge Alito's 
opening, where he says that no one is either above the law or 
below the law. I don't think that he is outcome-driven. He is 
looking at upholding the law, whether or not that redounds to 
the benefit of the big guy or the little guy, and I think that 
is the classic example of someone who hues closely to the most 
profound protections of civil rights.
    Chairman Specter. Professor Issacharoff, is there any doubt 
in your mind that Judge Alito will uphold the one man/one vote 
rule?
    Mr. Issacharoff. I don't think there is any doubt that he 
would uphold one person/one vote as an abstract matter. I think 
that the broader question that is raised by his earlier 
comments, and I heard nothing in these hearings that really 
addressed this, is a deeper one about the role of the court in 
checking the abuses of incumbent power. So while I don't in any 
way question that he has, as much as all the rest of us have, 
internalized the one person/one vote principle, my reservation 
would be on the willingness to use judicial power to check 
malfunctions in the political process.
    Chairman Specter. Professor Gerhardt, you say that the 
Senate ought to be an active participant in the selection of 
Supreme Court Justices. To what extent do you think that, with 
a heavy campaign on the judicial issue, the President has 
latitude to pick judges as he wants on the political spectrum, 
and how could the Senate really effectuate your idea?
    Mr. Gerhardt. I think the idea I am describing is the 
system that we have got. I don't mean to suggest a different 
kind of system, Senator. The President may do exactly as you 
suggest, pick somebody based on whatever criteria he likes. I 
am just suggesting that I think it is perfectly consistent with 
the structure and history of our Constitution for Senators then 
to provide an independent judgment of his criteria and to 
assess them on whatever other criteria they think are 
appropriate.
    Chairman Specter. The red light went on during your 
answer--
    Mr. Gerhardt. Sorry.
    Chairman Specter. Senator Leahy?
    Senator Leahy. I think he is referring to himself, 
Professor. Good to see you again.
    I just want to followup on Professor Issacharoff, and I was 
pleased to meet your son, Lucas, here earlier. That way, his 
name is in the transcript.
    Mr. Issacharoff. Thank you, Senator.
    [Laughter.]
    Senator Leahy. We have talked about the 1985 job 
application of then Sam Alito for a job in Ed Meese's Justice 
Department. He stated he developed an interest in 
constitutional law motivated in large part--in large part--by 
disagreement with the Warren Court decisions, particularly in 
the area of reapportionment. Now, in the questions he was asked 
here, he retreated from that unqualified disagreement and said 
that it was based on certain details of later Warren Court 
decisions, like the 1969 case, Kirkpatrick v. Preisler.
    Mr. Issacharoff. Yes.
    Senator Leahy. Doesn't it seem incredible that he was 
telling Mr. Meese in 1985 that in 1969, as a young college 
student, he was so incensed by the Kirkpatrick case, it 
motivated to study constitutional law?
    Mr. Issacharoff. I think the Kirkpatrick case had some 
impact in the Alito household because of the particular role 
that his father played. But his statement refers to an 
intellectual excitement based on the writings of Professor 
Bickel of Yale. Professor Bickel was not concerned with the 
implementation of one person/one vote. Professor Bickel was 
concerned, as was Justice Harlan at the time, that the Court 
should have no business in this area whatsoever, that whatever 
the political process did, whatever the malfunctions of 
politics might be, the courts simply were not to be engaged in 
that process.
    That is the idea that was animating Professor Bickel, and 
one has to assume was animating the young Sam Alito.
    Senator Leahy. And, of course, Justice Harlan was one of 
his heroes. Had we followed that idea of Harlan's dissent, and 
others, we wouldn't have had reapportionment around this 
country, would we?
    Mr. Issacharoff. There were--
    Senator Leahy. Unless reapportionment was done politically 
by those who would reapportion themselves out of office.
    Mr. Issacharoff. The history of the United States was that 
for the 20th century, until we got these cases in the 1960s, 
incumbent officials simply did not reapportion. They had a 
constitutional duty, including this body, in the 1920s, the 
Congress, the Senate of the United States, decided not to 
reapportion. The Congress simply said why should we reapportion 
ourselves out of business, we will just refuse, even though we 
have a constitutional obligation.
    The lesson was that when power decides to close in on 
itself and pull the ladders up behind it, the courts have to be 
there. Professor Bickel was deeply disturbed by this, and when 
I read in 1985 that somebody is saying that, ``That is what 
brought me to constitutional law.'' it opens questions. I don't 
have an answer, but certainly I do find it puzzling.
    Senator Leahy. Thank you.
    Professor Liu, listening to the two cases you described, 
the 10-year-old boy shot in the back by an officer who didn't 
believe he was armed, and in any event, he wasn't coming at the 
officer, he was leaving, the TV in the hotel room, the bedroom, 
these things really bother me. And you now have the emerging 
story that the President may have violated--actually, the 
Congressional Research Service believes he has--and ordered 
others to violate the criminal provisions of the Foreign 
Intelligence Surveillance Act by spying on Americans. Do you 
think from what you have seen here today that we should take 
great comfort that a potential Justice Alito would stand up to 
the President on those kind of issues?
    Mr. Liu. Well, Senator--
    Senator Leahy. And I look at how deferential he has been to 
law enforcement, and I served in law enforcement, as did our 
Chairman. I have a very soft, warm part in my heart for law 
enforcement. The only thing in my personal office that has my 
name on it is my shield from when I was in law enforcement. But 
doesn't this bother you?
    Mr. Liu. Well, Senator Leahy, it does, and I won't venture 
any predictions as to how he would perform as a Justice. But I 
would say that what he urged the Committee to do was to believe 
that he would behave as a Justice as he has behaved as a Third 
Circuit judge.
    Let me say one thing about the memo. This memo that he 
wrote in 1984 is about 13, 14 pages long. The first 10 pages of 
the memorandum contain his own personal individual analysis of 
this case. I urge all members of the Committee to read it if 
only to discover that he uses the first person throughout the 
first 10 pages of the memo. Only in the last three pages does 
he discuss whether or not the United States Government should 
file an amicus brief on the side of the State of Tennessee. And 
what is ironic about the last three pages is that he observes 
that all Federal agencies prohibit precisely this kind of use 
of deadly force, and that is one of the reasons why he urged 
against amicus participation in this case, because the U.S. 
Government would be put into a difficult position to show that 
it really meant the rule that he would have urged.
    Senator Leahy. Thank you, and, Professor Gerhardt, I am 
going to send you a letter. I had another question for you, but 
I found very instructive your quick history lesson, as I have 
when you have given longer ones. Thank you, sir.
    Thank you, Mr. Chairman, and I apologize. I am going to 
have to leave at this point for a while, but I know you have 
everything under control.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Kyl?
    Senator Kyl. Mr. Chairman, let me just thank the witnesses 
for being here. I just am moved to make one comment, though. I 
cannot dispute the analysis of individual items here, but I 
think in law we are all familiar with the best evidence rule. 
And the best evidence of how Judge Alito would serve on the 
United States Supreme Court, it seems to me, is not something 
that might have motivated him to be interested in the law 30-
some years ago or something that he even wrote as a young 
lawyer working in the administration but, rather, his 15 years 
on the bench, Number one and, second, how his colleagues have 
viewed his character as well as his judicial performance.
    We have had almost 3 days to query him about all manner of 
issues, and I think to try to, to use the phrase, 
``cherrypick'' a particular comment that was made in a much 
different kind of context and read into that something more 
powerful than all of the other best evidence that we have is a 
real stretch. I will just put it that way.
    I, nonetheless, appreciate the effort that all of you have 
made to be here to enlighten us in these hearings, and I thank 
you for your testimony.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman.
    I was reminded of an extraordinary observation the other 
day, and that was that Robert Bork and Ruth Bader Ginsburg 
agreed 91 percent of the time. It was the 9 percent when they 
differed which was the major difference. That is something that 
I think sometimes we lose track of here when we are looking at 
overall statistics, overall figures. It is the dissents. And it 
is the close dissents, as Professor Liu has pointed out they 
are really important on these enormously sensitive issues 
involving race, involving the disabled, involving women, that 
so much of a judge's philosophy comes out.
    I am interested, Professor, just if you would talk a little 
bit about the jury selection cases. We have considered the two 
that Judge Alito was most involved in, one which is pretty 
boilerplate, I understand, the Brinson v. Vaughn case, and then 
the dramatic Riley v. Taylor case, which is just extraordinary 
and I think enormously distressful to many. I would be 
interested if you would just talk about both and give us your 
assessment.
    Mr. Liu. Sure. Well, Riley v. Taylor has been discussed in 
these hearings. That was a case that concerned a challenge to 
racial discrimination in jury selection in the Dover County 
court. It was shown that over the course of four murder trials 
within the same year, including the defendants in the case, the 
prosecution had struck every black potential juror to serve on 
a capital jury. And the case was originally decided, actually, 
with Judge Alito in the majority, but it was then en banc'd, 
and Judge Sloviter ended up with a majority opinion, basically 
finding that this pattern, in addition to other evidence in the 
record, showed racial discrimination in the jury.
    Judge Alito dissented from that view, and I think the 
sentence, I think, that is most disturbing is his comparison of 
that pattern to the right- or left-handedness of Presidents. 
And he went further to say that, absent a careful multiple 
regression analysis--I can barely say it--we can't infer from 
the statistical pattern any racial discrimination.
    Now, the Brinson v. Vaughn case came along 3 or 4 years 
later. That was, I believe, a 2005 case in which there was a 
pattern of 13, I believe, out of 14 black jurors being struck. 
And Judge Alito wrote a unanimous opinion finding racial 
discrimination in that case.
    What is interesting about that case is that he relies on a 
prior case of the Third Circuit called Holloway v. Horn, which 
relies in turn on Riley v. Taylor.
    Senator Kennedy. Could you, just in the very short time, in 
looking through the opinions in these dissents, in areas where 
Judge Alito took away the effect of a decision of a trial court 
to have a jury trial, the number of cases that he took away 
from the trial court, and the number of cases that he took 
after there had been a jury trial, on appeal where he ruled 
against the individual on that, effectively overriding or 
overruling the trial court, a number in both of those areas 
some rather significant cases. We haven't got a lot of time 
here, but I think you get what I am driving at in terms of the 
respect for the trial court and the jury verdict, whether you 
feel from your own kind of analysis the appropriate kind of 
respect and tradition for that.
    Mr. Liu. Well, I think one area in which there is, to my 
mind at least, a somewhat disconcerting pattern is in the 
Fourth Amendment context. You know, much has been said about, 
for example, the Doe v. Groody case. What I find puzzling about 
that case is it is not that there is nothing to Judge Alito's 
position. I think if you read--
    Senator Kennedy. This is the strip searching of the child.
    Mr. Liu. That is right. His opinion actually is, like all 
of his opinions, incredibly well reasoned, very thoughtful. It 
is not at all disparaging to the girl or her mother, who was 
found to be illegally searched. What is interesting to me is 
that in that case, there is the availability of two competing 
interpretive principles. One is read the four corners of the 
warrant for what it says. The other is supplement the four 
corners of the warrant with underlying material that is 
questionable, at least, in terms of whether or not it is 
incorporated.
    Given the important dignity at interest in Doe v. Groody, 
it just strikes me as puzzling why he would have chosen the 
second interpretive device rather than the first. And the 
second one is the one that took the case out of the jury's 
hands to determine whether or not the search was or was not 
reasonable.
    Senator Kennedy. This is the one where Judge Chertoff took 
exception to Judge Alito.
    Thank you very much. My time is up.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Sessions?
    Senator Sessions. Well, on the Doe case, Mr. Phillips, Doe 
v. Groody, this was a question involving a lawsuit--you, as a 
Solicitor General, you have had to defend law officers for 
personal damages, they are being sued. At best, there was an 
appearance, was it not, that this affidavit was, in fact, made 
a part of the warrant because the magistrate judge intended it 
so and said it?
    Mr. Phillips. Senator Sessions, that, I mean, that is, at 
least in my mind, the complete answer to the Professor's 
argument, which is this is not--this doesn't have anything to 
do with two different analytical approaches. It has to do with 
how do you apply qualified immunity and what deference do you 
owe to the individual officer who is in a very precarious 
position, making decisions on the fly. I think if you read the 
opinion, it is quite, as he said, scholarly, thoughtful, 
analytical, almost apologetic with respect to the consequences 
to the individuals involved, but still recognizing at the end 
of the day that qualified immunity is designed to provide 
precisely the kind of gate-keeping function that the court 
exercised there in order to take those kinds of issues away 
from the jury because that is the only way you can protect the 
greater societal interests that are implicated.
    Senator Sessions. So he did a search warrant on a house 
where dope dealers were there and he followed the instructions 
of the magistrate. They conducted a search of the young girl in 
a private chamber by a woman officer without removing all of 
her clothes, just pulling down her outer garments and a blouse 
up, apparently, and from the indications of the magistrate, 
that was permitted. And so the question was, was he acting 
within the line of scope of his employment and was this officer 
subject to personal suit for money damages, isn't that correct?
    Mr. Phillips. That is absolutely right, Senator.
    Senator Sessions. Well, I am telling you, police officers 
have a hard enough time understanding these laws of search and 
seizure. They are very complicated, and the judges throw out 
searches all the time when they are not proper. But to sue the 
officer who is trying to do the right thing, I think Judge 
Chertoff was in error and I would like to see him back on here. 
I served as U.S. Attorney with him and I will ask him about 
that case.
    [Laughter.]
    Senator Sessions. I think Judge Alito was correct. Maybe he 
was not, but I think he had a good basis for that decision and 
I am concerned about it.
    Mr. Liu, with regard to the Kithcart case in your written 
opinion here, you quote a dissenting opinion from Judge McKee 
that said that--this is where you criticize Judge Alito for 
holding that there was not a basis for arresting a black 
individual who was in a black sports car after some armed 
robberies that occurred, and so that was the message apparently 
that went out, and the officers stopped a car and arrested this 
individual who was black in a black sports car, and the Judge 
said, that is not enough. That is basically racial profiling, 
and he left open, as I understand it, the question of whether 
or not the stop was legitimate. And this judge, correct me if I 
am wrong, and maybe some of you prosecutors would jump in, but 
Judge McKee you quote favorably here. He said, ``Just as the 
record fails to establish that Officer Nelson had probable 
cause to arrest any black male who happened to drive by in a 
sports car, it also fails to establish reasonable suspicion to 
justify stopping any and all such cars that happen to contain a 
black male.''
    Now, isn't that quite a difference of proof standard 
between the authority of an officer to arrest someone and the 
authority of an officer to do an investigative stop? Isn't that 
clearly a different standard, and wasn't Judge Alito correct to 
suggest that there is a different standard for the 
investigative stop than it is to arrest someone?
    Mr. Liu. I think that is true, Senator Sessions. There is 
definitely a difference of standards. One is a reasonable 
suspicion standard. The other is a probable cause standard.
    In this case, I want to be absolutely clear in my 
testimony. I am not criticizing Judge Alito for his result. I 
am saying he is correct, but Judge McKee is saying that he 
didn't go far enough.
    Senator Sessions. All right. But I--
    Mr. Liu. Judge McKee is dissenting to the other side of 
Judge Alito by saying that by the same logic that racial 
profiling prohibits the probable cause finding, it also 
prohibits the reasonable suspicion finding.
    Senator Sessions. In that, I think the law is clearly to 
the contrary. I think officers who have that kind of 
information can at least stop a vehicle. At least, there is 
certainly far more authority to do that than it is and the 
standards are different, pretty clearly.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Sessions.
    Senator Biden?
    Senator Biden. Professor Gerhardt, I am just curious. Was 
that the case you cited about the Hoover administration, was 
that when Senator Boren went down and said to--it is a good 
answer, I think--to the Chairman--Senator Boren went down, and 
when he was given a list of ten people, he looked at the list 
of the President and he said, ``It is a great list, Mr. 
President, but you have it upside down.'' and that is how you 
get the message, because when Presidents actually consult, you 
do have an impact.
    Let me ask you, Professor Gerhardt, and I understand if you 
don't want to answer it, but where do you think on the spectrum 
of the present Court, if Judge Alito is confirmed, he will end 
up?
    Mr. Gerhardt. It is--
    Senator Biden. I know that that is guessing, but what is 
your best judgment?
    Mr. Gerhardt. It is a great question, Senator, and 
obviously, I think it is one of the central questions in this 
hearing. I can tell you this much. I know how the President 
answers that. The President said he wanted to nominate somebody 
in the mold of Justice Scalia and Justice Thomas, and I think 
one of the questions in these hearings has been the extent to 
which, for instance, Judge Alito is going to be perhaps more 
like those Justices, or perhaps like some other Justices, 
Justice O'Connor or Justice Harlan, as he suggested.
    And so if he is going to fit that mold, then obviously the 
balance shifts in a number of important cases in a certain 
direction. But if he is not, then, of course, it is going to be 
harder to predict.
    I might venture at least this much. I think that if he is 
truly going to be a bottom-up judge, as he suggests, then I 
think the shift is not going to be that great. In other words, 
the shift would be more modest. That is the critical thing. The 
critical thing about being a bottom-up judge is that that is 
the essence of modesty. There is very little margin of error 
when you are a judge and you are a bottom-up judge. But if you 
turn out to be a top-down judge, there is a greater potential 
for margin of error, and so if he does turn out to be more like 
Justice Thomas and Justice Scalia, there is a greater 
possibility for error.
    Senator Biden. Well, there would be an awful lot of 
disappointed folks in Washington and the Nation if he turns out 
to be like Justice O'Connor. A lot of people will be very upset 
who are supporting him now.
    Let me ask, if I may, anyone who would like to respond on 
the panel. One of my greatest concerns is, and I must tell you, 
I have a diminishing regard for the efficacy of hearings on 
judicial nominees in terms of getting at the truth. I am not in 
any way implying--
    Mr. Issacharoff. Based on the panel?
    [Laughter.]
    Senator Biden. Yes.
    [Laughter.]
    Senator Biden. No, no. I am not in any way implying--across 
the board, Democratic nominees, Republican nominees. It goes to 
this issue, in my view, of do the people have a right to know 
what they are about to put on the bench. And the part that 
concerned me the most, I must tell you, is the Judge's comments 
on, or failure to comment on, in at least my view, a clear 
understanding of what he means by the unitary Executive. It 
seems very different from what others think unitary Executive 
means, and scholars that I am aware of, and his discussion 
about, or failure to respond to what is now a very much 
animated debate about whether or not the President can wage war 
without the consent of or authority from the Congress and 
whether or not, as the administration argues, the War Powers 
Clause only gives the Congress the power to declare war if it 
wants to when the President doesn't want to go to war, which is 
the most extreme reading I have heard other than one occasion 
in the Bush I administration.
    So does anyone here have any doubt that there is a need for 
the President, absent imminent danger, to get the consent of 
the Congress before he were to invade Iraq or Syria tomorrow, 
or does the President have the authority tomorrow, based on his 
judgment, to invade Iraq and Syria? Does anybody want to 
venture an opinion on that?
    Mr. Issacharoff. I think, Senator Biden, that is the lesson 
of the steel seizure case, including Judge Alito's invocation 
of Justice Jackson's opinion in that case, is that the 
President acts at tremendous constitutional peril when he acts 
contrary to the express wishes of Congress and acts at 
significant constitutional peril when he acts absent 
congressional authority unless there is true military exigency 
of the moment. I think that that is fairly well established. 
That has been the history of the relationship between Congress 
and the Executive. It has been a difficult history, and the 
question of how much authorization Congress has given is a 
repeated issue before the courts and has been since the Civil 
War cases. But I don't think that there is any doubt on this 
question constitutionally.
    Senator Biden. Thank you, Mr. Chairman. My time is up.
    Chairman Specter. Thank you, Senator Biden.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman. I guess I would 
just have to express some reservations at trying to predict how 
Judge Alito is going to rule on the bench. I can think of 
famous examples where President George Herbert Walker Bush 
thought David Souter was going to be of a particular frame of 
mind or approach on the bench. I guess Richard Nixon probably 
had some ideas about Harry Blackmun and President Eisenhower 
had some ideas about Earl Warren. Judicial independence means 
something, and what it hopefully means is exactly what the 
Framers intended in terms of providing the flexibility, the 
freedom, the independence. They have life tenure. We can't cut 
their salary. Who knows? This is, I guess, a debate only 
lawyers can love. It is important, but I just don't know how we 
can answer the question comprehensively.
    Professor Issacharoff, it is good to see you again. Of 
course, I got to know you during your tenure at the University 
of Texas Law School before you came up north to NYU. There have 
been some questions about Judge Alito's statements, about his 
concerns about the Warren Court decisions on reapportionment, 
and you alluded to that in your testimony. The fact is, our 
nation has a checkered history, doesn't it, in terms of 
enfranchising people, making sure that everyone's vote counts 
roughly the same? Back, I guess, at the beginning of our 
nation, people had to have property before they could vote. We 
know that some people couldn't vote at all, African-Americans, 
and we fought a Civil War and amended the Constitution on that. 
We know that even today, the Texas congressional redistricting 
case is pending before the U.S. Supreme Court.
    This remains a subject of a lot of interest and a lot of 
controversy, but I just want to make sure that we are not 
guilty, those of us on this side of the dais, about overstating 
or reading too much, I should say, into what Judge Alito has 
said. He said in college, he was motivated by a deep interest 
in constitutional law, motivated in large part by disagreement 
with Warren Court decisions, particularly in the areas of 
criminal procedure, the Establishment Clause, and 
reapportionment.
    Let us talk about reapportionment, which is, I know, one of 
your passions and expertise. It wasn't until 1962 when the 
Supreme Court decided that those issues were justiciable in the 
first place, wasn't it, in Baker v. Carr?
    Mr. Issacharoff. That is correct, Senator.
    Senator Cornyn. And then the principle of one person/one 
vote was decided in Reynolds v. Sims in 1964, I believe. Is 
that the right time?
    Mr. Issacharoff. Yes.
    Senator Cornyn. The right case?
    Mr. Issacharoff. Yes.
    Senator Cornyn. And, of course, notwithstanding what some 
have tried to make out of what Judge Alito said, he has 
testified here and in other areas that he considers one person/
one vote a bedrock of our democracy. You have said everybody 
believes that, at least every American believes that today, 
although it was fairly controversial not that many decades ago, 
or at least in terms of the court's role.
    What he did say, and I want to get your comment on this, is 
that--and maybe it was because of his father's experience, as 
you alluded to a little bit--that strict numerical precision in 
terms of the size of districts, whether they be for city 
councilmen, whether it be for a State representative, a State 
Senator or Congressman or whatever, there was sort of the 
troublesome issue of how do you deal with things like municipal 
boundaries and communities of interest, lines that ordinarily 
you would think define those communities of interest in a way 
that you just don't want to run roughshod over. Is that a 
legitimate consideration on the way to try to achieve that goal 
of one person/one vote, or is that just bogus?
    Mr. Issacharoff. I think, Senator--and I still have the 
temptation to refer to you as Justice Cornyn--but Senator, I 
think that it is absolutely a legitimate concern. I think that 
one person/one vote turns out to do two things. One, it is 
emblematic. It is our aspiration that everybody be equal in the 
political process.
    And secondarily, and perhaps more importantly, it serves as 
a check on what those in power can do to try to preserve 
themselves in power, and that second feature of it has been 
difficult and the efforts to ratchet up mathematical exactitude 
have usually come in cases that were about something completely 
different. For example, in the New Jersey case in the mid-
1980s, Karcher v. Daggett, the real issue was a partisan 
gerrymander and everybody understood that and the court didn't 
know what to do about it, just as it has had trouble with that 
issue for the decade since, and so it fell back on this 
extraordinary mathematical exactitude, which, in fact, is 
completely illusory because the census isn't that precise.
    So I agree with you fully. I don't think that that was 
where the controversy had moved in the late 1960s. I would stay 
by that statement. But nonetheless, you are absolutely right 
that this is a legitimate course of concern.
    Senator Cornyn. Professor, thank you. My time is up. I 
appreciate your response to my question. Thank you.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator Coburn?
    Senator Coburn. Thank you, Mr. Chairman. I have been 
listening. I was not here for all of it, but I was paying 
attention by the video screen in the back room, and just some 
observations. You know, I live on Capitol Hill with two 
Democrats and the things that normally asked of them is, how 
can you live with that guy? And their answer is you don't know 
his heart. And then I get asked the same thing: how can you 
live with those two guys? And I say you don't know his heart.
    And it strikes me as I look at this panel, the three people 
who testified favorably for Judge Alito know him and the three 
people who didn't testify--who testified somewhat negatively 
about Judge Alito don't know him. They have read some of his 
cases, not all of his cases. And so it just kind of strikes me 
that one of the most valuable pieces of information that this 
Committee has gotten from outside witnesses was the judge panel 
that came before you, the people that have worked with him for 
over a decade, worked with him in a closed room. I believe they 
know his heart. And I believe anyone in this room--you can take 
anything that we have written at some time or said at some time 
and you can make each of us look terrible.
    And I only have really one question and that is for 
Professor Liu. How do you explain the fact that Judge Lewis, 
who is adamant about Title VII of the Civil Rights Act, his 
observations about Judge Alito are completely contrary to 
yours? How do you explain that? Here is a guy that knows him, 
here is a guy that has very liberal leanings in terms of the 
political spectrum, here is a guy that is basing his whole 
legal career on civil rights. And yet he says I know this man 
and there is no a bit of truth in any bias or any direction 
that he goes.
    How do you explain that?
    Mr. Liu. Well, Senator Coburn, I certainly can't dispute 
Judge Lewis's account or views on Judge Alito. I understand the 
previous panel to be testifying to the integrity and 
intellectual honesty of the nominee, none of which I dispute. 
In fact, I conceded in the very first sentence of my testimony 
that I find him also to be an intellectually honest person.
    My only viewpoint, I guess, that I am offering is not 
really a viewpoint at all. What I am trying to simply urge is 
that some attention be paid to his record and that the record 
speaks for itself. And it doesn't speak to the nominee's 
intellectual--any negatives regarding the nominee's 
intellectual honesty. Rather, I think it speaks more to the set 
of values or instincts or the intangible qualities of judging, 
I think, that every judge, every human being brings into the 
world.
    It is not that any judge decides to go about any case 
saying, oh, I come in with this bias or I come in with that 
bias. I grant that Judge Alito, like every judge, tries to be 
impartial, but every judge also has a set of instincts, a 
central tendency, and I think it can be revealed, not 
definitively, but it can be revealed by looking at patterns 
across large numbers of cases.
    Senator Coburn. And you looked at 50 cases of his. Is that 
correct?
    Mr. Liu. Well, I have actually looked at more, but the 
cases that I have--
    Senator Coburn. How many more?
    Mr. Liu. I have probably looked at 60 or 70 cases.
    Senator Coburn. Out of 4,000?
    Mr. Liu. Out of the 360 that he has written.
    Senator Coburn. Written opinions on, but he still has 
adjudicated over 4,000 cases.
    Mr. Liu. Certainly, that is true.
    Senator Coburn. All right. Thank you, Mr. Chairman. I yield 
back.
    Chairman Specter. Thank you, Senator Coburn.
    I had hoped to finish up this evening, but the sense of the 
proceeding at this point is that it is not a wise thing to do. 
This panel took an hour and 15 minutes, and projecting with a 
break, we would be in the ten o'clock range or perhaps even 
later. That would depend upon how many Senators were here to 
question, and I think in the morning we may have more 
questions.
    I think it is a fair observation that we are not at our 
best. We started at nine, so we are in the tenth or eleventh 
hour. And we have tomorrow to proceed and still meet the 
schedule that I had announced early. I know that it is a likely 
inconvenience to some of the people who were on the later 
panels, although nobody on the latter panels, if we were to 
finish tonight, would be out of this town tonight anyway. So it 
is really staying over, and I know that in making your plans to 
come here, you didn't know whether you would testify on 
Thursday or Friday and nobody else knew whether you would 
testify on Thursday or Friday. We tried to follow the Roberts 
model, but on Roberts we finished up his testimony close to 11 
and today we didn't start on the outside witnesses until 2:30.
    That is probably more than you want to know, but I like to 
tell you what is on my mind. I see some of the witnesses on the 
later panels nodding an affirmative. Nobody seems to be too 
distressed about calling it a day at 6:36 after starting at 9 
a.m. So we will be in tomorrow morning at 9.
    Senator Kennedy. Mr. Chairman, could I enter into the 
record a letter from the National Association of Women's 
Lawyers at an appropriate place, and then also a letter from 
Professor Higginbotham, as well, at an appropriate place in the 
record?
    Chairman Specter. Certainly. Without objection, they will 
be placed in the record at what we conclude to be an 
appropriate place after consulting with you.
    Thank you all very much. That concludes our hearing.
    [Whereupon, at 6:36 p.m., the Committee was adjourned, to 
reconvene at 9 a.m., Friday, January 13, 2006.]


 NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

                              ----------                              


                        FRIDAY, JANUARY 13, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:02 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee presiding.
    Present: Senators Specter, Hatch, DeWine, Sessions, Cornyn, 
Coburn, Leahy, Kennedy, Feinstein, and Schumer.
    Chairman Specter. The hearings for the confirmation of 
Judge Alito for the Supreme Court of the United States will now 
reconvene. I have just been discussing with Senator Leahy the 
allocation of time, and we had seven judges who testified 
yesterday who exceeded the 5 minutes. I thought it the better 
part of prudence to not bang the gavel, but allow them to go 
on, but they did take some extra time, in the seven-, eight, 
nine-minute range.
    So I have just said to Senator Leahy that we will give 
seven of the witnesses selected by Democrats five extra 
minutes, or he can allocate the time as he chooses. I don't 
want to split hairs over how much the exact time was, but I 
think it is very important to keep the balance. And we did that 
in the selection of the number, 30. In the past, it had been 
divided about 18 to 12, with the majority party taking more. 
But we have worked out the arrangement of 15 to 15 to keep it 
level.
    Senator Leahy. Mr. Chairman, if I might, you have been fair 
on this. Ultimately, of course, everything has to be determined 
based on what the nominee says, but the public witnesses are 
important. You know, when we are deciding whether to replace 
Justice Sandra Day O'Connor with Samuel Alito, I think they 
help focus us, as the witnesses yesterday did, on aspects of 
his record on the bench with respect to civil rights and 
privacy rights.
    These are long-time pioneers in our Nation's sometimes 
rocky journey toward equal justice and respect for women's 
rights. They are the people on the front line today. We are 
going to hear from representatives of minority communities. We 
have a number of written statements.
    As I have said over and over again, we are the only 18 
people who get to ask questions on behalf of 295 million 
Americans and of generations for a long time to come. So I 
think these hearings are important. Again, I thank you for your 
courtesies and your fairness in keeping them going.
    Chairman Specter. Thank you very much, Senator Leahy.
    We now turn to our first witness on our next panel, 
Professor Nora Demleitner, from the Hofstra School of Law. She 
teaches and has written widely on criminal, comparative and 
immigration law; Managing Editor of the Federal Sentencing 
Reporter, and serves on the executive editorial board of the 
American Journal of Comparative Law; a Bates graduate, summa 
cum laude, and a graduate from the Yale Law School in 1992--we 
have a heavy representation of Yale Law graduates here; that is 
a very healthy thing--and was Symposium Editor of the Yale Law 
Journal. I didn't know there was a Symposium Editor. There 
wasn't one there in my time.
    Thank you for joining us, Professor, and the floor is 
yours.

STATEMENT OF NORA V. DEMLEITNER, VICE DEAN FOR ACADEMIC AFFAIRS 
    AND PROFESSOR OF LAW, HOFSTRA UNIVERSITY SCHOOL OF LAW, 
                      HEMPSTEAD, NEW YORK

    Ms. Demleitner. Thank you, Mr. Chairman, Senator Leahy, 
members of the Committee. Good morning, and thank you for the 
opportunity to testify today. The one thing I should--
    Chairman Specter. I should have added, Professor, that you 
clerked for Judge Alito after graduating from law school. I 
think that ought to be on the record.
    Start the clock back at 5 minutes.
    Ms. Demleitner. I was about to add that. Thank you very 
much.
    Now, since the very early days of my clerkship, I must 
admit that Judge Alito has really become my role model. I do 
think that he is one of the most brilliant legal minds of our 
generation, or of his generation, and he is a man of great 
decency, integrity and character. And I say all of this as what 
I would consider to be a left-leaning Democrat; a woman, 
obviously; a member of the ACLU; and an immigrant.
    And my view is not one that is unique with regard to people 
who have worked with him or with regard to people who have 
worked for Judge Alito. Now, all of his clerks, many of whom 
are politically liberal, have signed on to a letter strongly 
urging the Senate to confirm Judge Alito as Associate Justice. 
A number of non-Republican legal academics who have worked with 
or for Judge Alito have also issued an equally forceful 
statement on his behalf.
    Let me explain to you why I believe that Samuel Alito 
deserves to sit on the highest Court and why his confirmation 
will, in fact, not pose a threat to the rights of women, to the 
rights of minorities, immigrants, or other vulnerable groups.
    Now, Judge Alito does not have a political agenda. He gives 
very careful consideration to the lower court record and to 
prior judicial decisions. Now, let me point you to two cases 
that may explain the judge's philosophy.
    While I clerked for him, he had to decide the case of 
Parastoo Fatin. Ms. Fatin had left Iran in part to be escaping 
the regime of Ayatollah Khomeini. She applied for asylum in the 
United States, but was denied by the immigration court and by 
the Board of Immigration Appeals.
    Now, without revealing any confidences, I can tell you that 
Judge Alito was very much moved by the personal tragedy of the 
situation and the moral dilemma Ms. Fatin would face. If 
returned to Iran, she would either be unable to speak her deep 
feminist convictions or the Iranian regime would penalize her.
    Now, the problem with her case was that there was really an 
absence of favorable case law and, even worse, a very thin 
record that indicates only very limited opposition on her part 
to the Iranian regime.
    Now, the judge did not see himself in a position to help 
Ms. Fatin, who was, however, ultimately permitted to stay in 
the United States. He, however, did take this opportunity to 
write one of the most progressive opinions on gender-based 
asylum. Now, his decision was the first to recognize that 
gender alone could constitute a basis for asylum. This 
revolution in asylum law has not been widely recognized outside 
a very small group of asylum practitioners, and neither has 
Judge Alito gotten a whole lot of credit for garnering the 
votes of both of his fellow panelists for this decision, one of 
whom was a Nixon appointee.
    Now, the Fatin case hasn't gotten a lot of attention, but 
you have spent part of the day yesterday on the Rybar case, 
where Judge Alito dissented. Now, I think you should read the 
case a little differently than the way in which it has been 
portrayed. Now, let me just set the context.
    In 1995, the Supreme Court decided Lopez, Justice O'Connor 
joining the majority striking down the possession of machine 
guns on school grounds as unconstitutional. Now, I think a lot 
of commentators expected this to create a major shift in lower 
court jurisprudence. This did not happen, I think, in part 
because the lower courts read the decision extremely narrowly 
and arguably incorrectly.
    Now, Judge Alito, who has been, I think, generally labeled 
as an anti-criminal defendant judge, was very much willing to 
follow Supreme Court precedent to the point where it would 
necessitate the dismissal of a host of criminal indictments. At 
the same time, he took pains to note that Congress could very 
easily remedy the problem with the statute by indicating in the 
record that there was a connection between the possession of 
machine guns and interstate commerce. Now, let me also point 
you to the fact that a blue ribbon ABA task force has 
increasingly critiqued the increasing Federalization of 
criminal law.
    Now, Judge Alito's record, I think, indicates, and Rybar 
confirms, that he will follow Supreme Court cases very 
carefully, and that he will read congressional legislation very 
carefully. He has also used, I think, his prior background 
experience very effectively in working, for example, on 
sentencing reform with the Constitution Project and at one 
point as an advisory board member of the Federal Sentencing 
Reporter.
    I believe overall that his criminal background experience 
will inform the judge's decision, but it will surely not bias 
him in one way or the other. He will be able to strike a 
practical balance that is informed, but not predetermined by 
his background.
    And for all those reasons, I believe very strongly that he 
deserves to be confirmed as the Court's next Associate Justice.
    [The prepared statement of Ms. Demleitner appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor.
    We now turn to Professor Erwin Chemerinsky, the Alston & 
Bird Professor of Law and Political Science at Duke. Prior to 
coming to Duke in 2004, he had been for 21 years at the 
University of Southern California Law School, where he was the 
Irmas Professor of Public Interest Law. He is a graduate of 
Northwestern University with a bachelor's degree, and a law 
degree from Harvard. Last year, he was named by Legal Affairs 
as one of the top 20 legal thinkers in America.
    Thank you for coming in today, Professor, and the floor is 
yours.

STATEMENT OF ERWIN CHEMERINSKY, ALSTON & BIRD PROFESSOR OF LAW 
  AND POLITICAL SCIENCE, DUKE UNIVERSITY LAW SCHOOL, DURHAM, 
                         NORTH CAROLINA

    Mr. Chemerinsky. Thank you, Mr. Chairman, Senator Leahy, 
distinguished Senators. It is truly an honor and a privilege to 
testify at these historic hearings.
    It is impossible to overstate the importance of this 
nomination to the future of constitutional law. In recent 
years, the Supreme Court was often referred to as the O'Connor 
Court because Sandra Day O'Connor so often has been in the 
majority in 5-4 decisions in crucial areas: protecting 
reproductive freedom, enforcing the separation of church and 
state, limiting Presidential power, and advancing racial 
justice. Replacing her has the possibility of dramatic changes 
in so many areas of constitutional law.
    A crucial question for this Committee is what will be the 
effect of Samuel Alito on the Supreme Court. I want to focus on 
one area, Executive power. I choose this area because no area 
of constitutional law is likely to be more important in years 
ahead than this.
    As you know, in recent years the Bush administration has 
made unprecedented claims of expansive Presidential power, such 
as the claim of authority to detain American citizens as enemy 
combatants without meeting the Constitution's requirements for 
warrant, grand jury, or trial by jury; the claim of authority 
to torture human beings, in violation of international law; the 
claim of authority to eavesdrop on conversations of Americans 
without complying with the Fourth Amendment or the Foreign 
Intelligence Surveillance Act; the claim of authority to hold 
American citizens indefinitely and citizens of other countries 
indefinitely as enemy combatants.
    Now, my goal here isn't to discuss the merits of any of 
these issues; instead, to point to the fact that separation of 
powers is likely to be an enormously important issue in the 
years ahead. And, of course, there is no need to remind this 
body of the crucial role that checks and balances and 
separation of powers play in our constitutional structure.
    Some of the most important Supreme Court cases in history 
have been those where the Court has said no to assertions of 
Presidential power, such as in Youngstown Sheet and Tube v. 
Sawyer in striking down President Truman's seizure of the steel 
mills, and United States v. Nixon in saying that President 
Nixon had to reveal the Watergate tapes.
    A key question for this Committee is whether Samuel Alito 
will continue this tradition of enforcing checks and balances 
or whether he will be a rubber stamp for Presidential power. I 
have carefully read the writings, the speeches and the 
decisions of Samuel Alito in this area and they all point in 
one direction--a very troubling pattern of great deference to 
Executive authority.
    I have closely followed the hearings this week and I know 
you are familiar with the examples. To mention just a few, in 
1984 while in the Solicitor General's office, Samuel Alito 
wrote a memo saying that he believed that the Attorney General 
should have absolute immunity to civil suits for money damages 
of engaging in illegal wiretapping, a position the Supreme 
Court rejected in language that seems so appropriate now in 
saying there was too great a danger of violation of rights from 
executive officials who, in their zeal to protect national 
security, would go too far.
    The next year, he said there should be increased use of 
Presidential signing statements. He said, quote, ``The 
President should have the last word as to the meaning of 
statutes,'' which would mean an increase in Executive power.
    As you know, in a number of writings and speeches, he said 
he believed in the unitary Executive theory. Now, there was a 
good deal of discussion this week as to what that means. But if 
you look at the literature of constitutional law, those who 
believe in a unitary Executive truly want a radical change in 
American Government. They believe that independent regulatory 
agencies like the Securities and Exchange Commission or the 
Federal Communications Commission are unconstitutional. They 
believe the special prosecutor is unconstitutional. They reject 
the ability of Congress to limit the Executive.
    Now, as a judge on the Third Circuit, Judge Alito has not 
had the opportunity to review assertions of Presidential power, 
but there have been many cases where he has considered 
assertions of law enforcement authority. Over and again, he 
comes down on the side of law enforcement.
    I think his dissenting opinions are particularly revealing 
because Judge Becker said he rarely dissents. One case, I 
think, shows Judge Alito's overall philosophy and it is one 
discussed yesterday at the end of the day, Doe v. Groody. This, 
of course, was the case where the police strip-searched a 
mother and her 10-year-old daughter who were suspected of no 
crime.
    As Carter Phillips said yesterday, this was an issue of 
qualified immunity. That means did the officers violate clearly 
established law that a reasonable officer--should the officer 
have known that it violates the Constitution? Senators, any 
police officer, any judge should know that strip-searching a 
10-year-old girl who is suspected of nothing violated the 
Constitution. Senators, this is one of so many cases where 
Judge Alito deferred to law enforcement.
    I am here for a simple reason. I believe that at this point 
in time it is too dangerous to have a person like Samuel Alito, 
with his writings and records on Executive power, on the U.S. 
Supreme Court.
    Thank you.
    [The prepared statement of Mr. Chemerinsky appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor.
    We now turn to Professor Anthony Kronman. After teaching at 
the University of Chicago Law School and Minnesota Law School, 
Professor Kronman came to Yale, where he has been on the 
faculty for 16 years and was the dean of the law school from 
1994 to the year 2004, and is the Sterling Professor of Law at 
Yale.
    He has his undergraduate degree from Williams in 1968, with 
highest honors, a Ph.D. in philosophy, and a law degree from 
Yale in 1975, when he was a classmate of Judge Alito.
    Thank you for being with us today, Professor, and the floor 
is yours.

  STATEMENT OF ANTHONY KRONMAN, STERLING PROFESSOR OF LAW AND 
      FORMER DEAN, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT

    Mr. Kronman. Thank you, Mr. Chairman, Senator Leahy, other 
members of the Committee. I am grateful for the opportunity to 
appear this morning and offer my testimony.
    I have known Sam Alito for 33 years, since we met in the 
fall of 1972 as members of the entering class at the Yale Law 
School. Over the next 3 years, we took nearly a third of our 
law school courses together. We worked on the law journal 
together. We debated in the moot court program. I had a chance 
to observe Sam Alito at close range and to form an estimate of 
his character.
    Sam was hard-working and ferociously bright. No one, I 
think, would challenge that, but that wasn't the first thing 
that impressed me about Sam. What impressed me first and most 
emphatically was his generosity and gentleness. When Sam spoke 
in class or out, others listened. But when others spoke, Sam 
listened, and not just in the superficial sense of waiting 
politely until they had finished, but in the deeper and more 
consequential sense of straining to grasp the good sense of 
their position and to see it in its most attractive light.
    Sam always spoke with modesty, but even when he was 
defending a position that he believed clearly to be right, did 
so with the knowledge that he might be wrong. Learned Hand once 
described the spirit of liberty as the spirit ``that is not too 
sure of itself.'' That is a phrase that has always had a 
special meaning for me and it well describes the quality in Sam 
that I noticed from the start.
    I noticed something else and admired something else as 
well, and that was Sam's faith in the law. Sam believed in the 
integrity of the law and in the essential fairness of its 
processes. Anyone who has studied the law knows that it is not 
a mechanical system. It requires moral judgments at many 
points.
    But there is all the difference in the world between a 
person who approaches the law from the outside and views it as 
an instrument for the advancement of some program of one kind 
or another and a person who approaches it from the inside and 
whose fundamental, leading allegiance is to the law itself.
    Sam falls clearly in that second category. He had, so far 
as I could tell, no political agenda of any kind. I would have 
described him in law school as a lawyer's lawyer, and if you 
had asked me on the day we graduated whether he was a Democrat, 
as I was then and am today, or a Republican, I couldn't have 
told you.
    My knowledge of Sam Alito is based almost entirely on my 
personal acquaintance with the man, but since his nomination to 
the Supreme Court, I have attempted, as have many others, to 
glean at least a sense of his judicial temperament by reading a 
few of his opinions. I haven't read many. I haven't made a 
systematic study of them, but the ones that I have read suggest 
to me rather strongly that the judicial temperament that I 
discern in these opinions is entirely consistent with the human 
temperament of the man I came to know and admire more than 30 
years ago.
    The temperament of the judge, as I see it, is marked by 
modesty, by caution, by deference to others in different roles 
with different responsibilities, by an acute appreciation of 
the limitations of his own office, and by a deep and abiding 
respect for the past.
    There is a name that we give to all of these qualities, 
taken together. We call them judiciousness, and in calling them 
that we recognize that they are the special virtues of a judge. 
Judge Alito has been a judicious judge and my confidence that 
he will be a judicious Justice is based on my personal 
knowledge of the man and my belief that his judicial 
temperament is rooted in his human character, which is the 
deepest and strongest foundation it could have.
    Thank you very much.
    [The prepared statement of Mr. Kronman appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Kronman.
    We turn now to Ms. Beth Nolan, a partner in Crowell & 
Moring's Litigation Group. She has a broad practice which 
focuses on constitutional and public policy issues. Ms. Nolan 
held prestigious and high-ranking positions in the Clinton 
administration and the Department of Justice in the Office of 
Legal Counsel. She had been a clerk to Chief Judge Collins 
Seitz, of the Third Circuit, has an undergraduate degree from 
Scripps College and a law degree, magna cum laude, from 
Georgetown in 1980.
    Thank you for being with us today, Ms. Nolan, and we look 
forward to your testimony.

   STATEMENT OF BETH NOLAN, PARTNER, CROWELL & MORING, LLP, 
                        WASHINGTON, D.C.

    Ms. Nolan. Thank you, Mr. Chairman, Senator Leahy, members 
of the Committee. I am delighted to be here today, and thank 
you for inviting me to provide my views.
    I want to address one issue: how Judge Alito, if he should 
become Justice Alito, would approach questions of Executive 
power. I have served, as you mentioned, Mr. Chairman, in the 
White House as Counsel to the President and in political and 
career positions in the Office of Legal Counsel in the Clinton 
and Reagan administrations.
    And as might be expected of one who has served as Legal 
Counsel to the President, I believe it is essential to defend 
the power of the President to undertake his constitutionally 
assigned responsibilities and to resist illegitimate incursions 
on that power. And certainly, in my position as White House 
Counsel, I sometimes was in conflict with Congress, as each 
branch struggled to assert its views of its authority.
    This does not mean, however, that the Executive should 
assert a view of its power that is virtually unconstrained or 
that fails to take account of the constitutional powers of 
Congress. Presidential power should be interpreted even by 
lawyers for the President with proper respect for the 
coordinate branches, not solely to maximize Presidential power.
    Judge Alito's service, as has been mentioned, on the Third 
Circuit has not offered him much opportunity to address issues 
of Executive power, but we do have some indication of his 
views, and I find particularly instructive and troubling his 
2000 Federalist Society remarks in which he announced his 
support of the unitary Executive theory. What he means by that 
support is a critical question.
    It is a small phrase in one way, ``unitary Executive,'' but 
it has almost limitless import to many of its adherents. At one 
level, it embodies the concept of Presidential control over all 
executive functions; as Professor Chemerinsky mentioned, a 
concept that has been soundly rejected by the Supreme Court.
    But the phrase also often serves to embrace a bundle of 
expansive interpretations of the President's substantive powers 
and correspondingly stringent limits on the legislative and 
judicial branches. This is the apparent meaning of the phrase 
in many of this administration's signing statements claiming 
broad powers for the President.
    In his Federalist Society speech, Judge Alito endorsed the 
theory of the unitary Executive as developed during the period 
he served in the Office of Legal Counsel as a supervising 
deputy. An important question is how he views OLC precedents 
from that time. In one opinion from that time involving covert 
activities, OLC expressed the President's authority in sweeping 
terms, adopting Justice Sutherland's dicta from a very 
different context to assert that the President's authority to 
act in the field of international relations is plenary, 
exclusive and subject to no legal limitations, save those 
derived from the applicable provisions of the Constitution 
itself, while declaring that Congress had only those powers in 
the area of foreign affairs that directly involve the exercise 
of legal authority over U.S. citizens.
    This would seem to mean that the President is essentially 
above the law in the areas of foreign affairs, national 
security and war, and Congress is powerless to act as a 
constraint against Presidential overreaching in these areas. It 
is a fair question whether Judge Alito agrees with these 
sweeping views.
    This is not just of historical interest, of course. That 
version of unitary Executive from the 1980s sounds remarkably 
similar to the assertions of unreviewable and unconstrained 
powers the current President has asserted with regard to this 
authority to ignore the laws passed by Congress, such as those 
forbidding torture and those regulating electronic 
surveillance. These issues may well come before the Supreme 
Court.
    Judge Alito indicated over 20 years ago his strenuous 
disagreement with the usurpation by the judiciary of the 
decisionmaking authority of political branches. Does this 
signal that he will defer to the executive branch's positions 
on its power and its claims that these positions are largely 
unreviewable, or will he, as Justice O'Connor did in Hamdi, see 
a clear role for the courts in protecting our constitutional 
balance and hence our civil liberties? Judge Alito's statements 
about Executive power raise legitimate and serious questions 
that should be explored.
    [The prepared statement of Ms. Nolan appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Ms. Nolan.
    Our next witness is Professor Charles Fried, of the Harvard 
Law School, an expert in the areas of constitutional, legal and 
moral philosophy. From 1985 to 1989, he was Solicitor General 
of the United States, and from 1995 through 1999 he was an 
Associate Justice of the Supreme Judicial Court of 
Massachusetts. He holds a bachelor's degree from Princeton, a 
doctor of law from Columbia, and both a bachelor's and master's 
from Oxford University. Professor Fried, in his capacity as 
Solicitor General, was Judge Alito's superior when Judge Alito 
worked in that office.
    Thank you for joining us, Professor Fried, and we look 
forward to your testimony.

