Highlight Excerpts From Sam Alito Senate Confirmation Hearings Days 2, 3, & 4

Day 2 January 10, 2006 Source: http://www.washingtonpost.com/wp-dyn/content/article/2006/01/10/AR2006011000781.html

Puzzled Blowhard Senator Joe Biden (D-DE)

BIDEN: Thank you, Mr. Chairman.

I understand, Judge, I'm the only one standing between you and lunch, so I'll try to make this painless.

Judge, I'd like to say a few very brief things at the outset. I'm 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's 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 -- granted, it's back in '85 or '84 when you wrote, "I do not question the attorney general should have this immunity as 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 as -- at least from my perspective, as I've read it so far -- that people think that this is a bad guy.

BIDEN: I mean, 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're looking for an explanation.

So it's not about whether you are profiting or whether you are, you know, all of this malarkey about whether you broke judicial ethics. It's, you know, a simple kind of thing. You under oath said: I promise if this ever comes up, I'll recuse myself. And then you gave an explanation. It slipped, you forgot, it had been years earlier, et cetera.

So don't read it as this is one of these things where we know where you are. The people I've spoken to on your court -- and it's my circuit -- have a very high regard for you. And I think you're a man of integrity. The question is, sometimes some of the things you have said and done puzzle -- at least, puzzle me.

And one of the things -- this is not part of a 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, University of Pennsylvania.

But I remember at Princeton, I had spoken on campus in the early '70s. 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 United States senator, was disassociating himself with this outfit, that there was a magazine called Prospect. I remember the magazine.

And all I want to ask you is: Were you aware of the other things that this outfit was talking about? Were you aware of this controversy going on in...

ALITO: Senator, I don't believe that I was.

ALITO: And when it was mentioned that Senator Bradley had withdrawn from the magazine, that didn't ring any bells for me. I did not recall anything like that.

BIDEN: Well, 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 United States 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 of the Delaware Valley, if Princeton, Penn, the schools around there had this kind -- 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 '85, "I am a member" -- they had restored ROTC. ROTC was back on the campus.

But again, this is just by way of why some of us are puzzled. Because if I was aware of it, and I didn't even like Princeton...

(LAUGHTER)

I mean, I really didn't like Princeton. I was an Irish Catholic kid who thought it had not changed like you concluded it had.

I admit, one of my real dilemmas is I have two kids who went to Ivy League schools. I'm not sure my Grandfather Finnegan will ever forgive me for allowing that to happen.

But all kidding aside, I wasn't a big Princeton fan. And so maybe that is why I focused on it and no one else did. But I remember it at the time.

The other thing is, Judge, the other thing you should be aware of -- and do not take this personally, what's going on here -- every nominee that 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.

BIDEN: The first one is individual qualifications and what their constitutional methodology, their views are, their philosophy.

But the other is -- and it always occurs -- whose spot they're taking and what impact that would have on the court.

Everybody wrote with Roberts after the fact that 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's the worst that can happen, quote/unquote, or the best that can happen?

(LAUGHTER)

No, I'm not being facetious. What's the best or worst?

If you're conservative, the best that can happen is he's as good as Rehnquist. From the standpoint of a -- someone who's a liberal, the worst that can happen, he's as good as Rehnquist.

So, I mean -- but you're 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's -- most scholars who write about her, and in a retrospective about her, say this is a woman who viewed things from -- the phrase you've 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, that -- what would happen to an individual.

So her focus on the impact on individuals was sometimes criticized and praised.

BIDEN: It's 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's 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 concern Princeton. Because, again, a lot of this just is puzzling; not 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 number two in her class from Stanford, couldn't get a job, was offered a job by law firms -- granted, she was older than you are, but couldn't get a job because she was a woman; they'd offer her a job as a secretary.

And so she understood what I think everybody here from both ends of the spectrum understand: that discrimination has become very sophisticated. It's become very, very sophisticated, very much more subtle than it was when I got here 34 years ago or 50 years ago.

And employees don't say any more, you know, "We don't like blacks in this company," or, "We don't want women here."

BIDEN: They say things like, "Well, they wouldn't fit in," or, "You know, they tend to be too emotional" or "a little high-strung."