  STATEMENT OF CHARLES FRIED, FORMER SOLICITOR GENERAL OF THE 
  UNITED STATES, AND BENEFICIAL PROFESSOR OF LAW, HARVARD LAW 
                SCHOOL, CAMBRIDGE, MASSACHUSETTS

    Mr. Fried. Thank you, Chairman Specter, and I thank the 
members of the Committee for inviting me.
    I think what I can most usefully do is cast some light on 
Judge Alito's--and if I slip into ``Sam,'' please forgive me, 
because we were a small and very colleaguely and friendly 
office--Judge Alito's work in that office.
    The Reagan administration, no doubt, had a point of view 
about the law, just as did the FDR administration in 1933 or 
the JFK administration in 1961. That is not unusual. That is 
what elections are about. Part of that view encompassed the 
notion that the lower courts had gone too far in limiting the 
ability of law enforcement; that the lower courts had moved too 
far away from an appropriate view of affirmative action, as 
expressed by Justice Powell in Bakke, toward quotas. And I 
suppose emblematic of the notion that courts sometimes just 
make things up was the notion that Roe v. Wade was incorrectly 
decided, a notion which, may I say, was shared by people across 
the political spectrum--Professor Paul Freund; Archibald Cox 
expressed that view as late as 1985; and Dean Ely.
    Now, the first job of the staff of the Solicitor General's 
office was to make sure that when the Solicitor General 
presented the Solicitor General's client's position to the 
Supreme Court, this was done in a professional, correct and 
respectful way.
    That office had career lawyers, some of whom stretched back 
to the time of Lyndon Johnson. I myself appointed as deputies 
people who I knew to be Democrats, liberal Democrats. None of 
that bothered me or bothered them because we were a 
professional office and they understood that their work was 
professional work. That is exactly how Judge Alito viewed his 
work.
    If I look at the two examples that have been much featured 
in these discussions, his memo to me in the Thornburgh case on 
Roe v. Wade--it is said that he argued that Roe v. Wade should 
be overruled. He did not. You need only read that memo because 
he said in that memo that we should not argue that Roe v. Wade 
should be overruled. I didn't follow that advice, but that was 
what the advice was.
    Similarly, it said that he argued for the absolute immunity 
of the Attorney General in connection with wiretaps. He did 
not. What he said was I don't question that immunity, but we 
should not propose that argument; we should not make that 
argument to the Court.
    Now, in 1985 he wanted a job in the administration, and at 
that point he took on a different role and he spoke in a 
different tone of voice. I think that is perfectly 
understandable and appropriate. And when, 15 years later, he 
became a judge--when, 15 years ago, he became a judge, he once 
again assumed a different role. His whole career shows that he 
understands the different between a professional lawyer, an 
advocate, and a judge. And no more eloquent testimony of that 
understanding can be had than the wonderful testimony of his 
colleagues, Democrat and Republican, liberal and conservative, 
who served with him for those 15 years.
    I believe that it is perfectly appropriate for this panel, 
for this Committee, to have probed Judge Alito's disposition. 
Everybody has a disposition. He is in the mainstream. He tends 
toward the right bank of the mainstream, I agree. When this 
Senate approved two wonderful judges to be Justices, Justice 
Breyer and Justice Ginsburg, it was perfectly plain that they 
tended toward the left bank of the mainstream and they were 
confirmed, and properly so. I believe Judge Alito should be as 
well.
    [The prepared statement of Mr. Fried appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Fried.
    Our next witness is Professor Laurence Tribe, Loeb 
University Professor at Harvard University and Professor of 
Constitutional Law at the Harvard Law School. Professor Tribe 
has argued before the U.S. Supreme Court over 33 times, served 
as a law clerk to Justice Potter Stewart, and received his 
bachelor's degree from Harvard College, summa cum laude, in 
1962, and his law degree also from Harvard, magna cum laude, in 
1966.
    Professor Tribe, the floor is yours.

    STATEMENT OF LAURENCE H. TRIBE, CARL M. LOEB UNIVERSITY 
  PROFESSOR AND PROFESSOR OF CONSTITUTIONAL LAW, HARVARD LAW 
                SCHOOL, CAMBRIDGE, MASSACHUSETTS

    Mr. Tribe. Thank you, Mr. Chairman. It is a great honor to 
be here on this very important occasion.
    I am not here to endorse the nomination of Judge Alito, as 
I did with my most recent testimony before this Committee on a 
Supreme Court nomination with Justice Kennedy. I am not here to 
oppose his nomination, as I did several months before that time 
with Robert Bork. And I am not here to lecture the Committee on 
its responsibilities or its role. I don't think that is my 
role.
    I think the only useful function that I can perform is to 
ensure to the limited extent I can that Senators not cast their 
votes with, to borrow an image from a Kubrick movie, their eyes 
wide shut.
    It is quite clear that there are two central concerns in 
the country and in the Senate with respect to this nomination, 
and they do not relate, honestly, to what a truly admirable, 
collegial, modest, thoughtful and brilliant fellow Sam Alito 
is. And I don't mean to call him ``Sam.'' I don't really know 
him the way that my colleague, Charles, does.
    They relate to whether Justice Alito might, by casting a 
decisive fifth vote on many cases, narrow the scope of personal 
liberty, especially for women, and broaden the scope of 
Presidential power at a time when we see dramatically the 
dangers of an unfettered Executive by weakening the ability of 
both Congress and the courts to restrict Presidential 
assertions of authority.
    A word first about liberty. It is certainly true that in 
the Solicitor General's office the memorandum that Judge Alito 
wrote for the Solicitor General did not urge that the Court be 
confronted frontally, overrule Roe. But he made it clear even 
then that the strategy he thought wise to pursue was a step-by-
step process toward the ultimate goal of overruling Roe.
    That is the only prospect on the table. I assure you that 
if the Supreme Court actually overrules Roe, I will have 
thousands of students to tell that I predicted the wrong thing. 
That is not the danger. They won't say Roe v. Wade is hereby 
overruled. What they will do--and I am saying ``will'' because 
I am assuming that confirmation will occur. Maybe it won't, but 
with the vote of Judge Alito as Justice Alito, the Court will 
cut back on Roe v. Wade step by step, not just to the point 
where, as the moderate American center has it, abortion is 
cautiously restricted, but to the point where the fundamental 
underlying right to liberty becomes a hollow shell.
    It is the liberty interest which occurs not only in Roe, 
but in the right to die and in many cases that we can't predict 
over the next century, and certainly over the 30 years that 
Justice Alito would serve--it is that underlying liberty which 
is at stake. And it is crucial to know that Judge Alito 
dramatically misstated the current state of the law, and I say 
that with deference and respect, but it was clear.
    When pushed on whether he still believed, as he said, not 
in his role as a Government lawyer but in his personal capacity 
that he believed the Constitution does not protect a right to 
abortion--when he was asked, do you still believe that, he 
said, well, I would approach it by starting with Casey. Casey, 
in 1992, he said, began and ended with precedent, stare 
decisis. Casey simply followed Roe. And he thereby avoided the 
issue.
    That is not true. Casey split the baby in half; that is, 
Casey said there are two fundamental questions here. One, does 
the woman have a fundamental liberty at stake when she is 
pregnant and wants to make a decision? And No. 2, assuming she 
does, at what point does the state's interest in the fetus 
trump the woman's liberty?
    On the liberty issue, the Court did not rely on stare 
decisis and Roe. The moderate Justices who wrote the joint 
opinion, Justices O'Connor and Kennedy and Souter, said that on 
the underlying issue of liberty, we agree clearly the woman's 
liberty is important, special, not just like the right to fix 
prices, because if we didn't think that and if we had a case 
where a teenage girl was being forced to have an abortion, her 
liberty wouldn't be special either. And therefore we must 
conclude, without relying on Roe, this is a liberty deserving 
of special protection.
    Never in the descriptions that you heard from Judge Alito 
with respect to the issues in Roe did he confront the question, 
does he too believe that that liberty is special or does he, as 
did Robert Bork and as do many, believe that there is no 
special liberty. Simply because the woman happens to have a 
fetus inside her, her interest is no greater than my interest 
in learning how to play tennis.
    So it seems to me clear that the indications we have of 
Judge Alito's belief are that he does not have a conviction 
that that liberty is special, and he is unwilling not only to 
commit to treating this as a so-called super precedent; he is 
not even willing to indicate to this Committee that he believes 
that the Court has a special role in protecting intimate 
personal liberties.
    Now, with respect to consolidating the powers of the 
President, I want to associate myself completely with the 
remarks of Beth Nolan. It is very clear that with respect to 
the unitary Executive theory that is being espoused that what 
you saw in the instance of Judge Alito's testimony was not a 
forthright description of what he said he believed--
    Chairman Specter. Professor Tribe, you are a minute-and-a-
half over. If you could summarize, I would appreciate it.
    Mr. Tribe. I am sorry. I will certainly summarize.
    When he spoke in November of 2000, after Morrison was 
decided, he outlined a strategy for consolidating the power of 
the President, notwithstanding Morrison. And I think it is easy 
to explain, but I won't try to do it over time. The distinction 
he tried to draw between the President's control of functions 
within his power and the scope of Executive power is a 
completely phony distinction.
    Chairman Specter. Professor Tribe, did you say you were not 
testifying against Judge Alito?
    Mr. Tribe. I am not recommending any action. I am 
recommending that everybody, because I think it is foolish--
nobody really cares what I think.
    Chairman Specter. Aside from your recommendation, are you 
saying you are not testifying against Judge Alito?
    Mr. Tribe. I am not testifying for or against Judge Alito. 
I am explaining why I am very troubled by his views. Obviously, 
it follows from that that I would be hard-pressed to recommend 
his confirmation.
    [The prepared statement of Mr. Tribe appears as a 
submission for the record.]
    Chairman Specter. The clock needs to start at 5 minutes 
even for the Chairman and for everybody. I had already started 
the 5-minute round, but we will proceed. And as we all know, 
after the panel testifies, each Senator has 5 minutes of 
questioning.
    Professor Fried, you testified in the confirmation hearing 
of Chief Justice Roberts that you thought Roe was wrong 
decided, but you also thought that Roe should not be overruled. 
And that is based on the reliance and upon the precedents and 
upon stare decisis.
    You have worked closely with Judge Alito. I know you have 
followed his career. What is your sense as to how Judge Alito 
will approach the Roe issue if it should come before the Court 
for reversal or being sustained in the context of your 
understanding of his approach to stare decisis?
    Mr. Fried. Well, I think it is a version, but only a 
version of what my colleague and friend, Larry Tribe, has said. 
I think he will not--and Larry agrees with that--move toward a 
frontal overruling, just as he has been urged and others have 
urged should happen. That is my belief, and I could be quite 
wrong. I could be quite wrong about that, but that is my 
belief.
    Now, the idea that he would chip away at it--I am not sure 
I know what that means. When the Casey decision came down and 
Justice O'Connor--and it is clearly Justice O'Connor--moved 
from the very strict, almost abortion-on-demand standards of 
Roe toward the undue burden standard, a cry went up from the 
community which I think Professor Tribe is associated with that 
this was a disaster. But, in fact, it was a reasonable thing to 
do.
    And we do not know what the future holds, but I don't 
expect him to do things which would be other than in the 
reasonable tradition of Casey, which I agree with Professor 
Tribe is a much better decision and a much better-founded 
decision than Roe.
    Chairman Specter. Ms. Nolan, the critical issue which the 
Congress is going to be looking at and this Committee is going 
to hold a hearing on is the President's power on eavesdropping 
without a warrant, in contravention of the specific provisions 
of the Foreign Intelligence Surveillance Act.
    During the Clinton administration, Deputy Attorney General 
Jaime Gorelick testified--I see you nodding; you know she 
testified that the President had inherent authority to conduct 
those warrantless searches.
    What have you seen--aside from the generalizations of 
unitary power, anything specific in the record of Judge Alito 
that he has a view on that critical issue?
    Ms. Nolan. First of all, I just want to be clear that 
Deputy Attorney General Gorelick's testimony was about inherent 
authority in the absence of a statutory provision. It was 
physical searches not covered by FISA, so just to clarify that.
    Chairman Specter. Well, she testified during the Clinton 
administration, which was long after FISA was adopted.
    Ms. Nolan. Yes, but it didn't cover physical searches and 
that was the question at that time. It was part of the Ames 
case. And, in fact, the administration brought to Congress a 
request that FISA be amended to cover physical searches.
    Chairman Specter. OK, on to Judge Alito.
    Ms. Nolan. I am not aware of anything in Judge Alito's 
record with regard to that.
    Chairman Specter. Professor Chemerinsky, do you think--you 
comment on the issue as to Judge Alito as to whether he would 
be a rubber stamp or not for Executive power. Do you think he 
would be a rubber stamp.
    Mr. Chemerinsky. Everything that I could find in his record 
points to tremendous deference to Executive authority.
    Chairman Specter. Well, tremendous deference is a little 
different from being a rubber stamp.
    Mr. Chemerinsky. I think the key question that this 
Committee has to face is will this be a Justice who on these 
issues that we are talking about come before the Court will be 
willing to enforce checks and balances. In light of his entire 
career before going on the bench being in the executive branch, 
in light of his writings when he was in the Solicitor General's 
office, the speeches that he has given and the opinions he has 
written on the Third Circuit, I don't find anything to indicate 
that he will be enforcing checks and balances.
    Chairman Specter. So you think he would be a rubber stamp?
    Mr. Chemerinsky. I think the record here does speak for 
itself. I think if we can't find anything that points to that 
he will enforce checks and balances--
    Chairman Specter. I have to interrupt you. I want to ask a 
question of Professor Kronman and Professor Demleitner. There 
has been a lot of talk about Judge Alito and whether he is 
deferential to the powerful and to the government.
    You, Professor Demleitner, were his clerk. You know him 
pretty well. You know him, Professor Kronman, for several 
decades. I would like you to address your sense of him on that 
issue.
    We will start with you, Professor Demleitner.
    Ms. Demleitner. I have never seen anything while I clerked 
for him or in subsequent years that led me to believe that he 
had an agenda or any kind of plan to favor particular groups 
over others. He really, in my experience, looks at each case 
individually, and I am sure he was surprised when he saw the 
statistics adding up how often he voted for a corporation or 
for an individual.
    Quite to the contrary, I think his opening statement was a 
very powerful one in which he addressed his own background, and 
I think he indicates that he would not be inclined to favor big 
government or big corporate interests over individual 
interests.
    Chairman Specter. Professor Kronman?
    Mr. Kronman. I would agree with that. I have no reason to 
think that Judge Alito begins with a strong dispositional 
inclination to always favor governmental power over individual 
rights. He does, I think, have an inclination to be respectful 
of those in positions of institutional authority who have 
wrestled with questions that come before his court and to take 
seriously the thought they have given to those questions and to 
weigh them appropriately.
    Chairman Specter. Thank you very much.
    Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman.
    I am curious, and I listened very carefully, Professor 
Chemerinsky--did I pronounce that correctly, Chemerinsky?
    Mr. Chemerinsky. Yes, you did. Thank you.
    Senator Leahy. Thank you. In 2004, in the Hamdi case--and I 
am sure you are very familiar with that--the Supreme Court 
considered whether due process required that a citizen of this 
country who is being held as an enemy combatant should be 
afforded a meaningful opportunity to challenge the factual 
basis for the detention.
    Justice O'Connor's decision for the Court upheld the 
fundamental principle of judicial review over Executive 
authority. She said, in effect, that even if you are at war, 
whether a declared war or a war on terror or whatever, it is 
not a blank check for the President when it comes to the rights 
of the Nation's citizens.
    Now, the unitary Executive theory which Judge Alito 
espoused in remarks just as recently as 5 years ago was 
championed in dissent by Justice Thomas in Hamdi, saying that 
the war powers of the President couldn't be balanced away by 
the Court.
    Well, I am going to ask you this and then I will ask Ms. 
Nolan the same question. What are the implications for the 
rights of Americans to be free from governmental intrusion were 
Justice Thomas's views to prevail rather than Justice 
O'Connor's?
    Mr. Chemerinsky. It is an enormously important question. 
Hamdi was a tremendous victory for all American citizens 
because, as you say, the Supreme Court said that before an 
American citizen can be held as an enemy combatant, there must 
be due process--notice of the charges, an opportunity to be 
heard, representation by counsel.
    There was only one dissent directly to that and that was 
Justice Thomas, who advances the unitary Executive theory as 
the reason why the President should be able to hold individuals 
without due process. You asked, well, what might be the 
implications of this?
    Well, the question would be can the President engage in 
electronic eavesdropping, in violation of the Foreign 
Intelligence Surveillance Act? It seems clear what the unitary 
Executive theory would say about that. Can the President hold 
an American citizen as an enemy combatant without a warrant for 
arrest, a grand jury indictment, or a jury trial? I can think 
of nothing more antithetical to the Constitution, but the 
unitary Executive theory would seem to say yes.
    Senator Leahy. Ms. Nolan, what would you say about that? 
The professor added this question of wiretapping outside the 
Foreign Intelligence Surveillance Act. If you could go to my 
original question, but also tell me what would you have given 
as advice to the President of the United States if he said, ``I 
am going to bypass FISA, and I am just going to go wiretap on 
my own innate authority.''
    Ms. Nolan. Well, here, I am going to show my credentials as 
the lawyer to the President and say that I am not exactly sure 
because we don't know the full contours of the program. So I 
want to be clear that it is possible that the President could 
bring something to me that would make me say under these 
circumstances of emergency powers--
    Senator Leahy. Let's go by what you have seen in the press.
    Ms. Nolan. By what I have seen, I would say you have to 
follow FISA or you have to go to Congress and get it amended.
    Senator Leahy. And do you agree with Professor Chemerinsky 
that as to the theory of the unitary Executive, we would be in 
a much different world if that theory had prevailed in the 
Supreme Court, rather than Justice O'Connor's view in Hamdi?
    Ms. Nolan. Absolutely, and I think the electronic 
surveillance is a perfect example of this theory going to the 
next step, which it is based on this unitary Executive theory 
and the commander-in-chief power. But the theater of war now is 
the entire world, including the United States, and the end of 
the war may be never when we are talking about the war on 
terror. And so we are not talking about limited emergency 
Presidential powers in a very short period of time.
    Senator Leahy. We are talking about powers being used for 
the rest of my lifetime and your lifetime.
    Ms. Nolan. That is correct.
    Senator Leahy. And if I might, because the time is 
limited--and I would like to pursue that because I think you 
are absolutely right. If we say it is a war on terror, nations 
have faced terrorist threats throughout their history. Look at 
Europe, look at other countries. Do we set aside our 
Constitution on the claim that we may face these threats?
    Professor Tribe, you and I have talked about a number of 
issues over the years, and I appreciate all the help you have 
given both me and this Committee. Last month, we passed a 
McCain amendment that prohibited inhumane, degrading treatment 
of detainees by U.S. personnel under all circumstances, which 
was originally strongly, strongly opposed by the 
administration; the White House's polling and published polling 
showed that their opposition was not a sustainable position.
    They worked out a deal with Senator McCain, and the 
President, with great fanfare, signed the McCain amendment into 
law, but, of course, then very quietly issued a statement, in 
effect, construing what the law was and exempting or carving 
out an exemption for the Executive.
    Now, let's say there was a violation brought before the 
courts on the McCain amendment prohibiting cruel, inhumane and 
degrading conduct, and it came before a court. What weight 
would a court give the President's signing statement? Would the 
court give equal weight to the statute overwhelming passed by 
Congress, signed into law by the President? Would they give 
equal weight to that as they would to this signing statement by 
the President which carved out exceptions to the law?
    Mr. Tribe. Senator, under current law, a clear majority of 
the Supreme Court and most circuit courts would say that 
although in cases of ambiguity the understanding of the 
President of the law's meaning at the time it is signed might 
be a factor to consider, when, as in this case, the law was 
clear, or as clear as one can be in talking about gradations of 
methods of interrogation, the McCain law, the statute and the 
Levin-Graham compromise, or whichever way it was sequenced, is 
the law.
    And the statement made by the President of the United 
States on December 30 of 2005 that this will be enforced by the 
President only in accord with his power over the unitary 
Executive, a phrase that is constantly used by this 
administration, and when that was understood to mean that he 
will decide in his unfettered discretion when the method of 
interrogation crosses the McCain line and is cruel and 
inhumane, that will be given no weight.
    But there is no way, consistent with his expressed beliefs, 
that a Justice Alito could go along with that view; that is, 
under his view, which would be, I think, quite similar to the 
view of Justice Thomas dissenting in Hamdi, it is up to the 
President to decide how he will, through his subordinates in 
the unitary Executive branch, carry out his authority as 
commander in chief, especially given the authorization for the 
use of military force.
    And it is interesting that when asked by Senator Durbin 
about the role of the unitary Executive theory in Hamdi, which 
goes directly to the question whether American citizens could 
be detained indefinitely or made subject to eavesdropping under 
the broad authority of the authorization for the use of 
military force notwithstanding FISA, he said, well, I am not 
sure that Justice Thomas referred to the unitary Executive 
theory. Well, in fact, he did. Just read his opinion.
    He relies heavily on and names--he says because the unitary 
Executive must have discretion to decide how to carry out the 
war, it is his views that will prevail. But it would not be on 
the theory that the President's understanding of the law trumps 
Congress's intent. It would rather be on the theory that the 
President has unfettered power to control the entire executive 
branch within the reach of his authority.
    Now, let me, if I might, just say why this distinction 
between scope, the reach of his authority, and control is not a 
coherent one. Yes, it is true that the unitary Executive theory 
would not suddenly add to the executive branch a distinct lump 
of law-making powers. For example, the power that Truman 
exercised in the steel crisis; the President couldn't suddenly, 
under the unitary Executive theory, gain the power of eminent 
domain.
    But the President does have the power to disregard Acts of 
Congress that would impinge on his carrying out of an executive 
function. And under the views that were expressed by Judge 
Alito in his testimony and the views that were really the 
underpinning of the unitary Executive theory when it was cooked 
up on a creative storm in the Office of Legal Counsel in the 
period when Judge Alito was there, the underpinnings included 
the notion that the President has inherent power over foreign 
affairs, war-making and the executive.
    Chairman Specter. Professor Tribe, we are way over time on 
this section. If you could wrap up that answer--
    Mr. Tribe. It is wrapped up.
    Chairman Specter.--I want to be deferential to Senator 
Leahy, who has a followup. This is not a precedent now.
    Senator Leahy. No, no, no, that is OK. Actually, my 
followup was going to go into this subject, so I was interested 
in the answer.
    Chairman Specter. OK, if you are sure.
    Senator Hatch.
    Senator Leahy. Thank you. Thank you very much, Professor 
Tribe.
    Senator Hatch. Well, I have to apologize to this brilliant 
panel because I was not here. I was down at the Blair House 
with the Chancellor of Germany that I needed to do, and I have 
respect for all of you. I just have one question. Maybe, 
Professor Fried, you could assist me with this.
    Could you please--you know, we have had some difference of 
opinion as to what settled law is in this body. A common 
question to ask is do you believe Roe v. Wade is settled law or 
any number of other opinions as well.
    Professor Fried, could you explain the difference between 
settled law and settled precedent? Because, as I heard both of 
the--as I heard both now-Chief Justice Roberts and Sam Alito, 
Judge Alito, they basically both said that they believe that 
Roe v. Wade and a number of other cases are settled precedents.
    Now, I think what I would like you to do is could you 
please explain the terms ``settled law'' and ``settled 
precedent'' so that we all understand it once and for all, and 
whether the two witnesses, now-Chief Justice Roberts when he 
was Judge Roberts and Judge Alito, whether they were consistent 
in their answers on that particular issue.
    Mr. Fried. I am afraid I am unable to say what the 
difference between settled law and settled precedent is. I 
think that came out during the very excellent questioning by 
Senator Feinstein, and Judge Alito's answers, I think, were 
admirable.
    Chief Justice Roberts answered Senator Feinstein and came 
up with the statement of settled law, settled precedent. I 
don't think that there was an attempt to make some distinction 
between those two concepts. But what he was suggesting is that 
this is something that is so well understood that it would be 
really extremely disruptive and unfortunately disruptive to 
overrule it.
    Now, Judge Alito--I am sorry. This was taken by members of 
this body and in the press as an absolute commitment how Judge 
Roberts would vote. I don't believe he meant it as that. And 
Judge Alito, to his credit, when he was asked that question, 
was so scrupulous about giving a commitment, which he 
absolutely must not do, and which I don't think any member of 
this panel would want him to do, to make a commitment, that he 
avoided a formulation which had come to be made the equivalent 
of commitment, of an oath that I shall never do that. No judge, 
no person who aspires to be on a court, should ever make a 
commitment about how he or she will vote. I think you all agree 
with that. And I think Judge Alito, though it is causing 
trouble for him and will cause trouble for him, was unwilling 
to enter that territory because of his very admirable 
scrupulousness.
    Senator Hatch. Well, thank you, Mr. Chairman. I just wanted 
to clarify that, and I think that does clarify that, because 
that is the way I interpreted it as well. But thank you for 
answering that.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, Mr. Chairman.
    To come back to this unitary Executive, Judge Alito was 
asked frequently about his view about this and also about its 
impact upon the administrative agencies. And he responded 
during the course of the hearings that the Humphrey's Executor 
and Morrison cases upheld the powers of Congress to create the 
independent agencies and tried to leave it at that.
    Of course, what is enormously interesting was his statement 
that his dissent in the Morrison case, where he took exception 
to Morrison, he says, ``But perhaps the Morrison decision can 
be read in a way that heeds if not the constitutional text that 
I mentioned, at least the objectives for setting up a unitary 
Executive that could lead to a fairly strong degree of 
Presidential control over the work of the administrative 
agencies in the areas of policymaking.''
    So this is his view. We would appreciate an understanding 
what the law is. I think Professor Tribe indicated what he 
thought would be the decision. But this is his view.
    And then in his work at the Justice Department at OLC on 
signing statements--and I will include the appropriate 
paragraph, but let me just in the issue of time mention his 
statement here. ``Since the President's approval is just as 
important as that of the House or Senate, it seems to follow 
that the President's understanding of the bill should be just 
as important as that of Congress.'' That is rather, at least 
for me, and I think for most legislators, a bizarre concept. I 
thought we were the legislative branch.
    But then he continues: ``From the perspective of the 
executive branch, the issue of the interpretive signing 
statements would have two chief advantages: first, it would 
increase the power of the Executive to shape the law''--
``increase the power of the Executive to shape the law; and, 
second, by forcing some rethinking by courts, scholars, and 
litigants, it may help to curb the prevalent abuses of 
legislative history.''
    The question is, Are we talking about someone that has a 
different understanding of the balance between the Executive 
and the Congress and the judiciary in terms of the makings of 
law? It seems to me that this is an attempt to tip the--to 
change that balance and tip it more towards the Executive at a 
time when we have certainly the challenges that are out here 
before the country to make it fairer, more equitable, to deal 
with the problems and challenges that we are facing in the 
country in terms of opportunity. Professor Tribe?
    Mr. Tribe. Well, I think I would underscore one aspect of 
what you were quoting, Senator Kennedy. Those statements that 
were made by Judge Alito about how he understands and how he 
believes one could shape the relationship among the branches of 
Government after Morrison, which was the decision upholding the 
validity of the independent counsel law and the decision 
rejecting Congress's--sort of rejecting the attack on 
Congress's role with respect to the Executive.
    When Judge Alito made those statements, he was not working 
for the Government. He was not speaking in some other role. He 
was a judge. He had been a judge of the United States Court of 
Appeals for the Third Circuit for about 10 years. The statement 
was made on November 17, 2000, to a gathering of the Federalist 
Society, obviously a group exercising considerable influence 
with what was then the likely new administration. That was 10 
days after the votes were counted in the election of 2000. It 
was 10 days after now-President Bush had declared victory even 
though the recounts were going on.
    So he was speaking to the decisionmakers who would perhaps 
decide--he was already discussed as a possible nominee to the 
Supreme Court--who would decide whether he would remain on the 
Third Circuit. And he was saying to that group, ``I still 
believe in what we were arguing back in 1986 at OLC.'' He talks 
about the ``Gospel according to OLC.'' He says, ``I still 
believe in that gospel.'' He is speaking as a judge, and he 
says, ``Under that gospel, we have a way of giving the 
President more power.''
    I cannot imagine more direct evidence--
    Senator Kennedy. I am sorry to interrupt you, but I have 
very brief time. Just how would that change the relationship 
between the Executive and Congress?
    Mr. Tribe. Well, it would make it much harder for Congress 
to say you cannot interfere with the SEC in the following way, 
you cannot override the directives of the Fed. Even the 
independence of the Federal Reserve Board, which could be 
distinguished on grounds that historically monetary control was 
outside the Executive power, but that is shaky ground when you 
believe in the full unitary Executive. In theory, it could take 
over the conduct of all of the agencies because there are only 
three branches of Government, and they belong in the Executive.
    Senator Kennedy. My time is up, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kennedy.
    The Committee is going to break very briefly for the 
memorial service for David Rosenbaum, which is being held at 
10:30 in this building. A number of members of the Committee 
have expressed an interest in going there. I do not intend to 
stay for the full ceremony. I will be back. Others may stay 
longer. But I just wanted to point that out, and we will be 
breaking at about 10:20 or so.
    Now, Senator Sessions?
    Senator Leahy. Mr. Chairman, could I just ask unanimous 
consent to place in the records several news articles regarding 
this whole issue?
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Sessions?
    Senator Sessions. Professor Demleitner, I found your 
comments insightful, and from your perspective, as you said, a 
left-leaning Democrat, an ACLU member, and who worked at the 
Criminal Justice Clinic while you were at Yale. And you told 
the story about being with Judge Alito as his clerk, and you 
saw something that concerned you in an opinion, and you asked 
him about it and he took the transcript home that night to read 
it. Would you share briefly how that came about and what that 
meant to you as a young law clerk?
    Ms. Demleitner. Of course. I would be happy to. Thank you 
for asking, Senator.
    I think it was in the fall of my clerkship, and as you said 
correctly, I had worked in the prison clinic at Yale, and 
obviously it was representing prison inmates, and so I had a 
very pro-defense outlook, which I think I still have today. And 
so clerking for a former Federal prosecutor was somewhat--I 
guess I was somewhat apprehensive about that. But from the very 
first day on, I think Judge Alito made it very clear that he 
wanted to hear all kinds of arguments, and I was, I think, 
generally inclined to argue to him that he should vote to 
reverse convictions.
    There was one particular case that I remember very 
distinctly. It was a bribery case, and I had read the record, I 
had read the lower court transcript, and I thought there was 
some reason why he should vote to reverse. And, you know, I 
think a lot of other judges would have said, No, I don't see 
it, and just left it at that.
    He took the entire lower court record home, took my memo 
home, and the next morning, when he came back, it was very 
clear he had spent quite a bit of time with it. He had read it. 
He had digested it. He sat me down and explained to me why I 
was wrong. He was right.
    But I was so impressed with it because he didn't just 
laugh, you know, this is one of Nora's other theories to set 
someone free, but he really took it seriously. And he did this 
with every single case.
    So I actually wanted to respectfully disagree with 
Professor Tribe on this issue because I think collegiality, 
brilliance, listening to others, which Professor Kronman had 
talked about, are very important on a court that consists of 
only nine members, because I think it shows he will be open 
minded, he will listen. He always listens, and I think that is 
very important, and he can be moved. I mean I remember writing 
memos to him and discussing cases with him where I saw this is 
his position, and he came out of oral argument and came out of 
the bench meeting with the judges afterwards, and he had 
changed his mind. So he has not said he is nondoctrinaire, and 
I think that is important to know about him.
    Senator Sessions. That is consistent with what his 
colleagues on the bench have said, that is for sure. You 
mentioned the Rybar case. I agree with you on that, and in 
fact, in that case he ruled for the little guy against the 
prosecutors and the Government, who wanted to put the man in 
jail. He threw out the conviction. People have forgotten that 
in the course of the discussions.
    Ms. Nolan, I remember you served as legal counsel in the 
opportunities that we had to chat, and you point out that you 
believe it is essential to defend the power of the President to 
undertake his constitutional assigned responsibilities, whether 
considering the exercise of his powers under the Appointments 
Clause or under the Commander-in-Chief Clause. You had to do 
that in that position in Department of Justice. You note that: 
In my view the executive branch is right to resist 
inappropriate incursions on its power from the legislative and 
judicial branches, and we should thus expect that executive 
branch lawyers will strongly defend Executive powers.
    Just briefly, before we get into some of my questions, 
Congress is never reluctant to expand its power, and oftentimes 
to diminish Executive power, and it is a constant tension 
there, is it not, from your perspective? You served on the 
President Clinton--
    Ms. Nolan. There is definitely a tension. I do think 
Congress is sometimes reluctant, but there is definitely a 
tension.
    Senator Sessions. Professor Fried, most of us, I think, are 
not familiar with this idea of unitary Executive. I have heard 
it complained for many years--and I assume this is the genesis 
of it--that these ABC agencies, these alphabetical entities 
that are quasi a part of the executive branch, but nobody 
controls them, is somehow contrary to our three branches of 
Government concept, and you have served in the Department of 
Justice, you have been Solicitor General, you are now a 
professor of law. Could you share with us the tensions that 
might exist and how we might think about these issues?
    Mr. Fried. I would be glad to, but only if the Chairman 
will give me the time.
    Chairman Specter. Professor Fried, to the extent you can, 
would you make it brief?
    Mr. Fried. I have a talent for making things brief.
    [Laughter.]
    Mr. Fried. Yes. First of all, Morrison v. Olson, the 
independent counsel case, was the crucial case on the unitary 
Executive. It was my bitter experience to have argued that case 
and lost it 7-1. I always tell my class that if that had come 
up later and had been styled ``Clinton against Starr'', I would 
have won it, because by then it became perfectly obvious what 
an abomination that Independent Counsel Law was, how it had 
been misused, and how it tore the fabric of our constitutional 
system.
    I think what has been said about the unitary Executive in 
these hearings is very misleading. The unitary Executive says 
nothing at all, nothing about whether the President must obey 
the law. It talks about the President's power to control the 
executive branch. That is the subject. And in this, the unitary 
Executive theory is not an invention of the Reagan Justice 
Department or the Office of Legal Counsel, it was propounded in 
the first administration of Franklin Delano Roosevelt, who 
objected to the powers of the Controller General, who tried to 
fire a Federal trade commissioner, and who referred to himself 
as the general manager of the executive branch. That is the 
origin of the notion in FDR's administration.
    Chairman Specter. Thank you very much, Professor Fried, and 
thank you, Senator Sessions.
    I had asked you to be brief because Senator Feinstein wants 
to question before our break, and that is imminent.
    Senator Feinstein?
    Senator Feinstein. Thank you very much. I would like to 
quickly go down the line and ask each witness which present or 
past justice do you think Judge Alito will most be like, 
please? If you do not, Dr. Chemerinsky, we will come back. Do 
you have a view?
    Mr. Chemerinsky. Sure. Your Honor, having read over 200 
opinions written by Judge Alito, I think ideologically he is 
closest on the current Court to Justice Scalia, which, of 
course, is exactly what President Bush said he wanted in 
appointing a Justice to the Court.
    Mr. Kronman. I would name Justice John Harlan, who Judge 
Alito identified as one of his four heroes on the Supreme 
Court.
    Ms. Nolan. I think it is likely to be Justice Scalia, 
although I think he may be more aggressive on Executive power 
than Justice Scalia has been in all areas.
    Mr. Fried. It is certainly not Justice Scalia, because he 
has not sworn allegiance to any of the theology which Justice 
Scalia has propounded, never on any occasion. I think it is 
Robert Jackson.
    Mr. Tribe. I only wish it were Jackson or Harlan. I think 
he would be--I do not know that I accept the question as being 
sort of directly--
    Senator Feinstein. You do not have to answer if you do not 
have--
    Mr. Tribe. I would not mind answering. I think he is 
somewhere--
    [Laughter.]
    Mr. Tribe [continuing]. Between Scalia and Thomas, and I 
could explain the differences, but I do not think he is 
anything like Jackson or Harlan.
    Senator Feinstein. Thank you.
    Mr. Fried, I listened to your testimony on Justice Roberts 
with great interest. In a dialog you had with Senator Specter, 
I want to quote what you said. You said, talking about Roe, 
``It is not only that it's been reaffirmed as to abortion, but 
that it has ramified, it has struck roots, so it has been cited 
and used in the Lawrence case . . . in some of the opinions in 
the right-to-die cases, in the Troxel case, which is the 
grandparent visiting right case. So it is not only that it is 
there and it is a big tree, but it has ramified and exfoliated, 
and it would be an enormous disruption. So you not only get 
branches, you get leaves.''
    And then you went on to say, ``Since I do not know Judge 
Roberts except most casually, and I certainly have never 
discussed it, if you want a prediction from me, I would predict 
that he would never vote--not never--but he would not vote to 
overrule it for the reasons that I have given.''
    Would you make the same prediction about Judge Alito?
    Mr. Fried. I would, and I should say that after Judge Alito 
left my office, which was late in 1985, I think I have spoken 
to him three times, and then maybe 15 words. So it is a guess 
there as it was with Roberts, but, yes, that would be my 
prediction.
    Senator Feinstein. Thank you.
    Now, my question of anyone who would care to answer is 
about the value of a Presidential signing statement. If it is 
true--and it is--that the legislature passes legislation, makes 
findings of fact, that legislative intent is generally based on 
those who formulate the legislation and pass it, does a 
Presidential signing statement shape the law?
    Mr. Fried. I think that this has been much misunderstood 
here too. The Presidential Signing Statement Initiative, which 
I was involved in, I must say, was principally devised to curb 
the abuses of legislative history and legislative reports in 
which staff often--and I am afraid we continue to see that--
with the assistance of outside groups and lobbyists--different 
groups, different lobbyists--but with their assistance, plant 
little stink bombs in the legislative history, which then 
flower in later litigation.
    [Laughter.]
    Mr. Fried. The point of the signing statement was, if you 
like, a kind of Airwick against those stink bombs.
    [Laughter.]
    Senator Feinstein. You have aroused the staff.
    Mr. Tribe. There may be a lot of staff-oriented stink 
bombs, but the power to inject a poison pill in the legislation 
is what we see in the Signing Statement Initiative. And 
whatever was the original intent under Charles's tutelage, what 
has happened under the current administration is totally 
different. There are something like 100 examples now of 
references in these signing statements to the unitary 
Executive, and they are being used, they are being used to give 
the President the kind of control that not only FDR, but all 
the way back to George Washington you can find examples of the 
President saying, ``I am the President. This is my 
Government.'' But it is a big fallacy to say, as my friend 
Charles Fried did, that this has nothing to do with the power 
of Congress. Congress often enacts legislation to structure the 
executive branch and to limit the power of the President as the 
head of the branch, to tell the limbs of that tree that Charles 
described, and the leaves, exactly what to do.
    Chairman Specter. Thank you very much, Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Chairman Specter. We are going to adjourn for a--
    Senator Coburn. Senator Specter, I will defer my questions 
so that we will not have to have the panel come back, if that 
would be OK, and I will submit some questions.
    Chairman Specter. You are entitled to your round.
    Senator Coburn. But I think in all courtesy to our 
distinguished panel, this would release them, and I will be 
happy to submit some questions for the record.
    Chairman Specter. All right. We will proceed in that manner 
at your suggestion.
    As I had said earlier, New York Times reporter, David 
Rosenbaum, a memorial service is being held for him. he was 
brutally murdered on the streets of Washington very recently. 
We will recess for just a few moments. I would like the next 
panel to be ready and the Senators to be ready.
    [Recess at 10:05 a.m. to 10:40 a.m.]
    Chairman Specter. The hearing will resume.
    The first witness on our next panel, Panel 5, is Mr. Fred 
Gray, senior partner at Gray, Langford, Sapp, McGowan, Gray & 
Nathanson, a veteran civil rights attorney with an 
extraordinary record of representation. At the age of 24, he 
represented Ms. Rosa Parks, whose involvement in the historic 
refusal to give up her seat on the bus to a white man is so 
well known. That action initiated the Montgomery bus boycott. 
He was Dr. Martin Luther King, Jr.'s first civil rights lawyer. 
In 2004, Mr. Gray received the ABA Thurgood Marshall Award for 
his contributions to civil rights. A graduate of National 
Christian Institute, Alabama State University, and Case Western 
Reserve. Thank you for joining us, Mr. Gray.
    I haven't had an indication from Senator Leahy about whom 
they would like to give extra time to, but my sense is that you 
would be on the list, so we are going to set the clock at 10 
minutes for you. You may proceed.

  STATEMENT OF FRED D. GRAY, SENIOR PARTNER, GRAY, LANGFORD, 
       SAPP, MCGOWAN, GRAY & NATHANSON, TUSKEGEE, ALABAMA

    Mr. Gray. Thank you very much, Mr. Chairman.
    Chairman Specter. By way of explanation, the judges talked 
longer yesterday, and I thought it appropriate not to interrupt 
them, and I want to give the extra time to this panel. If 
Senator Leahy comes in and cuts you off, Mr. Gray, just 
remember I gave you 10 minutes.
    [Laughter.]
    Mr. Gray. Thank you very much, Mr. Chairman. And to my 
Senator, Senator Sessions, who represents us well in the 
Senate, to the other members of the Committee, of course, I am 
Fred Gray. I live in Tuskegee, Alabama, with offices there and 
in Montgomery. I appreciate this Committee inviting me to 
appear. I consider it an honor.
    For over 50 years, I have filed almost every imaginable 
type civil rights case in Alabama. Many of those cases have 
resulted in Supreme Court rulings and many of them precedent-
setting cases in which the Court declared unconstitutional 
certain State and city ordinances, including in the field of 
registration and reapportionment.
    As one who has been in the trenches and still is in the 
trenches, I appear today to attest to the tremendous importance 
of the reapportionment cases, those cases decided by the Warren 
Court, one of which I actually litigated and was my brainchild, 
the case of Gomillion v. Lightfoot.
    I am still troubled, extremely troubled by Judge Alito's 
comments made in his application, notwithstanding the testimony 
before this Committee. The reapportionment cases decided by the 
Warren Court made certain that the Federal courts had the power 
to ensure that voting rights were meaningfully protected. These 
rights had been violated by many of our States since 
Reconstruction. The cases illuminate the inequities of 
malapportionment which deprived African-Americans of voting 
strength across the Nation. In my view, there is no more 
important body of law than that generated in the field of voter 
registration and in civil and human rights.
    African-Americans in Alabama and other Southern States for 
years, even before Browder v. Gayle, which is the case that 
integrated the buses and which was a unanimous case of the 
Warren Court, were actively working toward obtaining the right 
to vote. For example, in my hometown now, Tuskegee, Alabama, 
the home of Tuskegee University where Booker T. Washington was 
its first president, where George Washington Carver made many 
of his scientific discoveries, and the home of the Tuskegee 
Airmen, African-Americans in that county filed lawsuits as far 
back as 1945 in order to obtain the right to vote.
    After years of litigation, when we were finally able to get 
approximately 400 African-Americans registered for an upcoming 
municipal election, in 1957 the Alabama Legislature passed a 
law which changed the city limits of the city of Tuskegee from 
a square to a 26-side figure, excluding all but three or four 
African-Americans and leaving all the whites in the city. And 
then the State said, ``We are not denying you the right to 
vote. We are simply changing the political boundaries of the 
city of Tuskegee, and you cannot vote now in the city elections 
because you are no longer there.'' I thought that was wrong, 
and so did the Supreme Court. We filed the case of Gomillion v. 
Lightfoot. That case substantially strengthened the law in 
securing the right to vote for African-Americans.
    The Gomillion case was the first significant 
reapportionment case decided by the Warren Court. In a 
unanimous decision, the Court held that the boundary change 
violated the 15th Amendment. Just as importantly, the Court 
rejected the argument that impairment of voting rights could 
not be challenged in the face of a State's unrestricted power 
to realign its political subdivisions. The Court stated: ``When 
a legislature thus singles out a readily isolated segment of a 
racial minority for special discriminatory treatment, it 
violates the 15th Amendment....Apart from all else, these 
considerations lift this controversy out of the so-called 
`political arena' and into the conventional sphere of 
constitutional litigation.''
    There is no question in my mind that it gave rise--
Gomillion v. Lightfoot did--to the other subsequent cases you 
have heard about, great reapportionment cases, Baker v. Carr, 
Gray v. Sanders, Reynolds v. Sims.
    I cannot overstate to this Committee the importance of 
these cases, for they laid the foundation for our democracy. 
The reapportionment cases enshrining the principle that every 
citizen has a right to an equally effective vote, rather than 
the right to simply cast a ballot. State legislatures could not 
dilute the votes of racial minorities by perpetuating unequal 
voting districts. And, most importantly, the reapportionment 
cases also established principles for challenges ``at-large'' 
and ``multi-member'' electoral systems enacted by many of the 
Southern States after the passage of the Voting Rights Act.
    When I filed the Gomillion case, we had very few African-
Americans registered to vote and had no legislators. I was one 
of the first two in 1970. Now Alabama has--and across the 
Nation there are over 9,000 registered--9,800 appointed and 
elected officials, and they are there because of the result of 
the Warren Court's decisions in Gomillion, Baker, Gray, 
Reynolds, and these other cases enacted by legislation since 
that time. So we have these persons serving with honor and 
distinction, from city council to the Congress.
    However, we still need a strong Supreme Court to continue 
to enforce these laws. I have seen in my home State, as fast as 
we get one law stricken, they will enact another. Now that we 
have a proportionate number of African-Americans in the 
legislature, we want to be sure that we have a strong Supreme 
Court that will not permit that to be changed.
    I respectfully submit and suggest that this Committee 
carefully scrutinize Judge Alito's disagreement with these 
cases. A nominee to the Supreme Court who has a judicial 
philosophy that is set against the Warren Court and against the 
reapportionment cases is, in effect, saying that he would turn 
the clock back. If this occurred, not only would African-
Americans lose, the entire Nation would lose the great richness 
of their contributions as we are currently enjoying. In my 
opinion, a Supreme Court Justice with these views would impede 
instead of protecting the right to vote.
    In conclusion, I submit that the next appointee to the 
Supreme Court should favor the protection of voting rights and 
should strengthen, and not weaken, the voting rights case law 
as developed by the Warren Court.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Gray appears as a submission 
for the record.]
    Chairman Specter. Thank you, Mr. Gray, and thank you for 
your remarkable service on civil rights and voting rights. Your 
listing of cases and listing of clients is enormously 
impressive, and it has been a great contribution to America.
    Mr. Gray. Thank you very much, Mr. Chairman.
    Chairman Specter. We turn now to Ms. Kate Michelman, who 
for 18 years, up until 2004, was president of the National 
Abortion and Reproductive Rights Action League, more properly 
known as NARAL Pro-Choice America. Prior to joining NARAL in 
1985, she was Executive Director of Planned Parenthood in 
Harrisburg, Pennsylvania, where she expanded the range of 
reproductive health services available in the area. She also 
trained medical students and residents in child development as 
clinical assistant professor in the Department of Psychiatry at 
Pennsylvania State University School of Medicine. And it is 
worthy of brief comment that we two Pennsylvanians have had 
many discussions on this issue at the same health club. 
Remarkable what the health clubs will do.
    Ms. Michelman. We miss you.
    Chairman Specter. What is that?
    Ms. Michelman. I said we miss you over there.
    Chairman Specter. Well, they don't have a squash court.
    [Laughter.]
    Ms. Michelman. I know that was a big mistake on their part.
    Chairman Specter. I had to change health clubs except for 
the Senate gym, where I see Senator Kennedy.
    [Laughter.]
    Chairman Specter. What is your time--
    Senator Kennedy. Can we take you up on that?
    Chairman Specter. We are going to put your time at 10 
minutes, Ms. Michelman, and we look forward to your testimony.

    STATEMENT OF KATE MICHELMAN, FORMER PRESIDENT, NATIONAL 
  ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE (NARAL) PRO-
                CHOICE AMERICA, WASHINGTON, D.C.

    Ms. Michelman. Thank you, Senator. Mr. Chairman, Senator 
Leahy, who is not here, and members of the Committee, it is my 
pleasure to talk with you today, and I must say I am deeply 
honored to be sitting next to this great man, Mr. Gray.
    Certainly for many days we have heard many legal experts 
and constitutional law theorists, but I think the voices of 
real people whose lives will be affected by the potential 
confirmation of Judge Alito have been absent from this 
discussion. And I am here as one woman among millions whose 
lives could be indelibly shaped by the confirmation of this 
judge.
    In 1969, I was a young, stay-at-home mother of three little 
girls, a practicing Catholic who had accepted the church's 
teachings about birth control and abortion. The notion that 
abortion might be an issue I would face in my own life never, 
ever occurred to me until the day my husband suddenly abandoned 
me and our family. In time, with nothing to live on, we were 
forced onto welfare. Soon after he left, I discovered I was 
pregnant. After a very long period of soul searching, of 
balancing my moral and religious values about the newly 
developing life, with my responsibility to my three young 
daughters, I decided to have an abortion.
    I might add, Mr. Chairman, that of the countless women I 
have encountered throughout my life, not one has made a 
decision about abortion without first contemplating the gravity 
of that choice. Not one needed the tutelage or supervision of 
the State to understand her own ethical values much less to be 
reminded to consult them. And every single one of them deserve 
the respect and protection afforded by Roe v. Wade.
    Now, because all of this occurred prior to Roe, I was 
legally prevented from acting privately on my decision. I was 
compelled to submit to two interrogations before an all-male 
panel of doctors, who probed every aspect of my private life, 
from my sex life with my husband, to whether I was capable of 
dressing my children. Eventually they gave me their permission. 
I was awaiting the procedure when a nurse arrived to tell me 
that State law imposed yet another humiliating burden. The 
Government required me to obtain my husband's consent. I was 
forced to leave the hospital, find where he was living, and ask 
him to give me his permission.
    Now, this was incredibly humiliating, and an experience 
that awakened me to a lifetime of activism. I tell you this 
story not to get your sympathy, I tell this story because this 
nomination poses a real threat that women will once again face 
the dreadful choice between the degradation of the Review Board 
and the danger of the back alley, and this is neither hyperbole 
nor hype. It is the simple demonstrable reality of the 
situation.
    Predicting how any given judge will decide any given case 
is a Washington parlor game, in my view, that distracts from 
the central issue. That issue is whether we any longer will 
recognize limits on the Government's authority to reach into 
the most intimate areas of our private lives. There is nothing 
in Judge Alito's lengthy public record to suggest that he 
recognizes such limits for anyone, and even less so for women, 
and there is much in his record that indicates, I think, 
clearly and beyond the boundaries of reasonable dispute, that 
he rejects the idea of privacy, personal privacy, as a 
fundamental American ideal.
    A woman's right to choose is a powerful manifestation of 
privacy, but it is one right among many, and all of them should 
concern us. There is no sense in Judge Alito's writings or 
rulings that privacy is a fundamental constitutional right. In 
his record, not only are individuals often powerless against 
the prerogatives of the State, individuals are more often than 
not simply absent all together. In many ways, what Judge Alito 
has written is less disturbing than what he omits, any sense of 
how his legal rulings bear on real people whose lives are 
shaped by his decisions.
    When he ruled that a Pennsylvania law requiring women to 
notify their husbands before obtaining an abortion was not ``an 
undue burden,'' there was no sense that a woman like me ever 
existed or even mattered. When he wrote that commonly used 
methods of birth control could be classified as methods of 
abortion, there was no indication he considered the women who 
would be forced into unwanted pregnancies. His writings contain 
ample veneration for the State, but I think place little value 
on the individuals whom Government exists to serve, protect and 
respect.
    I have been involved in many Supreme Court nominations, but 
frankly, none more important than this one, nor as dangerous, 
for the contrast between Judge Alito and the Justice he would 
replace is quite stark. As the first woman to serve on the 
Court, Justice O'Connor brought a very unique perspective to 
the law that is evident in her opinions, upholding a woman's 
right to choice, protecting women from discrimination, and 
defending affirmative action. Quite often--you have talked 
about this a lot--she has been the decisive vote in 5-4 cases, 
whose balance Judge Alito would now tip the other way.
    Here, Mr. Chairman, it is important to note that Justice 
O'Connor is a judicial conservative, who has not always fully 
protected constitutional rights and liberties, but she crafted 
opinions that retained meaningful protections for rights that 
other Justices sought to deny completely.
    But the most disturbing difference between these two 
jurists is not simply the conclusions they reach, but also how 
they reach them. Justice O'Connor considered each case with 
careful attention to what the law means and who it affects, for 
she knows that that is the essence of justice. In Judge Alito's 
approach to the law, there is neither justice, nor regard for 
women's human dignity.
    Judge Alito has parried challenges to his record by 
promising an open mind and a respect for precedent. We must ask 
whether this assurance offered only now, can be allowed to 
outweigh the totality of this man's record. Millions of 
American women whose lives, privacy and dignity have a place in 
this debate would have to conclude no.
    Thank you.
    [The prepared statement of Ms. Michelman appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Ms. Michelman.
    Our next witness is Professor Ronald Sullivan, Associate 
Clinical Professor of Law at Yale. He is a graduate of 
Morehouse College in 1989, and a law degree from Harvard in 
1994. He served for 1 year in Nairobi, Kenya as a visiting 
attorney for the Law Society of Kenya, and in that capacity was 
on a committee charged with drafting a new constitution for 
Kenya.
    We very much appreciate your coming in today, Professor 
Sullivan, and the floor is yours, and the clock will start at 
10 minutes.