I mean, there's all different ways in which now it's become so much more subtle. And that's 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's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists.

And so I'd 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'm 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 the decision to hire another woman who they asserted was more qualified than Ms. Bray.

Now the district court judge said, you know, Ms. Bray hadn't even made a prima facie case here, or she made -- but she hadn't made a sufficient showing to get to a jury; I'm finding for the corporation here.

And Ms. Bray's attorney appealed and it went up to the 3rd 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. 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.

BIDEN: They went on to say that racial animus runs so deep in some people that they're 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 cost of a trial on employers. And so your colleagues thought you set the bar, I think it's 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's most qualified -- 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's 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.

ALITO: Well, this case was one of quite a few that we get that are on the line. And when you think about the nature of the appellate system, it stands to reason that it's 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 a modest amount. 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.

ALITO: 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 3rd Circuit. I was one. And we thought the evidence was not quite sufficient.

And then my colleague Theodore McKee and Judge Greene, a district court judge from Philadelphia, 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's 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're going to promote or we're not going to promote." And if they decided we're not going to promote, then they were supposed to tell that person, "We've decide 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. Reel (ph), before they told Ms. Bray that they weren't going to promote her. They had nothing to gain by doing that. So it's a fact to be considered.

BIDEN: Judge, could I -- I don't mean to interrupt; I'm not sure I understand.

I think the reason for that policy is that that's the way people do discriminate. For example, you get somebody in -- a woman, a black, Hispanic, whomever -- who's qualified, but you do not want to hire them.

And if you say, in your mind, "OK, I'm going to keep looking until I find somebody's who more qualified so that I don't have to hire" -- I mean, just so we both understand, that's why that rule is there. It is not just a little deal, it's the real world. That's how people work.

People don't say anymore, "I'm 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 -- "Ah-ha, I've got one here who's a Rhodes Scholar, I've got one here who's a white male who happened to have experience doing it." That's why they had that rule.

So again, I'm not questioning your commitment to civil rights. What I do wonder about is, whether or not -- it's presumptuous of me to say this -- whether you fully appreciate how discrimination does work today.

That's why the corporation set that rule up: "Interview the one inside the company, that was our practice to hire inside; tell them they had 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'm going to keep looking. Fine me somebody who has some experience somewhere else."

That's why they had the rule, right?

ALITO: I think you make a good point, Senator.

But in this instance, my recollection is -- in fact, I'm quite sure of this -- these were both people who were from the inside.

ALITO: 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's 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 have outlined, that you could draw a pretty substantial inference of an intent to discriminate from that.

But nothing like that was presented to us in that case as I remember it.

BIDEN: Weren't the facts in that case also that there was a Mr. Joston (ph) who had held the very job -- he was leaving the job -- that's the job being filled -- he said, in my opinion, which I let be known. I beg your pardon, it wasn't Mr. Joston (ph).

The person who was giving up the job said, in my opinion, I let it be known to the Mr. Joston (ph), the guy doing the hiring and which Mr. Joston (ph) was aware that (inaudible) was more than qualified to take over my positions as director of services of 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 Joston (ph) had said in the deposition under oath, "She's not qualified," when she clearly was qualified.

I mean, I guess what I'm 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?

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.

When the district actually looked at the qualifications of the two candidates and said, this isn't even close. Ms. Reel (ph) is much better qualified than Ms. Bray.

ALITO: Now I didn't say that and I didn't think that. And I thought that they had somewhat different qualifications, and a reasonable person could view it either way. But it 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.

BIDEN: Well, again, I'm 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's what puzzled me.

And what really got my attention in the case was you have a pretty collegial court, the 3rd Circuit. I mean, that's my observation. I don't follow it quite as closely as the man who's appointed about everybody on that court, our chairman, but I follow it very closely.

And I thought it's pretty strong language that a majority of your panel said that your standard would eviscerate the Ninth Amendment. That, in 3rd Circuit language, is a pretty strong statement.

But 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 the 11 judges on your circuit who heard the appeal, who ruled that a jury trial should have been overruled -- a jury verdict would have been overruled.