   STATEMENT OF RONALD S. SULLIVAN, JR., ASSOCIATE CLINICAL 
 PROFESSOR OF LAW, AND SENIOR FELLOW, JAMESTOWN PROJECT, YALE 
               LAW SCHOOL, NEW HAVEN, CONNECTICUT

    Mr. Sullivan. Thank you very much, Senator Specter, and 
Senator Leahy in his absence, members of the Committee. Thank 
you for inviting me to testify at this very important 
expression of our democracy.
    I have been asked to comment on Judge Alito's Fourth 
Amendment jurisprudence. Two broad themes follow from his 
record. First, Judge Alito's Fourth Amendment opinions reveal a 
clear pattern of privileging Government power when it comes 
into conflict with individual liberty. Indeed, in the 17 
opinions that the nominee has authored regarding the Fourth 
Amendment, in his more than 15 years on the bench, Judge Alito 
has ruled to suppress evidence only once.
    The second broad theme is that Judge Alito is a skilled, 
legal writer with a sharp analytical mind. Almost none of his 
opinions appears to be a radical departure from accepted 
jurisprudential conventions. Rather, his constitutional 
criminal procedure decisions, read together, demonstrate a 
pattern that cannot be ignored. In over 50 constitutional 
criminal procedure cases that I have reviewed, Judge Alito 
ruled in the government's favor over 90 percent of the time. To 
borrow an old phrase, as the government goes, so goes Judge 
Alito in a criminal law context.
    But the point I make here is more than a mere statistical 
correlation. I want to make a deeper and more substantive 
point. Judge Alito's tendency to privilege government power in 
a criminal context represents a failing in his jurisprudence 
for the following three reasons.
    Number 1: Judge Alito criminal law corpus demonstrates a 
judicial philosophy that improperly subordinates privacy, 
dignity and autonomy concerns to the interest of the 
government.
    Number 2: Even when the government undeniably violates the 
Fourth Amendment, Judge Alito employs legal rules to excuse the 
government for its misbehavior.
    Number 3: Judge Alito shifts from a strict constructionist 
to an activist jurist at times when the government's interest 
so dictates.
    Let me briefly address each of these propositions in turn, 
and of course, I give much greater detail in my written 
statement. First, privacy and dignity concerns. Groody v. Doe 
has been discussed all week, and I assure you I shall not be 
redundant. Let me simply invite the Committee to read my 
comparison of Groody with another one of his cases, Leveto v. 
Lapina. In Groody, Judge Alito was only able to muster up one 
clause, not even a full sentence, giving voice to the highest 
order dignity concerns involved or implicated in the strip 
search of a 10-year-old girl. Compare this to Leveto, a tax 
evasion case involving the search of a wealthy veterinarian and 
his spouse, who was wearing a nightgown, where Judge Alito 
devotes four entire pages of text to express the ``indignity'' 
or ``stigma'' concerns associated with the illegal search. In 
no other, I repeat, no other Fourth Amendment case that Judge 
Alito authored, did he spend even a fraction of the time 
expressing the dignitary objections that he did in Leveto. One 
is forced to wonder whether Judge Alito has a more robust 
appreciation for the privacy and dignity concerns of the 
wealthy or the class of individuals typically charged with tax 
evasion or crimes of that sort.
    In the area of what I have characterized as excusing 
governmental misbehavior, Judge Alito frequently uses the good 
faith exception or the qualified immunity doctrine to cure an 
otherwise illegal search. Indeed, in nearly one-third of his 
Fourth Amendment cases, Judge Alito excuses the government's 
unconstitutional invasion of our privacy. Now, the insidious 
effect, the on-the-ground effect of the heavy reliance on the 
good faith exception or the qualified immunity exception is 
that the exceptions tend to swallow up the rule. This gives 
government officials the perverse incentive to knowingly 
violate the constitutional rights of our citizens because no 
practical consequences follow.
    So Judge Alito's rulings will take the following form. 
There was no substantive violation of the Fourth Amendment, 
therefore, conviction affirmed; or, yes, there was a 
substantive violation of the Fourth Amendment, as in the Leveto 
case, and it was a horrible violation, but even though there 
was a violation, I am going to interpose a qualified immunity 
defense, and the government is therefore shielded from civil 
liability. This form of argument can be seen throughout his 
jurisprudence.
    Now to the strict constructionist argument. Judge Alito was 
praised by many as being a true conservative jurist, a strict 
constructionist, and that proposition has been almost assumed, 
as I have listened to the hearings this week. But that he is a 
strict constructionist is not true all of the time. A review of 
his entire criminal law jurisprudence demonstrates that Judge 
Alito shifts his interpretive style when necessary to rule in 
accord with the government's interests.
    Two of Judge Alito's opinions illustrate my claim, Sandoval 
v. Reno and U.S. v. Lake. In Sandoval, Judge Alito employs a 
literalistic and plain meaning construction of the relevant 
statute to limit, to limit the scope of a defendant's rights. 
There is a very technical habeas issue that I will not go into, 
but essentially Judge Alito said--he cited the captions in the 
relevance statute in bold letters and all caps twice, and said, 
``This is all we have to look at. This answers the question to 
congressional intent.'' And that is within the norm of judicial 
reasoning for a strict constructionist. But he uses this 
interpretive style to limit the scope of a defendant's right.
    But in Lake he shifts his interpretive style and uses a 
broad, liberal even, statutory construction to augment the 
scope of government power. More specifically in Lake, Judge 
Alito found that a car, located the functional equivalent of a 
city block away from its owner and out of its owner's eyesight, 
was nonetheless in the ``presence of the owner.'' To do so, 
Judge Alito relied on a Ninth Circuit, yes, a Ninth Circuit 
Court of Appeals ruling to articulate a remarkably broad 
definition of ``presence.'' This sort of shifting jurisprudence 
begins to look like it is result driven and not restrained in 
the jurisprudential tradition in which Judge Alito positions 
himself.
    We are living in a moment where the Executive is making 
extraordinary claims of authority to conduct investigations of 
U.S. citizens. The delicate balance between liberty and safety 
that the Framers fought so hard to erect, and that their 
successor generations fought so hard to maintain, needs our 
continued vigilance to sustain.
    In the United States perhaps no right is regarded as more 
sacred, more worthy of vigilant protection, than the right of 
each and every individual to be free from government intrusion 
without the unquestionable authority of the law. Judge Alito, 
on my read of his constitutional criminal procedure opinions, 
shows an inadequate consideration for the important values that 
underwrite these norms of individual liberty, the very norms 
upon which this constitutional democracy relies for its 
sustenance. This Committee and this Committee's decision on 
whether to consent to Judge Alito's nomination will have a 
profound impact on how liberty is realized in the United 
States.
    In addition to Judge Alito's constitutional criminal 
procedure decisions, I have reviewed nearly 415 of Judge 
Alito's opinions under both the auspices of the Alito Project 
at Yale, where a number of my colleagues and I reviewed all 415 
of his opinions, and under the auspices of the Jamestown 
Project at Yale, where I serve as a Senior Fellow. While I have 
not studied in detail all 415 of his opinions--and I should say 
the opinions that he authored, which I found to be most 
instructive--I find this tendency to be consistent with other 
areas of the law as well.
    That said, I would like to thank the Committee for the 
opportunity to share my remarks with you, and I look forward to 
answering any questions that the Committee may have.
    [The prepared statement of Mr. Sullivan appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Sullivan.
    We now turn to Professor Amanda Frost, Assistant Professor 
of Law at American University's Washington College of Law. She 
is a graduate of Harvard College, 1993, with a bachelor's 
degree and a law degree from Harvard Law School in 1997. Her 
areas of specialization include civil procedure in Federal 
courts, and is the author of several Law Review articles. As 
staff attorney for the Public Citizen's Litigation Group, she 
has litigated cases before the U.S. Supreme Court and Federal 
Courts of Appeals. She was a consultant for the Shanghai 
Municipal Government in drafting open government legislation.
    Thank you for being with us today, Professor Frost, and we 
will set the clock at 10 minutes for your testimony.

    STATEMENT OF AMANDA FROST, ASSISTANT PROFESSOR OF LAW, 
  WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY, WASHINGTON, 
                              D.C.

    Ms. Frost. Thank you. Mr. Chairman, Senator Leahy and 
members of the Committee, I feel honored to have the 
opportunity to testify at these important proceedings. My 
comments today are about reforms that are needed, and the 
procedures and practices that govern recusal of Federal judges.
    Your consideration of Judge Alito may be affected by your 
views about whether he should have recused himself from certain 
cases while sitting on the United States Court of Appeals for 
the Third Circuit. That is why I wanted to discuss with you 
today certain problematic recusal practices that too often have 
led Federal judges into situations into which their recusal 
decisions undermine the public faith in the judiciary.
    Because the reputation of the judiciary is affected as much 
by the appearance as the reality of bias, Congress has enacted 
a statute, 28 USC section 455, that provides, ``Any justice, 
judge or magistrate judge of the United States, shall 
disqualify himself in any proceeding in which his impartiality 
might reasonably be questioned.'' By using this language, 
Congress sought to ensure that even when a judge is certain 
that he or she could be impartial, that judge must step aside 
if members of the public might reasonably disagree.
    In essence, the law requires a judge to recuse even in 
borderline cases in which the possibility of bias or appearance 
of bias is slight.
    I think this is a good standard, but a key problem with the 
statute is that it contains no procedural mechanisms to govern 
the recusal decision. It does not say how the parties are to 
seek recusal, does not say how evidence about a judge's 
potential biases or conflicts are to be shared with the 
parties, does not clarify who should make the recusal decision, 
or whether that person should articulate any reasons for making 
that decision.
    So, for example, Supreme Court Justices recuse themselves 
in dozens of cases a year, and they almost never explain why 
they are doing so. When a party files a motion seeking a 
Justice's recusal, which is a rare event and something that 
most parties would be reluctant to do, there is no formal 
process through which the entire Court considers and decides 
that motion. Instead, it is sent to the one Justice whose 
impartiality is being questioned, and that Justice makes the 
decision on his or her own, often without explanation.
    This procedural vacuum has, I believe, been the cause for 
recurring controversies over judges' failures to recuse, 
controversies that undermine the very goal of section 455 to 
protect the integrity of the judicial branch.
    I want to give just a few examples of some of the recusal 
problems that have occurred over many years. In 1969, Supreme 
Court nominee Clement Haynsworth failed to be confirmed for 
that position, in part due to revelations that while sitting on 
the Fourth Circuit he had sat on a number of cases in which he 
had a small financial interest.
    In 1972, then-Associate Justice William Rehnquist was 
criticized for sitting and hearing a case that he had commented 
on publicly while he was in the Department of Justice.
    In 2004, most of us remember, Justice Scalia made a 
controversial decision not to recuse himself from a case in 
which Vice President Cheney was a party, despite having 
vacationed with the Vice President shortly after the Supreme 
Court had agreed to hear the case.
    And then most recently, Judge Samuel Alito has been 
questioned by this Committee for his failure to recuse himself 
from a case in which Vanguard was a party, despite the fact 
that he owned mutual funds with Vanguard, and as stated in his 
1990 Judiciary Committee questionnaire that he would recuse 
himself from all such cases.
    What everyone's views are about whether the individual 
judges and Justices in these examples should have recused 
themselves--and I recognize there is differences of opinion on 
that--but whatever your views are, I think most would agree 
that the process by which that decision was made did not work 
to foster public confidence in the judiciary. These problems 
with the recusal law are particularly evident and disturbing at 
the Supreme Court level. When a district court judge or circuit 
court judge fails to recuse themselves, that decision may be 
reviewed by a higher court.
    As I said, when a Supreme Court Justice faces a question of 
recusal, the Justice makes the decision on his or her own and 
there is obviously going to be no review of that decision. 
There is no higher court.
    Furthermore, the stakes are simply that much higher at the 
Supreme Court, which hears the most divisive and important 
cases and which sets the law for the Nation.
    Finally, the Supreme Court is the public face of the 
judiciary, and because of this, their recusal practices are 
more likely to have a negative effect on the public's 
perception of the Judiciary.
    I propose a series of procedural reforms that could be made 
either by the Justices themselves in a rule, or by Congress, by 
amending the recusal laws. First, there should be more 
transparency. Judges should be required to inform the parties 
and the public of any information that would be relevant to the 
recusal question. Even if they do not think recusal is 
required, the parties should be given full information, and the 
public as well.
    Second, when judges do decide to recuse themselves, they 
should at least issue a brief explanation explaining why. That 
will provide a body of precedent to guide future litigants and 
judges facing these difficult recusal situations.
    And third, when a judge does not decide or does not think 
it is clear that he should recuse himself, that judge should 
turn that decision over to his colleagues, or at the very least 
consult his colleagues, rather than make the decision on his 
own.
    With these reforms in place, I think we would better 
protect both the reputation of the judiciary and of the judges 
who serve the public.
    Thank you for inviting me to share my views with you today.
    [The prepared statement of Ms. Frost appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Frost.
    We now turn to Professor John Flym, professor of law at 
Northwestern. He has taught Professional Responsibility and 
Advanced Criminal Procedure. He served as counsel to Ms. 
Shantee Maharaj, the plaintiff in the 2002 case where Judge 
Alito ruled in favor of the Vanguard Mutual Fund. He got his 
bachelor's degree from Columbia in 1961 and his law degree from 
Harvard.
    Thank you for agreeing to be a witness here today, 
Professor Flym, and we look forward to your testimony.

    STATEMENT OF JOHN G.S. FLYM, RETIRED PROFESSOR OF LAW, 
  NORTHEASTERN UNIVERSITY SCHOOL OF LAW, BOSTON, MASSACHUSETTS

    Mr. Flym. Thank you, Mr. Chairman, Senator Leahy, members 
of the Committee. I am honored to be before you today.
    I would like to make one correction, if you please. It is a 
common error, but I have taught at Northeastern University, 
which is in Boston.
    I am indeed the lawyer who challenged Judge Alito's failure 
to recuse in the Monga case, the Monga/Vanguard case.
    What I would like to do now is to address three points, one 
of which was particularly addressed by Senator Hatch yesterday 
in his questioning of John Payton, the Eighth Federal Circuit 
representative. Does the law require Judge Alito to recuse 
given his investments in Vanguard?
    Now, my colleague Amanda Frost addressed Provision (a) of 
the statute, which speaks in general terms and states the 
general principle based on the appearance. A judge shall recuse 
if someone could reasonably question the judge's impartiality. 
Section (b), however, is the applicable provision. Section (b) 
doesn't state a general proposition. It states a specific 
proposition. Among them (b)(4) says that a judge shall recuse 
if the judge has a financial interest in a party to the case. 
It then goes on in subsection (d) to define what ``financial 
interest'' means, and it says a financial interest means a 
financial interest, ``however small,'' and then it goes on to 
list the various exceptions.
    Now, Judge Alito in his answers filed in the questionnaire 
which he submitted to this Committee relies on the third 
exception in subsection (d), the one which plainly has nothing 
whatsoever to do with mutual funds. It has to do with 
interests, for example, in insurance policies. The one 
exception that does address mutual funds is the one raised by 
Senator Hatch, but it says the opposite of what Senator Hatch 
suggested yesterday. It says that one of the exceptions is that 
an investment in a mutual fund shall not be regarded as a 
financial interest in the securities held in the fund's 
portfolio. Now, that is an obvious proportion. It has nothing 
whatsoever to do with simply saying that an investment in 
mutual funds doesn't qualify as an interest, as a financial 
interest within the meaning of subsection (b), because if it 
did, Congress would simply have defined what--it would simply 
have said in the exceptions that financial interest doesn't 
include an investment in a mutual fund. That is what the 
statute says.
    Now, the statute goes back to 1974. It would be astonishing 
if there weren't interpretations, case law of the statute. 
There are lots of interpretations. The Second Circuit in 2002, 
that is, the year before Judge Alito wrote the December 10th 
letter to Judge Scirica saying, ``After I received the November 
2003 motion that I should have recused myself, I reviewed the 
law, and having reviewed the law, I concluded that the statute 
doesn't require me to recuse. But, nevertheless, I am going to 
do that so that you can appoint a panel to consider the pending 
motion.'' He did not recuse from the case. A more important 
detail than might otherwise appear.
    Now, in his statement to this Committee, his reliance on 
the third exception for insurance policies is unexplainable. It 
is incoherent. It has nothing whatsoever to do with mutual 
funds. The first exception, with due respect to Senator Hatch, 
says the opposite of what the Senator suggested yesterday. It 
says mutual funds do count as financial interests. These simply 
do not include investments that the fund makes in the 
securities, that is, the securities which are listed in the 
fund's portfolio.
    Now, I, like everyone else, have been enormously impressed 
by all of the testimony, particularly his colleagues and 
everyone who has worked with judges, that he is a brilliant 
man, that he studies the law very carefully, that he pays 
particular attention to the arguments presented to him because 
he is a fair-minded man.
    Now, at the time that he wrote this letter, he had the 
benefit of the motion, which included everything that I have 
just told you, including the case law and the analysis, and a 
lot more. It is inconceivable to me that he could have made the 
statement that he made in his letter to Judge Scirica and in 
his questionnaire to this Committee.
    I will now move on to a second point. The second point is 
part of what he testified to. He said that he is--and I think 
this was in response to the question by Senator Kennedy: ``And 
I am one of those judges that you described who take recusal 
very, very seriously.'' Is that a credible statement?
    He also says that it never crossed his mind that there was 
a recusal issue when he looked at the Vanguard case. The name 
``Vanguard'' is plastered all over the documents. We are 
talking about literally dozens and maybe hundreds of references 
to Vanguard, including in the opinion that he himself authored.
    He made a pledge to this Committee in 1990, which I assume 
he did after reading and understanding what the 1974 recusal 
statute said, he continued to invest in Vanguard over the years 
and watched his investments grow into the hundreds of thousands 
of dollars. I have heard estimates that run way beyond the 
$370,000 which has been mentioned here. And while he was 
sitting on the appeal in the Vanguard case, he continued to 
make investments, both before and after the opinion.
    Now, I would like now to move to a third point, which I 
consider to be perhaps most important in a sense--not most 
important, but just as important. I spent 40 years of my 
professional life representing the little guy. My client, Ms. 
Maharaj, exemplifies the little guy. She has nothing, not one 
penny. All she had was the IRA which, by law, passed to her at 
the death of her husband in 1996.
    Now, that IRA is supposed to be sacrosanct. The Supreme 
Court has held in a trilogy, beginning with Guidry in the 
1980s, Patterson in 1992, and most recently, Rousey in 2005, 
that creditors can't reach IRAs.
    Now, just as has been suggested with respect to how the Roe 
decision may be undone through small, creative exceptions to 
that ruling, likewise here what the judge did--and I am 
confident that he did read the record and that he understood 
all too well what was at stake--was go out of his way on the 
most dubious of legal principles to rely on the supposed 
decision of the Massachusetts court, which, in fact, is on 
appeal--I argued the appeal in October. There is no decision 
yet. We don't know how the Massachusetts court will decide. But 
all of the law which I set out in my motion makes it clear that 
he had no business relying on that Massachusetts decision.
    What that means is that, with respect to IRAs only, never 
mind the other forms of retirement savings, 40-plus million 
Americans with their savings in IRAs, with more than $2.3 
trillion in those IRAs, could see the security in what they 
thought were sacrosanct savings beyond the reach of any 
creditors, no qualification, as the Patterson court said in 
1992, all of a sudden threatened the same way that the 
employees of IBM suddenly woke up to discover that their 
pensions were pretty much smoke and mirrors.
    Thank you very much, members of the Committee. I realize 
that I spoke with some passion. I had promised myself to be 
calm and collected, but I confess that unless--but for the fact 
that President Bush nominated Judge Alito, no one would ever 
have heard of Ms. Maharaj or the Vanguard case and Judge 
Alito's role in it.
    Thank you.
    [The prepared statement of Mr. Flym appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Professor Flym.
    Mr. Gray, beginning my 5 minutes of questioning with the 
issue of voting rights, which you have testified about so 
eloquently, are you at all comforted by Judge Alito's statement 
that the principle of one person/one vote is firmly embedded in 
the law of the land and he will follow that?
    Mr. Gray. Well, I am still troubled by the fact. I am glad 
to hear that. And if what that means is that if he is confirmed 
he will be the type of Justice protecting civil rights and 
human rights that Hugo Black did when he was on the Court, then 
I would be happy to have him serve. But I don't remember--and I 
think the first time I recall that he made this statement is 
after it was raised in these hearings.
    I would think if he was sincere about it, realizing what he 
had said in 1985, that he would have disclosed the fact that, 
``I said that then, but my position now is entirely 
different,'' and would have been rather candid upright before 
the matter was raised, I am troubled that we would even have a 
nominee who would have to explain this. Because if these rights 
are so embedded, then there should never have been any 
statement the way it was in the first place.
    Chairman Specter. Ms. Michelman, on the Roe issue, which is 
a matter of enormous importance, I started my questioning of 
Judge Alito with that subject, as I did with Chief Justice 
Roberts. And we have had the examples of Justice O'Connor, who 
was against abortion rights before she came to the Court, and 
Justice Kennedy against abortion rights, and a lot of worry 
about Justice Souter. And you have the political process where 
the judicial appointments are part of the process. And you 
heard Judge Alito talk about the precedents and the culture of 
the country and being embedded and a living document, which is 
very different from what some others have testified to in 
recent times.
    You have watched this situation very closely, and you have 
noted who some of the other prospective nominees are, at least 
reported. If Judge Alito is rejected, what do you think the 
prospects are of getting a nominee whom you like better?
    Ms. Michelman. Well, Senator, it is true that the President 
won the election and he has the right to nominate Justices who 
share his values and his views. He made it very clear that his 
model Justices were Scalia and Thomas, whose views about 
women's constitutional legal rights, including the right to 
choose, are a danger to American women and to their lives and 
their health and their dignity. So he has that right, but you 
share a co-equal responsibility, and the American public, the 
individuals in this Nation have only a voice in this process 
through you. And I would answer you by saying that I think 
every nominee has to be evaluated on his or her merits, on his 
or her record, on his or her views, judicial and philosophical 
views included. And we have to take one at a time. And if that 
nominee's record is clearly a danger to the constitutional and 
fundamental rights of the American people, then I think that 
nominee should be defeated, and we will take on the next one.
    But I think the President has, you know, made his case on 
this nomination. I think Judge Alito's record--and if you look 
at the totality of his record, his service in the Justice 
Department, his service on the court, it is very clear that he 
will move the Court in a very different and dangerous direction 
for women's legal rights. And--
    Chairman Specter. I want to ask you one more question, and 
my time is almost up. You have commented about the other 
issues, philosophical--you have enumerated them, but we have 
been over Executive and legislative power. We have been over 
congressional power, affirmative action, many items. Do you 
think that a nominee ought to be rejected on the basis of a 
single issue?
    Ms. Michelman. I don't consider the right to privacy, 
personal privacy, the right to dignity and autonomy and control 
over one's life as a single issue. I do think it is profound 
and will have enormously important implications for women, for 
men, for families in this Nation. And I do indeed think it is 
so serious and profound that he should be rejected on those 
grounds, even if there were no others, and I would subscribe 
there are other grounds.
    Chairman Specter. Well, thank you very much for your 
testimony, Ms. Michelman--
    Ms. Michelman. You are welcome.
    Chairman Specter [continuing]. And for your service. You 
have been in the forefront of this issue for a long time, and I 
know how deeply you feel about it. And I thank you for sharing 
with us your personal experiences. They are not easy to testify 
about.
    Senator Leahy?
    Senator Leahy. I would concur with that. I thought of that 
prior to your testimony when reading the article about you 
yesterday in the Post, a story I was familiar with. And you are 
one of the reasons I came back. I was at a friend's memorial 
service and will return to that right after my questioning.
    Ms. Michelman. Thank you.
    Senator Leahy. But you are absolutely right that there is 
an awesome responsibility in the Senate in the choice, first 
with the 18 of us here, who are the only 18 people in America 
who got to question Judge Alito, if you don't count the first 
vetting they had by Vice President Cheney, Karl Rove, and 
Scooter Libby a day or two before he was nominated by the 
President. As to that, of course, we are not privy to what was 
said or what assurances were made, nor was he about to share 
that with us.
    Mr. Gray, I am glad you are here. You spent a lifetime, a 
very distinguished lifetime, fighting for those denied the 
right to equal protection, equal dignity. I know that after you 
graduated law school, you immediately went to work defending 
two icons of America, Rosa Parks and Dr. Martin Luther King, 
Jr., in the Montgomery bus boycott.
    We have heard Judge Alito say that one of the things that 
motivated him was his objection to Baker v. Carr, the 
reapportionment case. We heard Justice Frankfurter, who 
delivered a scathing dissent in that. And we know the position 
of the second Justice Harlan, who Judge Alito admires, who 
feels very strongly that Baker was wrong.
    How important was it that the Supreme Court didn't follow 
these attitudes, didn't follow Justice Harlan's lead, and 
instead intervened in the 1960s to correct massive disparities 
in the size of voting districts, the underrepresentation of 
voters from urban areas, and to ensure the removal of poll 
taxes and other barriers to minorities to vote? What is the 
difference it makes in America today that the dissenters did 
not win?
    Mr. Gray. The difference is then, prior to these decisions, 
and even prior to Brown v. Board of Education, and prior to 
Gomillion v. Lightfoot and Browder v. Gayle, the case that 
desegregated the buses, we had very few African-Americans and 
other minorities registered. We had little or no African-
Americans in public office. For example, in my state, in 1957 
we had none. Now my State has approximately the same number of 
persons in our State legislature. It mirrors the population. We 
now have thousands of African-Americans and other minorities 
who are holding public office, and an additional thousand that 
those public office holders have appointed to elected office.
    Senator Leahy. When you started this fight, did you very 
believe you would see an African-American mayor, an African-
American sheriff in some of--
    Mr. Gray. No, sir. And the first one since Reconstruction 
was Lucius Amerson in my county. I got him elected, but I 
couldn't get elected to the State legislature.
    Senator Leahy. That is why I raised that. You anticipated 
what I was raising.
    Ms. Michelman, you know about the job application of Judge 
Alito to the Meese Justice Department. He said he personally 
believes very strongly the Constitution does not protect the 
right to an abortion. In your reading of Judge Alito's 
writings, but especially your observations of the past few days 
of these hearings, have you seen or heard anything to reassure 
you that Judge Alito's personal beliefs about constitutional 
privacy will not affect his decisions as a judge?
    Ms. Michelman. No, I haven't. In fact, I don't think there 
is--again, if you go back to his memo you are referencing, the 
work he did in the Justice Department, and his record on the 
court, his decisions on the court I think reveal very clearly 
that he does not believe deeply in a fundamental right of 
privacy and apply that belief that the Constitution protects 
that fundamental right of privacy to individuals.
    So, no, I am not--I am deeply concerned that Judge Alito 
not only was proud and discussed very openly how proud he was 
to be a part of an administration that repeatedly sought the 
Court to overrule Roe and overrule other privacy cases, but 
that he actually laid out a strategy for the administration to 
pursue the overruling of Roe in an incremental strategy, to 
pursue taking away the right of women to decide for themselves 
and to keep the government out of these very private decisions. 
He laid out a strategy that you could keep Roe in place as a 
shell, not overturn it directly, but incrementally dismantle 
those rights. And the States, by the way, have--the anti-choice 
movement in this country has pursued that strategy very 
effectively and there are now hundreds of laws that really 
burden women, both financially and emotionally, when they are 
trying to make responsible choices.
    No, I have no confidence at all that Judge Alito, when 
faced with the question of whether women should decide or 
whether the government, State and Federal, has the right to 
interfere in these intimate decisions that women make, that he 
will come down on the side of the government.
    Senator Leahy. My time is up.
    Ms. Michelman. Thank you.
    Senator Leahy. I just want to thank all five of you for 
being here. I know that it is not easy to come and very 
publicly oppose somebody who has the backing of the President 
of the United States and the backing of so many powerful 
Senators to be on the U.S. Supreme Court. But it goes to the 
tradition of speaking truth to power, and I thank you all.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch?
    Senator Hatch. I think I will reserve my time, Mr. 
Chairman.
    Chairman Specter. Senator Kennedy?
    Senator Kennedy. Thank you. Five minutes, a number of areas 
to cover.
    First, I thank all of you for being here. And, Dr. Gray, in 
the application, the 1985 application and where the nominee 
points out, ``In college, I developed a deep interest in 
constitutional law, motivated in large part by disagreements 
with Warren Court decisions, particularly in the areas of 
criminal procedure, the Establishment Clause, and 
reapportionment.''
    Just very, very quickly, how important--in terms of having 
our Nation, a fairer and more just Nation--how important are 
those Warren Court decisions on reapportionment? And just 
quickly, what would this country look like if they had not made 
those judgments? Would we be a different Nation?
    Mr. Gray. We would be a different Nation, and it would all 
appear to be whites and no persons of color would have very 
little if any involvement in it.
    Senator Kennedy. Professor Sullivan, I want to ask you 
about the impact of Judge Alito on average Americans. This is 
something we have heard from the power structures around here. 
I want to hear what impact you believe his service on the Court 
would have for average Americans, and I want to clarify that 
not all Fourth Amendment cases are criminal cases, there are 
civil cases too. Could you comment about that?
    Mr. Sullivan. Yes, that is correct.
    Senator Kennedy. The idea that sometimes innocent people 
are caught up on these police searches and bring Fourth 
Amendment charges.
    Mr. Sullivan. Yes. In Groody, for example, which we have 
talked about a lot, it was a civil damages case. Congress has 
provided a remedy for our citizens when their rights have been 
violated, their constitutional rights, in this case search and 
seizure rights.
    Let me say that the Warren Court, in answer to your 
question, set forth a jurisprudence with respect to the Fourth, 
Fifth and Sixth Amendment, that in effect, limited the scope of 
police power vis-a-vis the average citizen, that there are some 
rights deeply enshrined in the Constitution that we all have 
from the highest and most powerful to the average Joe, and that 
is what the Fourth, Fifth and Sixth Amendment protect.
    My read of Judge Alito's jurisprudence in this area is that 
he weakens the protections. He is very deferential to 
institutions and would allow law enforcement practices to 
expand in a way that I suggest to you would have a negative and 
detrimental impact on the nonpowerful in our country.
    Senator Kennedy. Professor Flym, just on this issue of 
recusal, is it your understanding that under the existing code 
of conduct for U.S. judges, that Judge Alito should have 
complied, should have recused himself, and should have 
established on his letter of recusal or on the system, 
Vanguard, and that he failed to do so with his interpretation 
of the ethic?
    Mr. Flym. Absolutely, Senator. But in addition to the Code 
of Judicial Conduct that is frequently understood in terms of 
ethical rules, the statute enacted by Congress in 1964 trumps 
whatever else may be adopted, and it is unmistakably clear that 
he had an obligation to recuse.
    Senator Kennedy. Ms. Michelman, I want to first of all 
thank you. That was a splendid performance on Meet the Press.
    Ms. Michelman. Thank you.
    Senator Kennedy. In response to the questions, just to pick 
up on the Chairman's thought where you talked about the dignity 
of women. You touched on it here now. I would just like you to 
use up whatever time I have in talking about what you think the 
implications would be by this nominee, just on women's issues 
just generally. I think you have spoken very, very eloquently 
on the choice issue. Obviously, refer to that if you would too, 
but I am very, very interested in this broad view of yours 
about both the dignity of women, women in the family, women in 
our society, the role that they are playing, and a bit about 
what kind of country we would be if we did not have justices 
that protected that, and what kind of country we can become if 
they do.
    Ms. Michelman. Thank you, Senator, also for your generous 
comment about my Meet the Press performance. We should not 
forget that women have had a long and hard journey to full 
equality in this Nation. It has only been 84 years since we 
have had the right to vote. So it has been a long and difficult 
journey, and one that has taken great effort, and both as a 
political movement, but also through the law, to have 
recognized that we could vote, we could own property, we could 
get charge accounts--which I was denied the right to have a 
charge account because I was not married in 1969. It was 
shocking.
    So it has been a very long and arduous journey. Women's 
equality and full capacity to be partners, equal partners with 
men in the socioeconomic political life of this Nation is 
dependent on our right to determine the course of our lives, 
our right to education, our right to employment, our right to 
equal pay. All of these things are determined by our right to 
control our lives, and we absolutely need a legal system that 
recognizes, respects women's dignity and autonomy, including 
our right to determine when to become mothers and under what 
circumstances, and even whether. It is hard to find the words 
to adequately express how important that is.
    Senator Kennedy. Thank you.
    My time is up. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kennedy.
    Without objection, there will be placed in the record a 
large group of letters relevant to the issue, and I want to 
remind everybody on the Committee that under Committee 
practices, that as with the proceeding on Chief Justice 
Roberts, all questions must be submitted within 24 hours of the 
close of the hearing, which will be a little later today, 
perhaps even shortly.
    Senator Hatch?
    Senator Hatch. Let me just greet all of you and thank you 
for being here. Dr. Gray, I have tremendous respect for you. 
You have led a lot of fights in this country under very, very 
trying circumstances. Having been born on the other side of the 
street myself, I understand a little bit about how tough that 
might be from time to time, but I am sure not nearly as much as 
you understand it.
    Mr. Gray. Thank you, Senator.
    Senator Hatch. Ms. Michelman, it is always nice to see you.
    Ms. Michelman. Good to see you too.
    Senator Hatch. As you know, I have respect for other points 
of view as well.
    Mr. Sullivan, nice to get acquainted with you. Ms. Frost, 
with you.
    Mr. Flym, I have to say I disagree with you, as do almost 
every ethics expert I know, including the American Bar 
Association, but I appreciate your advocacy for your client. 
That is always appreciated by me, and respect you for it.
    I just wanted to greet all of you and let you know that we 
appreciate you coming.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Sessions?
    Senator Sessions. Mr. Gray, it is a delight to have you 
here. You are certainly one of Alabama's most distinguished 
citizens.
    Mr. Chairman, Mr. Gray just completed tenure as President 
of the Alabama Bar Association and traveled the State 
extensively and talked on these subjects, and I think, reminded 
people a lot about just what our situation has been and how far 
we have come and things that we still need to do. So, Mr. Gray 
is an extraordinary leader, capable of holding any high office 
in this country, and it is a pleasure to get to know him.
    I have read with great interest his book, ``Bus Ride to 
Justice.'' He talks about that first bus boycott in the '50s 
with Rosa Parks and Martin Luther King, and the tension, and 
the work, and the enthusiasm, and the courage that was shown at 
that time. It is really remarkable, and it is important for us 
to remember it. We have a lot of things to do, but, Mr. Gray, I 
thank you for your service.
    Mr. Gray. Thank you very much, Senator, and I even talk 
about the judgeship which was not to be in that book too.
    Senator Sessions. Well, we have both been there, have we 
not?
    [Laughter.]
    Mr. Gray. Yes, sir.
    Senator Sessions. We may have a little more jaundiced eye 
than some around here about this process.
    Mr. Gray. That is correct.
    Senator Sessions. When you came out of college, I notice in 
your book you mention several times you had a commitment in the 
'50s, ``destroying everything segregated I could find.''
    Mr. Gray. That was the motivating factor, Senator, as to 
why I became a lawyer, and I wish this nominee had that kind of 
commitment. If so, I would not feel uncomfortable and would not 
be troubled.
    Senator Sessions. But Gomillion v. Lightfoot was--I mean 
you had the Vivian Malone case at the University of Alabama, 
you were involved in that, the syphilis study at Tuskegee, the 
Gomillion v. Lightfoot, and of course, Rosa Parks case. But on 
Gomillion you made an argument that I think at first appeared 
not to be. I mean, Colegrove v. Green was a Supreme Court case 
that seemed to stand squarely in your way. In fact, you lost it 
in earlier rounds of the Court, but you had a vision that this 
gerrymander of that city was directly driven to deny people the 
right to vote, and that was your idea and your concept. Would 
you just share that?
    Mr. Gray. Yes, sir, that is exactly the thing, and I 
illustrated it by having a map drawn to scale of the old city 
limits and the new city limits, showing where the blacks were 
excluded, and go all the way in to include whites. And I think 
that case, no question, set the precedent for these other 
cases. If Reynolds v. Sims had been first, I do not think we 
would have won, but with Gomillion, which shows an extreme 
situation, but the purpose of the State in all of these cases 
was the same, and that was to avoid minorities from voting.
    I am glad we have passed that, but we still have, even in 
Alabama, major cases. The higher education case, the Knight 
case is still pending. We still have cases--and Lee v. Macon 
that I filed in '63, elementary school cases, where there are 
no degrees in, and now my sons are handling those cases, and we 
still have a teacher testing case in Alabama that is still 
pending. So we need to have a strong Supreme Court if we are 
going to continue to make progress.
    Senator Sessions. I would point out a couple of things. 
First, it took a reversal of precedent to make this happen, so 
sometimes bad precedent ought not to be kept on the books. We 
have been talking about precedent and stare decisis an awful 
lot here, and I wanted to mention that.
    I would just say, Mr. Gray, I think, as Judge Alito has 
explained it, his father was a nonpartisan clerk for the New 
Jersey legislature. They were trying to redistrict the 
legislature, and the court was ignoring classical, geographical 
or political boundaries, counties and that kind of thing, and 
that is where his frustration came, not with the concept, which 
he has affirmed clearly here, of one man/one vote.
    Mr. Gray. I want to thank you, Senator, and I want to 
publicly thank you for doing what you have done in helping the 
Tuskegee Human and Civil Rights Multicultural Center, which is 
designed to preserve some of this rich history in that part of 
the State, and I want to thank you for it.
    Senator Sessions. And we can thank Chairman Specter for 
helping us some on that.
    Mr. Gray. Thank you very much.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Specter. You were not going to conclude, Senator 
Sessions, without saying why you can thank Senator Specter.
    Senator Sessions. For helping us with the Tuskegee Human 
and Civil Rights Center. Thank you, sir.
    [Laughter.]
    Chairman Specter. Senator Coburn.
    Senator Sessions. You have always been accommodating.
    Senator Coburn. Senator, I will defer. There is obviously a 
very distinguished panel before us, each a leader in their own 
way, respected for their advocacy and their heart, and their 
desire to make our country better. The fact that you would come 
here today and put forward your views lends great credibility 
to the process, and places more responsibility on us to hear 
every point of view as we make a consideration on this nominee, 
and I thank you for coming.
    Thank you.
    Chairman Specter. Thank you very much, Senator Coburn.
    Thank you, Mr. Gray and Ms. Michelman, Professor Sullivan, 
Professor Frost, Professor Flym. We will take a 5-minute recess 
while the next and final panel comes forward.
    [Recess at 11:57 a.m. to 12:04 p.m.]
    Chairman Specter. The Committee will resume.
    The Committee will resume. Let's have order in the hearing 
room, please.
    Our first panelist on the sixth and final panel is Kate 
Pringle from the Litigation Department of Friedman, Kaplan, 
Seiler and Adelman, a graduate with honors from American 
University in 1990, cum laude from Georgetown University Law 
Center, editor-in-chief of the Law Journal there. Ms. Pringle 
was one of Judge Alito's clerks in the 1993-94 term.
    Thank you for joining us, Ms. Pringle, and the floor is 
yours for 5 minutes.

  STATEMENT OF KATHERINE L. PRINGLE, PARTNER, FRIEDMAN KAPLAN 
           SEILER & ADELMAN, LLP, NEW YORK, NEW YORK

    Ms. Pringle. Mr. Chairman and honorable members of the 
Committee, thank you very much. I greatly appreciate the 
opportunity to share my experiences with and personal 
observations of Judge Alito, for whom I did clerk in 1993 to 
1994 and who has served as my mentor since that time.
    First, let me explain briefly the job of a law clerk. It is 
the law clerk's job to provide legal research to the judge, to 
assist him in his analysis, and generally to act as a sounding 
board in the difficult process of deciding cases. As Judge 
Garth indicated yesterday, it is an unusually close 
professional relationship.
    I began my clerkship for Judge Alito upon my graduate from 
Georgetown Law School. I was then--as I am now--a committed and 
active Democrat. I had heard from some of my professors that 
Judge Alito had a reputation as a conservative, and I, 
therefore, expected his to be an ideologically charged 
chambers, in which I would battle to defend my liberal ideals 
against his conservative ones.
    But what I found was something very different than what I 
had expected. I learned in my year with Judge Alito that his 
approach to judging is not about personal ideology or ambition, 
but about hard work and devotion to law and justice.
    I would like to share with you several things that I 
learned about Judge Alito during the time I which I worked with 
him.
    First, I learned that Judge Alito reaches his decisions by 
working through cases from the bottom up, not the top down, to 
use a phrase that we heard from Judge Roberts. Judge Alito 
taught me to try to ignore my personal predispositions and to 
come to each case with an open mind. He taught me to work 
carefully through an analysis of the facts of the case and the 
legal precedents, and to try to find the resolution that flowed 
from that analysis.
    Judge Alito consistently applied this bottom-up approach. 
He approached every case without a personal agenda and with a 
commitment to careful and methodical review. His approach was 
demanding. He read and reread the record of each case, the 
decisions cited, and the relevant decisions that the parties 
had failed to cite. I remember him building a model from string 
and paper to try to figure out the events of one case, and I 
remember him physically acting out the events of another, all 
in an attempt to truly understand the facts. He worked hard on 
every case, large or small, and he sought to find the result 
that flowed from the facts and the law, divorced from any 
personal bias or interest.
    Second, I learned that Judge Alito is interested in, and 
respectful of, differing points of view. The law clerks with 
whom I worked spanned the ideological spectrum. I later learned 
that this is typical and that Judge Alito selects law clerks 
with widely varying backgrounds political outlooks, and 
personal views. This led to lively debates amongst the law 
clerks. In my experience, Judge Alito was never dismissive of 
any point of view. He encouraged our input, challenged each of 
us to substantiate our views, and listened carefully to the 
points that each of us made.
    Judge Alito treated advocates before him with that same 
respect. He asked probing questions, which he refused to let 
the advocates sidestep. But he was never caustic or rude, and 
he always appreciated the honest efforts of an advocate.
    Judge Alito was similarly respectful of the differing 
opinions of his fellow judges on the Third Circuit. He sought 
to forge consensus where consensus could be reached. When he 
dissented from another judge's views, he did so in a respectful 
and intellectually honest way. The appreciation that all of 
Judge Alito's colleagues on the bench have for him is reflected 
in the outpouring of support at these hearings from other 
judges on the Third Circuit.
    Finally, I learned that Judge Alito approaches his job with 
personal humility and a great respect for the institution of 
the courts. What I saw was a person cognizant of the limited 
role assigned to him by the Constitution to interpret the law 
as established by written law and prior precedent. Judge Alito 
did not, in my experience, ever treat a case as a platform for 
a personal agenda or ambition. Rather, his decisions are 
limited to the issue at hand. They demonstrate an effort to 
interpret honestly and faithfully apply the law to the parties 
that seek justice before him.
    Apart from his judicial approach, Judge Alito was a 
thoughtful and generous boss. He took the time to get to know 
his clerks and to learn about us and our families. He had none 
of the personal arrogance that sometimes attends power.
    It was my great privilege to work with and learn from Judge 
Alito at the outset of my career. Many of Judge Alito's law 
clerks, both men and women, both Republicans and Democrats, 
have traveled to Washington to be here for these hearings. We 
are all here because we feel strongly about Judge Alito's 
talent and character. We all believe that he will be an 
outstanding Justice of the U.S. Supreme Court.
    Thank you very much.
    [The prepared statement of Ms. Pringle appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Ms. Pringle.
    Our next witness is Congressman Charles Gonzalez. 
Representative Gonzalez was first elected to the House in 1998. 
He is a member of the House Energy and Commerce Committee. He 
served as a Texas Regional Whip for the Democratic Caucus and 
as Chair of the Hispanic Caucus Civil Rights Task Force. 
Congressman Gonzalez has been Chair of the House Judiciary 
Initiative for the Congressional Hispanic Caucus.
    There is a little extra time left over from the time given 
to the judges yesterday, so we are going to start the clock at 
8 minutes for each of the witnesses invited by the Democrats, 
and you have 8 minutes, Representative Gonzalez.

  STATEMENT OF HON. CHARLES A. GONZALEZ, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Representative Gonzalez. Well, thank you very much, 
Chairman Specter, and, of course, Senator Kennedy. And today I 
am representing the Congressional Hispanic Caucus in my 
capacity as the Chairman of the Hispanic Judiciary Initiative 
and Task Force on Civil Rights.
    The Hispanic Caucus was obviously disappointed that the 
President did not nominate a highly qualified Hispanic to the 
bench. We did not expect a Hispanic to be nominated for the 
sake of being a Hispanic. We did expect the administration to 
have recognized the need for our Nation's highest Court to 
reflect the Nation's diversity in all its forms--thought, 
experience, and expression.
    The Hispanic Caucus's policy with respect to the evaluation 
of nominees for judicial vacancies requires an extensive 
examination of each nominee in order to assess the following: 
his or her commitment to equal justice and right of access to 
the courts, his or her efforts in support for Congress's 
constitutional authority to pass civil rights legislation, and 
his or her efforts in support of protecting employment, 
immigrant, and voting rights, as well as educational and 
political access for all Americans.
    Our process is also assisted by the excellent work of many 
legal and advocacy organizations, and I would like to 
especially thank the Mexican American Legal Defense and 
Educational Fund for their efforts to assist us in our work.
    Allow me to highlight a few areas that cause the Hispanic 
Caucus great concern:
    Discrimination in jury selection, Pemberthy v. Beyer. Judge 
Alito's ruling would allow the use of language to serve as a 
pretext to discriminate on the basis of ethnicity.
    Voting Rights Act violation, Jenkins v. Manning. Judge 
Alito appears to have joined the majority opinion in that case. 
It dealt with at-large school district voting systems. Judge 
Alito, along with the majority--and we are assuming that that 
is what he signed off on--found no violation of the Voting 
Rights Act even though historically only 3 out of 10 black 
candidates over a 10-year period were elected.
    Constitutional rights of noncitizens. His 1986 memo to FBI 
Director William Webster, in which Judge Alito appears to 
ignore precedent, cited old law to accommodate denying 
constitutional protections to immigrants.
    Commerce Clause application. You all have discussed the 
United States v. Rybar case. Judge Alito's reasoning would 
seriously hamper Congress from passing laws to address civil 
rights abuses.
    Equal employment opportunity, Bray v. Marriott Hotels, 
which you have also touched on. Judge Alito would impose a 
standard that deviates from accepted legal norms, making it 
extremely difficult to prove discrimination based on race or 
gender.
    The Hispanic Caucus wishes to acknowledge the indispensable 
role the U.S. Senate plays in determining the composition of 
the Supreme Court. We know that the nominee will be someone of 
President Bush's choosing. However, this does not necessarily 
mean that the Supreme Court should be a mere extension of the 
executive branch. The Nation's Founding Fathers did not intend 
it to be and, therefore, subjected the President's nominees to 
Senate approval by way of advice and consent.
    There may be a good-faith disagreement as to the 
appropriate parameters limiting the types of questions asked of 
the nominee by this Committee, but no one would argue that 
questions establishing a nominee's judicial philosophy are 
universally contemplated under advice and consent. The Hispanic 
Caucus is aware that political, social, and economic forces in 
any society play to the advantage of the employer over the 
employee, the able-bodied over the disabled, the citizen over 
the immigrant, the majority over the minority, the wealthy over 
the poor, and the state over the individual. But in this 
country, it has been the third branch of Government, the 
judicial branch, which has countered the tendency to abuse this 
innate ``advantage'' by acting as the great equalizer 
regardless of one's status.
    For the Hispanic Caucus, the desired judicial philosophy is 
a simple one and is best expressed in the following quotation: 
``There is so much to be done that demands the full capacities 
of our hearts and souls, but, truly, where shall we begin? 
Perhaps I will begin with you? Keep in mind...that if your life 
is without value, so is mine. If the law does not protect you, 
it will not, in the end, protect me.''
    The Hispanic Caucus does not believe that Judge Alito's 
writings and decisions embrace this simple but profound 
judicial sentiment. We do not argue that he possesses a 
brilliant legal mind and has had an accomplished career. And I 
will state that we do not believe that he is a racist or a 
bigot. But this is not the controlling issue. The issue is what 
judicial philosophy guides and motivates such a gifted and 
talented person in his decisionmaking process. In the end this 
should not be a question of party affiliation or conservative 
versus liberal beliefs. Any Republican, any Democrat, any 
conservative, or any liberal should share a judicial compass 
that points them to the inevitable truth that indeed ``if the 
law does not protect you'' then it protects no one.
    I will be recommending to the Congressional Hispanic Caucus 
that it oppose this nomination. Thank you very much.
    [The prepared statement of Representative Gonzalez appears 
as a submission for the record.]
    Chairman Specter. Thank you, Representative Gonzalez.
    We now turn to another Member of the House of 
Representatives. Representative Debbie Wasserman Schultz serves 
the 20th Congressional District of Florida. Her resume notes--
and since it is on her resume, I will read it--she is the first 
Jewish Congresswoman ever elected from Florida to the House. 
She serves on the Financial Services Committee and the 
Committee on the Judiciary.
    Thank you for joining us, Congresswoman Wasserman Schultz, 
and you have 8 minutes.