In this case, the woman alleged that she was constructively discharged; for the nonlawyers listening to this, it means she basically was demoted to the point where she was, as a practical matter, forced to quit.

And this woman alleged that she was constructively discharged. And she argued that it occurred after she had brought a discrimination claim, and where the records show that her employer said, "I'm going to hound you like a dog."

BIDEN: It was in the record -- "I'm going to hound you like a dog" for bringing this discrimination claim.

And there were more than one issue. One was whether this was an 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 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 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 do not like the way you look." And I'm not being facetious...

(CROSSTALK)

(LAUGHTER)

BIDEN: For the record, I'm a fan of the woman from California.

BIDEN: But all kidding aside, I mean, that's 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 weren't true.

How do you distinguish that from discrimination, subtle discrimination? That's tough for me.

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 had 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 create -- point to enough evidence to show that the reason given by the employer is a pretext is incorrect, then that's enough to go to the jury.

ALITO: In the vast majority of cases, that's sufficient, but not in every case. And that's what I said in Sheridan, and that's what Justice O'Connor said when she wrote the opinion for the Supreme Court in Reeves v. Sanderson Plumbing.

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's clear to me she would reached a different conclusion. She would have been with your 10 colleagues.

Here's what she said. She said in the Reeves case that she would not send a case to the jury if, and I'm quoting, "one, the record conclusively revealed some other nondiscriminatory 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" -- and -- "there was abundant uncontroverted evidence that no discrimination had occurred."

It seems to me she's much more prepared to give the benefit of the doubt to the employee in that situation and you're much more 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, 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 11-1 and not 10-2 had she been on the court. But who knows?

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.

BIDEN: Well, they kind of did talk -- you'd know better than I, Judge. I don't mean to suggest I'm correcting you. But as I read the case, they did get into the minutiae...

ALITO: They did.

BIDEN: ... the factual minutiae. And in the Reeves case, O'Connor, not that it's -- because there were two different cases we're talking about here. We're talking about a similar rule, two different cases. O'Connor reversed the 5th Circuit decision.

And here's what she said when she reversed it. She said reverse the lower court because, quote, "it proceeded from the assumption that a prima facie case of discrimination combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate nondiscriminatory reason for its decision is insufficient as a matter of law to sustain the jury finding of intentional discrimination."

It seems to me that's what you did. In my view, that's what you did. That's 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's your day job, and we do this part time. We have other things like wars and foreign policy to deal with, so I'm not presuming to be as knowledgeable about this as you do.

Let me move on to a third case, very quickly. I only have two and a half minutes left. And it's the Casey case, Planned Parenthood. And I don't care what your position is on abortion. This is not about your abortion position. It's about your reasoning here.

As a matter of fact, with two minutes and 30 seconds, I probably can't get into the case. Maybe I should do it in a second round.

BIDEN: 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 still remaining somewhat puzzled is on whether or not you, whether it's 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'm not associating myself with the studies done -- I don't know enough to know whether they're correct or not -- by Cass Sunstein and others; I don't disagree with them.

But as I've 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's perfectly correct. All I'm suggesting is if I'm right -- and we'll get a chance to do this again -- if I'm 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've 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's 40 seconds under his time.

(LAUGHTER)

SPECTER: Thank you very much, Senator Biden.


Smucky Chucky Schumer (D-NY)

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. 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?

SCHUMER: It's OK if you distance yourself from it, and it's fine if you embrace it. We just want to know your view.

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'm 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've 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 the court were to get beyond the issue of stare decisis, then I would have to go through the whole judicial decision-making process before reaching a conclusion.

SCHUMER: But, sir, I am not asking you about stare decisis. I'm not asking you about cases.

I'm asking you about this: the United States Constitution. As far as I know, it's the same as it was in 1985 with the exception of the 27th Amendment, which has nothing to do with what we're 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?

ALITO: Senator...

SCHUMER: I'm not asking about case law. I'm not asking about stare decisis. I'm asking your view about this document and whether what you stated in 1985 you believe today; you changed your view; you've distanced your view?

You can give me a direct answer. It doesn't matter which way you answer, but I think it's important that you answer that question.

ALITO: 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.

ALITO: That's the only way I can answer that question.