STATEMENT OF HON. DEBBIE WASSERMAN SCHULTZ, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Representative Wasserman Schultz. Thank you very much. Good 
afternoon, Mr. Chairman, Senators. I am honored to speak to you 
as you consider the nomination of an individual to a lifetime 
position on the Supreme Court. And I come before you today in 
several capacities.
    First, I am here as a Member of Congress, proudly 
representing the people of South Florida.
    Second, I am here as a member of a generation that 
benefited from long-fought Supreme Court battles, resulting in 
equal rights for all Americans, which is a fundamental 
principle of our democracy.
    Third, I am here in my most rewarding role: as the mother 
of three young children who will come of age in an America 
guided by many of the decisions that this Court will make.
    I cannot imagine my children's future in an America without 
privacy rights and the civil rights and liberties that all 
Americans enjoy today.
    These are the reasons that I am here today, to express the 
concerns about the rights and freedoms that, based on his 
record, I believe would be threatened by Judge Alito's 
elevation to the Supreme Court. And, therefore, I urge you to 
reject his nomination.
    By now we are all very familiar with Judge Alito's writings 
and views on reproductive rights, each one indicating a 
different nuance of his opinion on a woman's right to choose. 
But really here is the bottom line: You are considering a 
nominee who wrote a memo urging the courts to restrict a 
woman's right to make her own reproductive choices. Judge Alito 
ruled, actually ruled in support of spousal notification. In 
essence, he is comfortable putting a woman's constitutional 
right to make decisions about her body in the hands of her 
spouse as soon as she signs her marriage license.
    This blatant disregard for individual rights is why our 
Founding Fathers designed a meaningful system of checks and 
balances. And once any branch of Government surrenders itself 
to the others, that authority is difficult to regain.
    Now, I come from a State where Executive power and 
Government intrusion on privacy rights has been repeatedly 
abused. Florida's Governor pushed the State legislature to 
grant him authority to overturn a judicial decision in the 
Terry Schiavo case, and Congress inserted itself into that 
family's private tragedy.
    Ultimately, the case could have reached the Supreme Court. 
Now, let's think about this for a minute. Can America risk 
Justice Alito, a Supreme Court Justice Alito, casting the 
deciding vote to drag us through another tragic saga similar to 
the Terry Schiavo case? I don't think America can endure 
another Terry Schiavo case.
    In another disturbing privacy matter, Judge Alito's lack of 
judgment, I believe, was appalling. In this case, a police 
officer strip-searched a 10-year-old girl and her mother. They 
were not named in the search warrant; they were simply on the 
premises.
    According to the Boston Globe, the 10-year-old girl's 
lawyer later reported Judge Alito as saying, ``Why do you keep 
bringing up the fact that this case involves the strip-search 
of a 10-year-old child?''
    Why? Because this was not a simple case of whether or not 
the officers exceeded their investigative authority. It 
escalated to an unconscionable level.
    Judge Alito was the only member of a three-judge panel who 
found the strip-search of the 10-year-old acceptable under his 
interpretation of the law.
    Now, I am horrified that someone could strip-search my 
children because of selective interpretation of a warrant.
    And as you consider this nomination, I ask you to reflect: 
Would you be comfortable if your own child was the subject of a 
strip-search? Based on his record, would you be comfortable if 
your little girl was the plaintiff with Judge Alito as the 
deciding vote?
    The standard must be higher when cases involve the most 
vulnerable members of our society--our children. When 
enforcement authorities lapse, our courts must not.
    Now, despite his questionable affiliations with 
discriminatory organizations such as the Concerned Alumni of 
Princeton, there is no question, as has been acknowledged by 
many others, that Judge Alito had impressive education 
credentials and he had led a distinguished career. But 
credentials alone do not qualify an individual for elevation to 
the Supreme Court.
    Senators, as you contemplate the profound influence Justice 
O'Connor's successor will have on the lives, liberties, and 
legal protections of Americans for decades to come, I ask you 
to consider that Judge Alito is a nominee who will replace one 
of only two women Justices. This really reflects a missed 
opportunity to retain or even expand, as my colleague referred 
to, the existing diversity of the Court.
    Now, I distinctly remember the feeling that I had in 1981, 
Mr. Chairman, when I was 14 years old and I first heard that a 
woman would serve on the Supreme Court. It proved to me what my 
parents had told me my whole life: that in America, little 
girls really can grow up and be anything that they want to be. 
That is an amazing thing about this country, and it is one that 
we really need to carefully think about, especially with the 
selection and elevation of a Supreme Court nominee. The message 
that we send to little girls in America really needs to be a 
strong one when it comes to nominations like this one.
    The Supreme Court, Senators, is the final arbiter in our 
Nation, and today you stand as the guardians to its membership. 
From Marbury v. Madison to Brown v. Board of Education, the 
fingerprints of the U.S. Senate have subtly steered the highest 
Court in this Nation time and again. And long after we have 
completed our public service here, the decisions made by the 
Supreme Court will continue to impact all Americans, and 
history will really judge your decision.
    And I just want to close by just asking you to think about 
the role of the legislative branch. I have served as a 
legislator in the State legislature or in the Congress for the 
last 13 years, and I think we should zealously guard our 
legislative authority. We are, after all, the only directly 
elected branch of Government. And I think we need to carefully 
think about how this nominee thinks about our role in the 
governmental process. I think many of his views have 
demonstrated that given his belief in a unitary Executive or, 
at the very least, the strength of the Executive, we should 
carefully think about how we believe our role as legislators 
would be compromised if he was elevated to the Supreme Court.
    Thank you very much for this opportunity.
    [The prepared statement of Representative Wasserman Schultz 
appears as a submission for the record.]
    Chairman Specter. Thank you very much, Congresswoman 
Wasserman Schultz.
    Our next witness is Mr. Jack White, associate in the San 
Francisco law firm of Kirkland and Ellis, graduated magna cum 
laude from Pepperdine Law School, editor in chief of the Law 
Review there; bachelor's degree from the United States Military 
Academy at West Point, served as an active duty officer in the 
Army, and continues to serve as a captain in the Reserve. He 
is, according to his resume, a dedicated member of the ACLU and 
NAACP. He was one of Judge Alito's law clerks in the 2003-04 
term.
    Thank you for coming from San Francisco, Mr. White, and the 
floor is yours, but only for 5 minutes.

 STATEMENT OF JACK WHITE, ASSOCIATE, KIRKLAND AND ELLIS, LLP, 
                   SAN FRANCISCO, CALIFORNIA

    Mr. White. Thank you, Mr. Chairman, Senator Kennedy. I 
appreciate the opportunity to testify here today.
    In order to provide some context for my comments, I would 
like to share some personal information about myself. I am the 
son of African-American parents born in the segregated South. 
Their respect for the recognition of civil liberties that 
enabled them to succeed and raise principled children 
inculcated the same respect in me. This respect is what led me 
to become a member of the NAACP and the ACLU. The same respect 
for our freedoms as Americans encouraged me to serve our 
country after graduating from West Point on active duty in the 
United States Army.
    Now, as I clerked for Judge Alito, I saw a deep sense of 
duty, diligence, humanity, and respect for his role as a 
Federal appellate judge. Judge Alito required searching 
analysis of the factual and procedural background of every 
case. He required thorough evaluation of the applicable law in 
every case. He uniformly applied the relevant law to the 
specific facts of every case. Judge Alito recognized that every 
case was the most important case to the parties and attorneys 
with something at stake. There was no wavering from this 
consistent, predictable method of his judicial decisionmaking 
process. Working for Judge Alito, I saw in him an abiding 
loyalty to a fair judicial process as opposed to an enslaved 
inclination toward a political or personal ideology.
    What I found most intriguing and particularly exceptional 
about Judge Alito's judicial decisionmaking process was the 
conspicuous absence of personal predilections. I never 
witnessed an occasion when personal or ideological beliefs 
motivated a specific outcome in a case. Indeed, after a year of 
working closely with the judge on cases concerning a wide 
variety of legal issues, I left New Jersey without knowing 
Judge Alito's personal beliefs on any of them. Now, the reason 
I didn't know his personal beliefs on all of these issues was 
that the jurist's ideology was never an issue in a case that 
Judge Alito heard. Indeed, it is never an issue in any case. My 
fellow former law clerks have uniformly agreed, and we have 
communicated this notion to the Committee in a letter that we 
have provided.
    Although Judge Alito's sense of duty, diligence, and 
commitment to the decisionmaking process have inspired the 
collective support of his former law clerks, there is an 
additional characteristic that also heavily impressed me. On a 
daily basis, Judge Alito dealt with a wide variety of 
individuals, including law clerks, fellow judges, experienced 
attorneys, inexperienced attorneys, court staff, law students, 
and individuals throughout the community. Without fail, I saw 
Judge Alito treat everyone, every individual, with dignity and 
respect. In fact, on one occasion, my parents went to New 
Jersey to visit their son. Judge Alito suggested that I bring 
them to his chambers. Now, because oral arguments were rapidly 
approaching, I thought that the judge would shake their hand 
and we would quickly be on our way. Over an hour later, my 
parents left his office understanding my extreme regard for 
this jurist. At the end of the day, my parents left believing 
that meeting them was the highlight of Judge Alito's day. 
Perhaps it was.
    Working for Judge Alito provided me with the opportunity to 
witness American justice at work. I saw a jurist with an 
abiding respect for the strength, purpose, and authority of our 
Constitution, and a particular regard for the limited role of 
the judiciary envisioned by the Framers of our Constitution. 
From my experience, I will feel confident with Judge Alito 
serving as an Associate Justice on the Supreme Court, 
interpreting las that affect me.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. White appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. White.
    We turn now to Mr. Reginald Turner, president of the 
National Bar Association, partner in the Detroit law firm of 
Clark, Hill, practiced labor law and employment law and 
governmental relations for over 15 years, served as president 
of the Michigan State Bar Association, was a White House 
fellow, a graduate of Wayne University, where he got his 
bachelor's degree, and a law degree from the University of 
Michigan Law School.
    We welcome you, Mr. Turner, and you have 8 minutes to 
testify.

 STATEMENT OF REGINALD M. TURNER, JR., PRESIDENT, NATIONAL BAR 
                 ASSOCIATION, WASHINGTON, D.C.

    Mr. Turner. Thank you very much, Mr. Chairman and Senators. 
It is an extraordinary honor for me to be here today to testify 
on behalf of the National Bar Association.
    Our association was founded in 1925 at a difficult time in 
our Nation's history when lawyers of color could not belong to 
the American Bar Association or many of the State bars and 
other voluntary bar associations around the country. Today, we 
represent a network of over 20,000 lawyers with 80 affiliates 
around the world.
    The National Bar has established a rigorous process for 
evaluating judicial nominees. We take a position on a 
nomination only after an exhaustive evaluation of the nominee's 
record.
    Judge Alito was evaluated consistent with this process. The 
results of our review are troubling to us, and we cannot 
support this nomination. We don't take this position lightly. 
With President Bush's nominations that exceed 200 in number, we 
have only taken positions either without support for or in 
opposition to three of President Bush's nominees.
    We understand that Judge Alito has solid educational and 
professional credentials, but these credentials alone are not 
sufficient, in our view, for a lawyer or judge to be an 
Associate Justice of the U.S. Supreme Court. We strongly 
believe that a nominee to our Nation's highest Court must share 
an unequivocal commitment to the basic rights and liberties 
afforded to all Americans under the United States Constitution.
    In this country, race and the treatment of racial issues by 
the judiciary profoundly affect every aspect of American life 
and play critical roles in the formulation of social, economic, 
and political agendas. Accordingly, the National Bar 
Association has adopted a standard to determine whether a 
Federal judicial nominee will interpret the Constitution and 
laws to advance our great Nation's slow but steady progress 
toward equality of opportunity.
    Unfortunately, our legal system is not as colorblind as it 
aspires to be. In Grutter v. Bollinger, Supreme Court Justice 
Sandra Day O'Connor acknowledged that. She said, and I quote, 
``...in a society, like our own...race unfortunately still 
matters.'' Thus, judicial nominees should be able to articulate 
support for constitutional principles, statutes, and legal 
doctrines that serve to extend the blessings of liberty to all 
Americans.
    In sharp contrast to Justice O'Connor's philosophy, Judge 
Alito's work as a lawyer and as a judge reveal a hostility to 
these basic civil rights and civil liberties that makes his 
nomination particularly troublesome to the National Bar 
Association. His philosophy as a lawyer is revealed in his 1985 
application for the position of Deputy Assistant Attorney 
General. Among other things in that application, then-Attorney 
Alito expressed disagreement with well-established Supreme 
Court precedents that relate to fundamental rights. Attorney 
Alito indicated at the time that he was attracted to 
constitutional law because of his ``disagreement with Warren 
Court decisions,'' including a series of landmark decisions 
that established the constitutional principle of one person/one 
vote. Under this fundamental doctrine, every citizen of the 
United States has the right to an equally effective vote, 
rather than the mere right to cast a ballot.
    We heard Fred Gray testify a few moments ago very 
eloquently about the impact of the Warren Court decisions that 
upheld the provision of one person/one vote. We heard of the 
tremendous impact on the inclusion in our Nation's cadre of 
elected officials of people of color for the very first time in 
many States in the Southern part of this United States and in 
States around the country. We have heard of the tremendous 
progress made as a result of those decisions, progress which 
would not exist today if Judge Alito's views on this issue had 
carried the day.
    In addition, Judge Alito expressed opposition to programs 
designed to increase diversity in education and employment. He 
mischaracterized these programs as ``quota systems'' when, in 
fact, many of these programs were benign efforts on the part of 
educational institutions and employers to promote opportunities 
for those who traditionally had been disenfranchised from the 
mainstream of American society.
    At the same time, then-attorney Alito proudly listed his 
membership in Concerned Alumni of Princeton, a group that 
advocated quotas for children of alumni of Princeton in an 
effort to reduce the admissions of women and minorities to that 
prestigious university.
    Although these writings are 20 years old, they are relevant 
today because the views espoused by attorney Alito are 
reflected in the judicial record of Judge Alito. His judicial 
opinions evidence an agenda to reverse hard-fought civil rights 
gains and to limit improperly the authority and power of 
Congress, particularly in the area of providing remedies to 
unlawful discrimination and protecting the health, welfare, and 
safety of the American people.
    Just to summarize some of these points, Judge Alito has 
been the most frequent dissenter among the Third Circuit Court 
of Appeals judges since his appointment in 1990. According to 
estimates by University of Chicago law professor Cass Sunstein, 
more than 90 percent of Judge Alito's dissents take positions 
more conservative than those of his colleagues. He rejected the 
views of a majority of his court, as well as the rulings of six 
other Federal appellate courts, when he reasoned that the 
Federal law limiting the possession and transfer of machine 
guns was unconstitutional.
    In civil rights cases where the Third Circuit was divided, 
Judge Alito opposed civil rights protections more than any of 
his colleagues. Indeed, he has advocated positions detrimental 
to civil rights 85 percent of the time and has filed solo 
dissents in more than a third of these cases.
    In one civil rights case, Sheridan v. Dupont, all 10 of 
Judge Alito's colleagues--appointed by Republicans and 
Democrats alike--agreed that a sex discrimination victim's case 
was properly submitted to the jury, contrary to Judge Alito's 
sole dissent.
    In Doe v. Groody, Judge Alito's dissent condoned the strip-
search of a 10-year-old girl and her mother, even though they 
were not named in the warrant that authorized the search. The 
majority opinion by then-Judge Michael Chertoff criticized 
Judge Alito's view as threatening to turn the search warrant 
requirement into ``little more than the cliche `rubber stamp.' 
''
    In his dissent in Bray v. Marriott, Judge Alito argued for 
imposing an evidentiary burden on victims of discrimination 
that, according to the majority, would have eviscerated legal 
protections under Title VII of the Civil Rights Act. In 
particular, the majority contended that Judge Alito's position 
would protect employers from liability even in situations where 
employment discrimination was the result of conscious racial 
bias.
    In conclusion, on the basis of our thorough review of Judge 
Alito's record, the National Bar Association cannot support the 
nomination of Judge Alito to the U.S. Supreme Court. For 
several decades, Judge Alito has championed limitations on 
civil rights and voting, resulting in curtailed educational and 
employment opportunities for people of color and women. If his 
views had prevailed in many cases, our Nation would not be far 
beyond the regrettable days when opportunities for Americans, 
like retiring Justice Sandra Day O'Connor and the late Justice 
Thurgood Marshall, were truncated on the basis of gender and 
race. Now is not the time for retrenchment. Now is the time for 
America to step forward into the 21st century and open the 
doors of mainstream society for the benefit and protection of 
all Americans.
    Again, thank you very much for the opportunity to testify.
    [The prepared statement of Mr. Turner appears as a 
submission for the record.]
    Chairman Specter. Thank you, Mr. Turner.
    Our final witness on this panel--and our final witness--is 
Mr. Theodore Shaw, Director-Counsel and President of the NAACP 
Legal Defense and Educational Fund here in Washington, D.C.; a 
graduate of Wesleyan University with honors and from Columbia 
University Law School, where he was a Charles Evans Hughes 
Fellow. He has also served in the Office of Civil Rights in the 
Department of Justice.
    Welcome, Mr. Shaw, and you have some of that extra time. 
The clock is set at 8 minutes.

STATEMENT OF THEODORE M. SHAW, DIRECTOR-COUNSEL AND PRESIDENT, 
 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NEW 
                              YORK

    Mr. Shaw. Thank you, Mr. Chairman. In his absence, I would 
like to thank Senator Leahy and, of course, Senator Kennedy and 
the other Senators who are members of the Judiciary Committee.
    Let me make one small clarification. While we have a 
Washington, D.C., office, the Legal Defense Fund headquarters 
are in New York, and I am a New Yorker.
    I am acutely aware that I am the last witness on the last 
panel of these hearings, so I will come right to the point. You 
have my written testimony, and I would like to request that the 
NAACP Legal Defense and Educational Fund, Inc.'s report on the 
nomination of Judge Alito to the position of Associate Justice 
of the Supreme Court be entered into the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Mr. Shaw. Thank you, Mr. Chairman.
    We at the Legal Defense Fund do not relish opposition to a 
nominee to the Supreme Court or, for that matter, any court, 
and our ordinary posture is to take no position on nominees to 
the Federal courts. So I am not here with any pleasure.
    I am not here to challenge Judge Alito's intellect or his 
integrity. I am not here to engage in the politics of personal 
demonization, which takes all of us on a low road that leads us 
to a place where I think we are all diminished.
    Many fine people have testified on both sides of this 
nomination, people whom I know and respect and admire, and I 
think it is very important to understand that people of good 
will may differ on this nomination and the substantive issues 
that lead them to take positions on this nomination.
    I, with all due respect, hasten to add that there is 
nothing remarkable about colleagues on the Federal bench and 
former law clerks taking positions in support of this nominee. 
Collegiality is a very, very important commodity on the bench, 
and, of course, I think it is quite a heady thing to know 
someone who is being nominated to the Supreme Court. I don't 
suggest that that is why they support him. I am saying that 
they know him personally. But this is not about personality and 
it is not personal.
    We are compelled to testify in opposition to the nomination 
of Judge Alito to the U.S. Supreme Court based on a standard 
that the judge himself articulated. I think it is the correct 
standard. He said, ``If you want to know what kind of Justice I 
would be on the Supreme Court, look at my record on the court 
of appeals.''
    That is exactly what we have done, and it is only on that 
basis that we have arrived at the position that we have taken.
    I want to encourage all of the members of the Judiciary 
Committee to read our report in full. Our review of his record 
has convinced us that his confirmation to the Supreme Court 
would cause a substantial shift in the Court's civil rights 
jurisprudence in a manner that would make it significantly more 
difficult for civil rights plaintiffs to prevail.
    In his 15 years on the bench, Judge Alito has a record in 
civil rights that is extremely troubling to us. For example, in 
all that time he has voted for employment discrimination 
plaintiffs who are African-Americans on the merits of their 
cases twice. Some might say that that is a reflection of the 
strength of the cases that are coming before the court these 
days. We believe it is not, and without going into the detail 
that other people have gone into already--it would be 
redundant--I point to, for example, the Bray case--and I think 
it is very instructive--where Judge Alito took a position that 
appeared to us, at least, to be gratuitous.
    The issue there was whether the jury would get an 
employment discrimination, whether it would go to the jury. And 
the reason proffered by the employer for the adverse employment 
decision claimed to be discriminatory, was proven and shown, 
demonstrated to be pretextual under the law as the majority saw 
it, and I think logic supports it. An inference can be drawn by 
a jury that the motivations were in fact discriminatory once 
the pretext has been exposed.
    Judge Alito, it seemed to us, worked hard to arrive at a 
conclusion that that case should not even go to the jury, and 
it demonstrates a cramped and narrow reading of Title VII and 
civil rights laws, which we believe is symptomatic of his views 
on civil rights issues in general.
    I want to be very clear, because one of the members of this 
Committee raised the issue of whether anyone was alleging that 
Judge Alito harbors a bias. I want to be very clear on behalf 
of the Legal Defense Fund, that we are not saying that he 
harbors racial bias or that he is a racist. That would, as I 
indicated before, diminish all of us. Whatever his reason for 
ruling the way he does in cases, the record is consistently 
clear, as my colleague and friend, Reginald Turner, has 
indicated, and as our report has indicated. It is very 
difficult for African-American plaintiffs in civil rights cases 
to prevail.
    Now, it is not limited to African-American plaintiffs, but 
those are the individuals whom we represent at the Legal 
Defense Fund. Certainly, his view of interpretation of civil 
rights laws extends to gender discrimination, some of the cases 
which we have highlighted in our report, and it extends to 
other areas with respect to individual rights.
    Now, we believe that his views with respect to 
reinforcement, which have been here, are deeply troubling. We 
believe in the area of criminal justice his views are 
troubling, but I particularly want to point to an area about 
which we have a deep concern. The analogy with baseball has 
been very popular--and I want to end on this point--before this 
Committee and in these nominations. And Judge Alito, at one 
time, used to like to say about affirmative action that Henry 
Aaron would not be regarded as the all-time home run king and 
hero that he is if the fences had been moved in whenever he 
came to bat. I think that reflects a fundamental 
misunderstanding about affirmative action. The issue, with 
respect to civil rights and affirmative action advocates is not 
about asking that the fences be moved in, it is about asking 
about an opportunity to take the field, to stand at the plate, 
it is about an opportunity to play the game. And that is, I 
think, a fundamental difference in how one views the world with 
respect to issues of race these days.
    I would like to conclude by saying that no one more than 
those of us at the Legal Defense Fund in this Nation would be 
happier if in fact our views are misplaced. And I am told, or 
we are told, we read that he will certainly be confirmed. We 
think that is before the Senate Judiciary Committee. But no one 
would be happier if our views are misplaced. We hope that that 
is right if he is confirmed. But we cannot take a position 
based upon hope. We have taken a position based upon his 
record, and we reluctantly and regretfully conclude that we 
must oppose Judge Alito's nomination to the United States 
Supreme Court.
    Thank you.
    [The prepared statement of Mr. Shaw appears as a submission 
for the record.]
    Chairman Specter. Thank you, Mr. Shaw.
    And now my 5 minutes of questioning. Mr. White, when you 
served as Judge Alito's law clerk--and you have identified in 
your brochure your membership in the NAACP and ACLU--what was 
your sense of his view of equality of African-Americans, 
equality of opportunity?
    Mr. White. When I served I worked with him on several cases 
where race issues arose among blacks and whites and other types 
of race issues. Mr. Shaw, for whom I have the utmost respect, 
says that it is not about personality, it is not about the 
person, and I respectfully disagree. Judge Alito, when he was 
testifying, he said he has an open mind. During my testimony I 
said that Judge Alito treats everyone the same, and I also 
mentioned that he looks at every case as a brand new case. My 
experience was that he did look with an open mind, and that it 
is not personal. I have to respectfully disagree with that as 
well. It is kind of personal.
    On the street that I live I am the only African-American, 
and I can walk down the street without being racially profiled. 
Judge Alito has ruled that racial profiling is incorrect. So 
that is very personal to me. In my experience, he was very fair 
and open-minded.
    Chairman Specter. Thank you, Mr. White.
    I want to move to Mr. Turner at this point. Judge Tim Lewis 
testified yesterday, had been on the Third Circuit with Judge 
Alito for several years, an African-American. Identified 
himself as being very strongly pro-choice and very active in 
civil rights issues, and said that he would never consider 
supporting Judge Alito if there was any doubt in his mind as to 
Judge Alito's dedication to civil liberties. Do the views of 
Judge Lewis, Mr. White, who worked with him closely, have any 
impact on your thinking?
    Mr. Turner. Well, I would agree with my colleague and dear 
friend, Ted Shaw, that the folks who have worked with a lawyer 
or judge very closely in the course of their careers will have 
developed friendship and camaraderie with that person in ways 
that would promote good feelings about that person's character, 
temperament and ability.
    Chairman Specter. You think a little bias for Judge Alito?
    Mr. Turner. I would not use the word bias. That is a very 
positive--
    Chairman Specter. Wait a minute. That is why I used it.
    Mr. Turner. Mr. Chairman--
    Chairman Specter. Wait a minute. You do not have to use it.
    [Laughter.]
    Mr. Turner. Thank you, Mr. Chairman. Our view of Judge 
Alito is based upon his record as a lawyer and as a judge. It 
is based on his writings during the time that he was a lawyer 
in the Justice Department, and on the basis of his rulings from 
the bench, which have presented an ultra-conservative tendency 
to rule against people of color and women in cases involving 
discrimination, and to rule in favor of employers and other 
institutions that have sought to--
    Chairman Specter. Thank you, Mr. Turner. I have to move on 
to Congresswoman Wasserman Schultz.
    Mr. Turner. Thank you, Mr. Chairman.
    Chairman Specter. You know the political process, the 
election of Presidents and campaign issues, and I am sure your 
deep interest in this issue has led you to see the other 
reported prospects for the Supreme Court should Judge Alito be 
rejected, and you have heard Judge Alito's statements about 
what he would consider on stare decisis. Do you think if Judge 
Alito is rejected you will get somebody you like better?
    Representative Wasserman Schultz. I am hopeful--I recognize 
that the President, obviously, has the right to nominate a 
conservative. And I am a Democrat, and I recognize that given 
that the President is a Republican that that is likely what he 
would do with almost any nominee.
    But Americans have the right to expect that he will not 
nominate an extremist, and I agree with Mr. Shaw and Mr. 
Turner, it is well expected that colleagues of his--I served in 
the State Senate. I understand what collegiality is. Colleagues 
of his, former law clerks, they are going to express--
    Chairman Specter. Thank you, Congresswoman Wasserman 
Schultz.
    One last question, Ms. Pringle and also Mr. White. Ms. 
Pringle, two parts. What do you think about as concerns about 
women's issues? And both Mr. White and Ms. Pringle, there has 
been concern that Judge Alito may favor the powerful in the 
Government. You both clerked for him, saw him on specific 
cases. I would like your evaluation on that. Ms. Pringle?
    Ms. Pringle. I found that the Judge approached each case 
without a predisposition toward one party or the other. He does 
have respect for law enforcement, but I also felt that he had 
respect for the individual plaintiffs or the individual parties 
who came before him, and treated them in a fair and open-minded 
way.
    And I also think that--I understand the comments that have 
been made about personal relationships bearing on a witness's 
testimony, but I do think that a 15-year record gives an 
opportunity for every group to find something that they like or 
dislike.
    What I wish is that everyone on the Committee had had the 
opportunity that I have had to really get to know this person, 
because I believe that the concerns about his character and his 
approach to judging would be alleviated by that opportunity to 
really know and work with this person.
    Chairman Specter. Mr. White?
    Mr. White. Judge Alito's testimony and his record show that 
he has ruled in favor of the Government, and he has ruled in 
favor of what has been called the little guy, and from my 
experience, he always ruled fairly after thorough evaluation of 
the facts and application of relevant law.
    Chairman Specter. Thank you. Senator Leahy?
    Senator Leahy. As I just came, I was going to let Senator 
Kennedy go.
    Chairman Specter. Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman. I was interested 
in Mr. Shaw and Mr. Turner's reactions to the significance of 
Judge Alito's opinion in that Riley v. Taylor case, where he 
analogized statistics on left-handed Presidents and right-
handed Presidents to statistical evidence of discrimination in 
jury selection. You are familiar with this case where they 
struck three blacks from the jury and a black defendant was 
sentenced to death. Judge Alito found no cause to reject that, 
and used this right-hand, left-hand analogy. Are you familiar 
with that case? And maybe you would comment on that briefly. 
Has that got a ring to you, and does it within the community? 
It was such a startling fact situation, certainly for me. I am 
just wondering your own response, reaction.
    Mr. Shaw. Senator Kennedy, the Legal Defense Fund has 
litigated issues involving discrimination in jury selection 
almost throughout its existence. In fact, the late Judge 
Constance Baker Motley, when she was a Legal Defense Fund 
lawyer, argued Swain v. Alabama in the Supreme Court, which set 
a standard that existed for many years, which was inadequate to 
protect against discrimination in jury selection. The Legal 
Defense Fund litigated Batson v. Kentucky, which changed that 
standard.
    We believe that Judge Alito's comparison of race 
discrimination with people who are left- or right-handed really 
trivializes the significance of race discrimination and the 
history of race discrimination, and a continuing problem with 
respect to jury selection.
    And within the Third Circuit, Philadelphia itself and the 
District Attorney's Office recently, has had some terrible 
problems that have been exposed with respect to intentional 
discrimination with respect to jury selection.
    Senator Kennedy. I will ask Mr. Turner, but just this last 
comment to Dr. Gray's comment about the continuing ongoing 
challenge that we are facing, I think there are many of us in 
the Congress who just think, ``Well, the next thing up is the 
Voting Rights Act,'' but that is really the only thing that is 
out there. I think what has been mentioned by Mr. Shaw and also 
Mr. Turner and Dr. Gray, is that this is an ongoing, continuing 
everyday battle in almost every part of the country, including 
my part of the country.
    Mr. Turner. Yes. Thank you, Senator Kennedy. I agree with 
you wholeheartedly, and in fact, Justice Sandra Day O'Connor, 
as I quoted in my remarks, understands that, unfortunately, in 
this Nation race still matters. Our justice system is not as 
blind as it aspires to be, as we would all like for it to be, 
and it is particularly reprehensible for attorneys to use 
racial bias in the selection of jurors. Jurors are central, 
critical to our American system of justice. It is through the 
jury as fact-finder that we commonly seek to find truth in our 
justice system, and where that process is subverted on the 
basis of racial discrimination, particularly in a death penalty 
case, we strike at the very heart of what I know we all believe 
to be fundamental principles of justice in our society, and we 
believe Judge Alito's position and his remarks certainly 
minimize those important principles, if not completely 
disregard them.
    Senator Kennedy. Just in the brief time left, just one 
question, and that is how the Supreme Court looks to all of 
you. You represent different traditions, women, Hispanics, 
blacks. We want the Supreme Court to be universally respected 
and their decisions respected, and I think most of us believe 
that to the extent that it can reflect what our society has 
become in its diversity, and with all of its dynamism and its 
creativity, and evolving opportunity. I am just wondering 
whether any of you have a reaction. I think the Congressman has 
mentioned--I know we are short in time, but if each of you 
could just take just half a minute or so to tell us what you 
think in terms of this nominee versus what we are really 
hopeful of achieving in terms of a Supreme Court that is going 
to be reflective of our country and our society. Are you 
concerned about it? Should it make a difference? Does it make a 
difference? What do you think? Just go down the line. I know my 
time is up. This will be my last question, obviously.
    Ms. Pringle. I personally would like to see more women 
justices on the Supreme Court, and I hope that is something 
that we will aspire to as a country, but I am also pleased to 
see an Italian-American, first generation, lawyer on the 
Supreme Court as well.
    Representative Gonzalez. And as a Hispanic, of course, it 
would be important to have a Hispanic on the Supreme Court of 
Texas, but Senator, at the end of the day, in final analysis, 
the truth is, give us anybody up there who will give us a fair 
shake and is not predisposed, and when we have a President who 
says, ``I am going to be nominating individuals more in the 
mode of Scalia and Thomas,'' he gives us great cause to pause 
and ponder and question.
    Representative Wasserman Schultz. This nomination is 
particularly important because of who Judge Alito would be 
replacing. He is replacing the first woman to ever serve on the 
Supreme Court, and he is replacing someone who has consistently 
been the key swing vote in very significant cases that matter 
to women and minorities in this country, and he has very 
divergent views from Justice O'Connor, and I think that is 
incredibly important to know.
    Senator Kennedy. Mr. White?
    Mr. White. I think it is extremely important to have a 
Supreme Court that reflects the people for whom it is 
interpreting the laws. In the absence of an African-American 
nominee, I think that Judge Alito was an excellent choice.
    Mr. Turner. Thank you, Senator Kennedy. I believe diversity 
may be America's greatest asset, and when we fail to embrace 
our Nation's diversity, particularly in an area as important as 
judicial appointments, we polarize our Nation at a time when 
unity and tolerance of diversity is critically important to our 
continued advancement as a great Nation, critical to our 
national security and our productivity.
    Mr. Shaw. Senator Kennedy, I think we are long past the 
time when a Latino, a Hispanic ought to be on the Supreme 
Court. I believe diversity on the Supreme Court is important, 
but I am more concerned about the substance of the Supreme 
Court. The Court has been divided in race cases for the last 25 
years with a narrow 5-4 edge in most cases. Justice O'Connor 
was the deciding vote in many of those cases. We did not always 
get her vote, but it was in play. That is what we are concerned 
about with respect to this nomination.
    Senator Kennedy. Thank you, Mr. Chairman.
    Thank all of our panel.
    Chairman Specter. Senator Leahy?
    Senator Leahy. Mr. Chairman, most of the questions have 
been asked, so I am not going to ask them again. I have read 
carefully the statements of each one of you, and I appreciate 
you being here, and I apologize, as I did to others earlier, 
about having to leave for the memorial service.
    Representative Wasserman Schultz, having you here, I could 
not resist. I had asked Judge Alito several questions about the 
very deeply personal matter of Terri Schiavo from your State. I 
was offended, as many others were, at the number of people in 
elective office running before the cameras to try to grandstand 
in what was a terrible family tragedy. We saw them trying to 
overrule the State of Florida. I forgot the number of times the 
State courts in Florida faced this issue.
    Representative Wasserman Schultz. Twenty.
    Senator Leahy. Twenty. I knew it was a lot. Some Members of 
Congress were attacking the judges who upheld the State court 
rulings because it fit their political purposes. The Florida 
legislatures passed an unconstitutional measure allowing 
Governor Bush to intervene. Actually a colleague of yours in 
the other body even issued a congressional subpoena to prevent 
Terri Schiavo's medical decisions.
    I mention this sad and somewhat outrageous conduct of 
people who know better, but in every single case were attacking 
the independence of the judiciary. Do you have a sense whether 
Judge Alito would be one who would value an independent 
judiciary? I ask this in light of the questions I have asked 
him on the unitary Executive, and the situation we now see 
where the President can sort of write sidebars to everything 
from torture legislation to spying.
    Representative Wasserman Schultz. I think that that is an 
extremely important question, and Judge Alito's record is 
emblematic of the problems with the Terri Schiavo case. His 
views on privacy are extremely important. In that case you had 
the Congress insert itself into a family's private tragedy. You 
had the State legislature give our own Governor the 
unconstitutional right to overturn a judicial decision. You 
had, time and again, the Supreme Court rule that this was a 
matter that should be decided in State court, and decided not 
to take the case up. And I think it is a very important 
question. If that case had gone to the Supreme Court and you 
had the question of whether Congress actually had the right to 
insert itself into Terri Schiavo's private family tragedy, how 
would Judge Alito have ruled?
    He has very troubling views about the power and the 
authority of the Executive, and I think that we need to make 
sure that we zealously guard our legislative authority and make 
sure that we have a Justice on the Supreme Court that supports 
the system of checks and balances, and I do not think that 
Judge Alito's record demonstrates that he does.
    Senator Leahy. Thank you. Thank you very much.
    Mr. Chairman, thank you for your patience.
    Chairman Specter. Thank you. There are two more items that 
I want to cover, but we will first of all let the panel go.
    Thank you very much, Ms. Pringle, Congressman Gonzalez, 
Congresswoman Wasserman Schultz, Mr. White, Mr. Turner and Mr. 
Shaw. You have been a very enlightening panel, and I know how 
deeply all of your views are held. That is one thing we have 
seen in this hearing. Nobody is casual about Judge Alito. 
Everybody is very decisive. Emotions run deep.
    Two items I want to cover, one in a colloquy with my 
distinguished ranking member, that is the future schedule on 
Judge Alito, and then I intend to announce my own decision on 
my vote now that the hearing is over.
    The issue of scheduling has been extraordinarily difficult, 
as Senator Leahy and I have wrestled with that problem. 
Preliminarily, let me say that it has been a pleasure to work 
with Senator Leahy, and I think our collegiality has been 
demonstrated in many ways, mostly by all of the pictures taken 
where we were huddled together so that our voice do not carry 
too far beyond, and also with a sense of humor. In the bad old 
days, when I had no hair, the only way that Senator Leahy and I 
could be told apart was by color of our ties.
    [Laughter.]
    Senator Leahy. Of course, you are still wearing the red 
tie.
    Chairman Specter. I am glad to have some hair.
    But the scheduling issue has been an important one, and it 
was a difficult issue as to when we would schedule these 
hearings. The President, as is well known, wanted the matter 
decided before Christmas, and it seemed to me that was not 
realistic. We had to do it right and not do it fast. And then 
the issue came up, OK, not before Christmas, then when? And I 
wanted to start the hearings the day after New Year's. I wanted 
to start them on January 2nd. And the Democrats have a right, 
under our Committee practices, to delay for a week, and it 
seemed to me that that week could be given from the 2nd to the 
9th, and that would be the week's delay. Senator Leahy and I 
are under--we have a lot to consider. We have Committee members 
who have views, and we have caucuses which have views.
    But at any rate, we came to terms on what I thought was 
done, and Senator Leahy and I then went up to the radio-TV 
gallery, and I want to read a bit of the discussion which we 
had there. I do not do this in a legalistic sense to mind 
Senator Leahy. I do it to set the parameters as to where we 
have been and the views that my Committee members have and 
which I have. This is the transcript.
    But at any rate, Senator Leahy and I have worked through 
it, and said it could be delayed a week in any event by any 
Senator who wants to hold it over for a week, that we would put 
that week back at the start on the 9th with the good faith 
understanding that our intent would be to go to the Executive 
Committee meeting on the 17th, the day after the Martin Luther 
King holiday, so that the schedule will be that we will start 
hearings at noon on the 9th, will have them on Tuesday the 
10th, Wednesday the 11th, Thursday the 12th, Friday the 13th, 
and Saturday the 14th if necessary. Then we will go to the 
Exec. on the 17th, and here we cannot get everybody bound in 
writing to waive in advance, but Pat Leahy and Arlen Specter 
have had no problems, nor have we anybody on the Committee of 
not fulfilling what we have said we would do as a matter of 
good faith intent, which would put the Executive Session on the 
17th. We finished that with Chief Justice Roberts in the 
morning.
    And then we would go to the 18th, 19th and 20th for floor 
debate, with a vote on the 20th.
    There is more dialog, and Senator Leahy then put in a 
limitation, quote, ``Obviously, this leaves room if something 
extraordinary comes up that neither, frankly, neither Senator 
Specter nor I anticipate or expect,'' close quote. And I did 
not object to that. Seemed to me that that was a reasonable 
condition which might change what I had said earlier.
    It is my intention to adhere to that schedule and to set 
the Executive Committee meeting for next Tuesday, the 17th in 
Dirksen 226, our regular hearing room, at 11 a.m.
    Senator Leahy?
    Senator Leahy. Of course, we did this on November 3rd, and 
the discussion was had by--you are absolutely right, by Senator 
Frist, who was responding to the--I will not characterize it as 
pressure, but the direction he had received from the White 
House to move forward prior to Christmas. You may recall that 
Senator Frist had first said that the Senate would adjourn for 
the year in the first week in October, and then under every 
conceivable circumstance, the week before Thanksgiving, and 
instead there was a joyful singing of Christmas carols in the 
halls as we were finishing up just a few days before Christmas.
    Had we followed what the White House had told Senator Frist 
they wanted and gone before Christmas, of course, we could not 
have even had the hearing. We were having votes every 10 
minutes. It would have been chaotic. It would not have been the 
dignified and thorough kind of hearing we had here.
    On January 2nd, of course, was a holiday, we could not come 
back that day and start the hearings. As I stated at the press 
conference, it would have meant destroying any of the staff's 
attempt to have any time over the holidays with their families. 
They had lost much of the family time during the normal school 
vacations in August because we had to prepare for the Roberts 
hearings. This was, of course, the third nominee of the 
President for this seat.
    I would have much preferred, as you know, for a personal 
reason to have had it the first week during January because of 
long, long, long standing personal plans for this week, which I 
canceled, because otherwise it would have meant canceling 
everybody's time with their families at Christmas.
    I had been told that a number of our members are going to 
be home for Martin Luther King events this weekend, will not be 
back on time on Tuesday, and so they will exercise their 
rights. And as you and I discussed privately prior to that 
press conference, of course, any Senator could exercise their 
right to put it over, a right that you and I--both of us have 
served as Chairman--something you and I have always protected.
    I understand from something the majority leader said that, 
again, even though the Court does not come back in until the 
latter part of February, that the White House has told him they 
want the debate to begin before the President's State of the 
Union, even if we had--I do not have a calendar before me--but 
even if we put this over from next Tuesday to the following 
Tuesday, there is no reason why then it could not be on the 
floor on Wednesday, which is still 6 days prior to the State of 
the Union. Just in case you are wondering.
    [Laughter.]
    Chairman Specter. This is about the first time Senator 
Leahy and I have not agreed on something, but there has to be a 
first time for everything.
    Senator Leahy. I agree you are a superb Chairman. We can 
agree on that I hope.
    Chairman Specter. The reciprocity of respect, I think, is 
pretty evident, the way we have conducted these hearings. And I 
appreciate what Senator Leahy has said about the full and 
fair--and he used the word dignified--I think they are 
dignified. There is a Latin maxim, the exception proves the 
rule. There might have been 4 minutes in the hearing when it 
was not dignified, but we worked through that as well. About 
the only thing the respective parties have been able to agree 
to on this whole proceeding is that Senator Leahy and I have 
functioned collegially and have produced a full and fair and 
dignified hearing.
    As far as I am concerned, we are going to proceed on the 
17th at 11, and if the right of the--
    Senator Leahy. The right of any Senator.
    Chairman Specter. Well, if they are held over, they are 
held over. I had thought we had--I do not fault Senator Leahy. 
I had thought that the Democratic Caucus knew what we were 
doing, and they certainly knew about it after we said it, but 
we will work through this problem like many, many others. This 
is not a gigantic problem.
    Senator Leahy. I think one of the problems is that--whether 
this affected it or not, I think the fact that the time that we 
were going to wrap up the session, the time which is determined 
by the leadership, by the majority leadership, kept changing, 
kept changing almost day by day, by day, by day, by day, and it 
probably has put all the pressure on everything else. I would 
hope that we could work this out. Maybe you and I can--we have 
each other on speed dial at home, and Senator Specter has heard 
many descriptions about my farm house--let us get some of these 
hearings out of the way, and you and I can sit up there and 
have dinner and have a good time, but we will talk about this 
over the weekend.
    Chairman Specter. Thank you, Senator Leahy.
    Let me now move to the final item of the Committee hearing, 
and that is the announcement of my position. And I intend to 
vote to support Judge Alito's nomination for Associate Justice 
to the Supreme Court, and I do not do that as a matter of 
having a party-line vote or as a matter of party loyalty. If I 
thought that Judge Alito should not be on the Supreme Court, I 
would vote no, just as I did with Judge Bork.
    My commitment to the President as Chairman of this 
Committee is to give his nominees prompt hearings and to vote 
them out of Committee. And I have always believed in that. 
Before I became Chairman, I believed that there had been too 
many delays on both sides. Both Democrats and Republicans have 
delayed hearings on judicial nominees, and that led us to an 
escalation of events and filibusters and possibility of the 
constitutional or nuclear option. We have worked through that, 
and Senator Leahy and I were instrumental in avoiding what 
could have been a really cataclysmic event in the Senate. And I 
have always believed in voting people out of Committee.
    I recall the days when matters were bottled up in the 
Committee, and I never agreed with that. And I voted against 
Judge Bork in Committee, but I voted to send his nomination to 
the floor. So in fulfilling my commitments to the President and 
the Republican Caucus to have prompt hearings and to vote 
people out of Committee, I believed in that before I was 
Chairman, and I believe in it now. And after fulfilling those 
duties, whether I vote aye or nay, that is my independent 
judgment. Under separation of powers, Senators are separate 
from the executive branch. It would be inappropriate to make a 
commitment on a vote in advance in any way, and I prize that 
independence very highly.
    With respect to Judge Alito's qualifications, I think that 
they are agreed to, no doubt about the quality of his academic 
standing at Princeton and Yale or his erudition or his 
scholarship, working in the Solicitor General's Office and 
Office of Legal Counsel, then 15 years on the bench. We could 
not have held these hearings when we did, into January, because 
there was so much to do. And this Committee has worked very, 
very hard, and I thank not only the members of the Committee 
but the staffs. The staffs of this Committee didn't have an 
August. There was no recess to get ready for Judge Roberts' 
hearings. We didn't have a December or a November. We haven't 
had much of a January.
    Senator Leahy. January is not too good so far.
    [Laughter.]
    Chairman Specter. But we wanted to do it right, and I think 
we have done it right. We have gone very deeply into Judge 
Alito's background and studied his record.
    With respect to the answers which Judge Alito gave, there 
are going to be differences of views. I thought we had to hear 
his answers before coming to judgment, and I have urged 
colleagues on both sides of the aisle not to make up their 
minds before the hearings are over. There has been an enormous 
amount of publicity about Judge Alito, as there was about White 
House Counsel Harriet Miers. And as I have said before, Ms. 
Miers was run out of town on a rail. The nomination was decided 
in the radio talk shows, TV talk shows, on the op-ed pages, and 
not by the Committee, which is what the Constitution says 
should be done. The Senate should make the decision and it 
ought to have a hearing in this Committee.
    And we kept a level playing field for Judge Alito, and I 
was frankly a little concerned about the opening statements on 
both sides--a lot of accusations on one side and a lot of 
hyperbole on the other. And this is not a court of law, but I 
wanted Judge Alito to have a chance to explain where he stood 
and not to come to conclusions from the testimony. It was 
important to come from him.
    I think that his answers in a sense went farther than any 
in the past because he did not say that he would not respond 
because the case might come before the Court. He ultimately 
refused to give judgments as to how he would vote, but when the 
issue was raised, he discussed the considerations that would be 
involved on Executive power, a really very important subject, 
as to whether the resolution for the authorization of use of 
force comprehends authority to engage in electronic 
surveillance, and I don't think it does. The Foreign 
Intelligence Surveillance Act is specific on that point.
    But we are going to have a hearing, and we hope to hear 
from--we expect to hear from the Attorney General on the 
question of whether there is constitutional authority for the 
President to override a statute because of his Article II 
power. Those questions were put to Judge Alito, and he 
responded with the kinds of considerations which would be 
involved. And I think he touched all the bases there, but he 
was not going to say how he was going to rule, nor should he.
    When it came to the question of court-stripping and the 
amendment taking away habeas corpus jurisdiction from the 
Federal courts on detainees, I think that is an atrocious piece 
of legislation. I believe it will be declared unconstitutional. 
But when he was asked about that, he talked about the 
considerations involved, not how he was going to decide it.
    And on congressional power, I think he agreed that the 
method of reasoning of Supreme Court Justices is not superior 
to the method of reasoning of Congress, and that there oughtn't 
be flabby tests, as we talked about Justice Scalia's dissent on 
the Americans with Disabilities Act.
    When it came to Roe v. Wade, I think he went about as far 
as he could go. He started off by saying that he agreed with 
Griswold, a constitutional right of privacy in the Liberty 
Clause, and that it would apply to single people as well in 
Eisenstadt, and that when he was dealing with Casey, the issue 
of reliance was very important, that he thought it was critical 
by analogy to what Chief Justice Rehnquist had done in Miranda, 
that it was a critical factor as to whether a decision was 
embedded in the culture of the community. And I certainly think 
from my own point of view Roe is. And he agreed that it was a 
living Constitution, subject to change, as Cardozo said in 
Palco with the mores and values of the people.
    And we had a lot of discussion as to his views on Roe v. 
Wade and what then-Judge Roberts had said. And from my reading, 
I don't think there is a dime's worth of difference between 
what Chief Justice Roberts said and what Judge Alito said about 
that. Both relied heavily on precedents, but said that they 
would not make a final commitment, nor should they have made a 
final commitment.
    I think the judicial panel was very instructive, and there 
had been some precedents for it in the past, although this 
broke new ground in having as many testify as they did. And the 
practice after judges hear arguments to go into conference to 
discuss it is one which is not widely understood by people, and 
Judge Alito went into conferences. he and Judge Becker had sat 
on more than a thousand cases. I believe Judge Becker testified 
they disagreed only 15 times. Judge Becker received the Devitt 
Award as the Outstanding Federal Jurist a couple of years ago. 
Of course, I know Judge Becker very well because we went to 
college and law school together, and he has been a close 
friend. But he didn't exert any undue influence on me. But he 
testified that Judge Alito had no agenda and was not an 
ideologue. And so did Chief Judge Scirica. And, of course, I 
know the Third Circuit because it is my circuit. I have argued 
a lot of cases in the Third Circuit and had a hand in the 
appointment of Judge Scirica to both the district court and the 
court of appeals, and Judge Barry.
    And then I thought the testimony of Judge Timothy Lewis was 
very influential, and just a word about Judge Lewis. I first 
heard about him in about 1990 when he was an Assistant U.S. 
Attorney in Pittsburgh, an African-American. And Senator Heinz 
and I were very interested in diversifying the court, having an 
African-American. Hard to find a Republican African-American. 
Still is pretty hard to find. And when we found one, I wanted 
him on the district court bench. And I heard about him one 
morning in Pittsburgh, saw him that afternoon in the hotel 
lobby, and talked to Senator Heinz about him the next day. And 
he was put on the district court, a very fast time, then on the 
court of appeals in 1992. And I have known him for more than 15 
years, and when he says after knowing Judge Alito as he did, 
sitting with him, and Judge Lewis being dedicated to pro-choice 
and to civil rights, active on the ACLU and pro-choice, that he 
wouldn't testify for him if there was a doubt in his mind, I 
thought that was significant.
    We have gone beyond asking some of the witnesses what 
happens if Judge Alito is rejected. This was an issue in the 
Presidential campaign on both sides. Senator Kerrey said he 
would appoint someone who was pro-choice, and I think President 
Bush said he would not use a litmus test. And I don't use a 
litmus test myself. But at least from those who have been 
reported in the press who would be considered, I put that 
question to Congresswoman Wasserman Schultz and to Ms. Kate 
Michelman, whom would they expect to find who would give more 
credence, thoughtfulness, and the precedents in the field.
    Well, those are some of my reasons for supporting Judge 
Alito. I will prepare a written statement, but I thought it 
important to state my views now that the hearings are over. I 
know that I have already been asked many times by the press how 
I am going to vote, and I don't want to be coy and I don't want 
to hold back. And if the Senate was in session now, I would 
wait until the Senate was in session to go to the floor to make 
a statement. But that is how I think it through.
    Senator Leahy?
    Senator Leahy. I will just be very brief, Mr. Chairman. I 
was following with interest what you were saying, also the 
interest and the history in Pennsylvania--as you know, one of 
my favorite States. I visit there often, in fact, drive through 
there the one time a year when I drive to Vermont, usually 
during the August recess, this time with a trunkload weighted 
down with all of then-Judge Roberts's writings.
    You had mentioned one thing about voting against a Supreme 
Court Justice in Committee, but then voting to go on the floor. 
I think that is a good practice. I joined you on that 
particular nominee. I had at least a couple nominees for the 
Supreme Court whom I voted against in Committee as I stated 
what my position was. But I then voted that they go to the 
floor of the Senate because I thought for a Supreme Court 
Justice, we ought to all at least follow the Senate procedures 
where a hundred of us could decide what procedure to follow and 
have a vote. That is one of the reasons why I felt so 
frustrated with the 61--you were not Chairman, but the 61 of 
President Clinton's judicial nominees who were never allowed to 
have a vote in Committee but were basically pocket-
filibustered. I thought it was a bad practice then. I think it 
is a bad practice, as I said, a lot of the partisanship that 
you and I have worked very, very hard to lower, that you and I 
have tried to go back to the type of Senate it was when both of 
us came here.
    I will work with you, of course, on the scheduling of this. 
I had obviously not realized, one, that we would go so late in 
the year, but, two, that we would have a number who are not 
prepared to vote on Tuesday and will just follow the normal 
rules. But there will be no problem then in voting the 
following Tuesday. You have actually picked up a couple days by 
having the markup on a Tuesday, not a Thursday, voting the 
following Tuesday, and I guess it would be on the floor then 
Wednesday and off we go.
    Excuse me. This is not emotion. It is a Friday afternoon 
voice. And as I said, I expect you and I will talk over the 
weekend. I admire you as a Senator. I admire your work as 
Chairman. I have often said that of all the Senators, you were 
my number 2 choice to be Chairman of this Committee.
    [Laughter.]
    Senator Leahy. Unfortunately, I don't get my number 1 
unless the Democrats are back in the majority.
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Leahy. Thank you.
    Chairman Specter. Thank you very much for a full, fair, and 
dignified hearing.
    And that, ladies and gentlemen, concludes the nomination 
hearing for Judge Samuel A. Alito, Jr. for the Supreme Court of 
the United States.
    [Whereupon, at 1:34 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]
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