SCHUMER: Sir, I'm not asking for the process. Obviously, you'd use a judicial mindframe. You've been a judge for 15 years.

I'm asking you -- you stated what you believe 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're particularly proud of that personal belief that you had. You still believe it.

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 is before me and I would have to consider the arguments and they might be different arguments from the arguments that were available in 1985.

SCHUMER: But, sir, I'm not asking you about case law. Now, maybe you read a case and it changed your view of the Constitution.

I'm asking you -- and not about the process you've used -- I'm asking you about your view of the Constitution because, as we all know, and we're 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's precedent on the books for decades, it's still important to know your view of what the Constitution contains.

And let me just say, a few hours ago, in this same memo -- I can't remember who asked the question -- but 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 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?

ALITO: The question about 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.

ALITO: But the only way you are asking me how I would decide an issue...

SCHUMER: No, I'm not. I'm asking you what you believes in the Constitution.

ALITO: Well, you're asking me my view of a question that...

SCHUMER: I'm not asking about a question. I'm asking about the Constitution, in all due respect, and something you wrote about...

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 those protections.

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That's in the First Amendment.

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?

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.

SCHUMER: Well, OK. I know you're 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's part of your obligation to us that you do, particularly that you stated it once before so any idea that you're approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you're refusal I find troubling. And it's sort as if I asked a friend of mine 20 years ago -- 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 one year."

I said, "No, no, no. Do you still hate your mother-in-law?"

And he said, "I can't really comment."

What do you think I'd think?

ALITO: Senator, I think...

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)

OK.

ALITO: I have not changed my opinion of my mother-in-law.

SCHUMER: Good.

(LAUGHTER)

I'm glad you haven't.

ALITO: I can answer that question.

SCHUMER: She seems nice.

Let me go now to stare decisis, because what you've said is you start out stare decisis, although I think a lot of people would argue you start out with the Constitution, upon which stare decisis is built.

SCHUMER: OK.

Now you've 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're on the 3rd Circuit, of course, you can't overrule precedents of the Supreme Court, but when you're 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 said that before in reference to Senator Feinstein. When Judge Roberts was here, he said it was discretionary. So it's not immutable. Is that right? You've told us it's not an inexorable command. It doesn't require you to follow the precedent.

ALITO: It is a strong principle. And in general courts follow precedence. The Supreme Court needs a special justification for overruling a prior case.

SCHUMER: But they have found them. 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 nine 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 over ruled by Plessy.

So the bottom line, let's just -- I mean, we can go through this -- I mean Plessy was overruled by Brown. I apologize.

So the only point I'm 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.

ALITO: Yes.

SCHUMER: Now let's try this another way.

SCHUMER: Here's a quote: "Stare decisis provides continuity to our system. It provides predictability. And in our process of case- by-case decision-making, I think it's a very important and critical concept." Statement sounds reasonable to me. It sounds to me like it's something you said to Senator Specter and others, right?

ALITO: I agree with the statement, yes.

SCHUMER: 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." "Bachus (ph)" -- just last year -- "should be overruled."

And as you can see, it's 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' theory of stare decisis and how he applies it?

ALITO: Senator, I've explained my understanding of the doctrine of stare decisis, and it is important to me. I think it's an important part of our legal system. It is...

SCHUMER: But how about what Justice Thomas, what do you think of what he's doing?

ALITO: Well, I don't think I should comment on all of those cases.

SCHUMER: OK. Let me just say this. You may not want to comment, but his fellow justice, Justice Scalia, did. Here's what Justice Scalia said about Justice Thomas and stare decisis. And remember what he said when he was sitting in the same chair you're 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's get it right.'"

SCHUMER: Then Justice Scalia said, "I wouldn't" -- speaking of himself -- "I wouldn't do that."

And it's particularly relevant, because if you believe something is not in the Constitution, at least the way Justice Thomas talks about stare decisis, he'd let the Constitution overrule it and stare decisis would go by the wayside.

And I'm not saying Justice Thomas was disingenuous with the committee when he was here. I'm 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've covered everything I want to do with Justice Thomas.

Yes, here's another quote: "There is a need for stability and continuity in the law. There's a need for predictability in legal doctrine. And it's 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?

ALITO: No, I don't.

SCHUMER: OK, well, let's see who said that one. It was Robert Bork, when he came before this committee to be nominated.

Now, here's 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 quon 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 different context.

But here's 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's not an unrespectable view. It's probably not the majority view of justices, but it's there.

So, for example, it was his view, similar to Justice Thomas, that the Constitution does not protect a right -- that if the Constitution does not protect the right to an abortion -- as you wrote in 1985; we're not talking about how you feel today -- it would be overruled; it should be overruled despite stare decisis.

And one of the things I'm 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 site, but I didn't know what it was.

And 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."

SCHUMER: Now, first, one of the most outstanding of the 20th century with Oliver Wendell Holmes and Benjamin Cardozo, and people you've expressed admiration for, Frankfurter and Brennan and Harlan?

I find it, you know, 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.

ALITO: Well, I certainly was not aware of what he had said about stare decisis when I made those comments.

I've explained those comments. They were made when I was an appointee of President Reagan, and Judge Bork was President Reagan's...

SCHUMER: But you weren't -- excuse me.

You weren't 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?

ALITO: No, but I had been in the Department of Justice at the time.

SCHUMER: I know.

But it was a voluntary interview with some New Jersey news outlet -- is that correct?

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.

SCHUMER: OK.

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 3rd Circuit, something you mentioned yesterday and today. And when you've been on the 3rd 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'm not disputing that here.

But it's also true that when you were on the 3rd Circuit, the more apt analogy in terms of stare decisis would be about 3rd 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 3rd Circuit judge applies to 3rd Circuit decisions. That's pretty fair, right?

ALITO: Yes, and I've tried to follow 3rd Circuit precedents.

SCHUMER: Right. OK.

Although, you have dissented more than most of your fellow judges, but we'll leave that aside.

What I want to show here is how many times when you were on the 3rd Circuit your fellow judges on the 3rd Circuit, whom I'm sure have high respect for you -- I know a lot of them are coming here in a few days and I think that's nice.

SCHUMER: I don't have any problem with that.

(LAUGHTER)

Well, there's been some criticism about it, not by me.

But I just want to show you what they have said when it comes to their view of your respect for 3rd Circuit precedent, stare decisis, as relevant as we can find it for you.

So I'm going to read a few. There are a whole bunch. But in Dia v. Ashcroft -- they're all on this chart, I guess. There are too many, so the print isn't 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, quote, "guts the statutory standard and ignores our precedent. In LePage's Incorporated v. 3M, your opinion was criticized as, quote, "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, quote, "Your dissent overlooks our holding in the instant case and prior cases."

In Riley v. Taylor, the on-bank majority argued that your view ignored case after case relied by the majority and, quote, "accords little weight to those authorities."

In Texas Eastern Transmission Corp., a panel criticized your opinion because, quote, "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 don't have to -- but other cases that are mentioned are United Artists, the Warrington Beauty Time, the Vuskin (ph) Systems. Here's a final one, Rappa v. Newcastle County. Judge Garth, the man I think you clerked for and is regarded as a mentor to you wrote that your majority opinion was, quote, "unprecedented in its, quote, "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."

SCHUMER: So those are just some of the cases in which your own colleagues said you didn't follow stare decisis.

Now there may have been good reason -- you're 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 (inaudible) 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 3rd Circuit, what's going to happen if you should get on the Supreme Court.

Your response because I mentioned a whole lot of cases here.

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 that a Supreme Court decision that had come up, that had been handed down after the most recent 3rd 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 vertical stare decisis, following the Supreme Court. And I don't think there's any dispute. 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.

SCHUMER: Yes, but there's no question that in that situation, Judge Cohen said your opinion was, quote, "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's rather complicated, but he's sure saying, in his view, you didn't follow court precedent.

ALITO: And, Senator, there was this body of 3rd Circuit precedent, 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 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 had a Supreme Court decision intervening. And in that situation, I thought was our obligation -- and I wrote the majority opinion there -- to follow what the Supreme Court had said.

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're going to take precedent into account, but it certainly doesn't necessarily mean where you'd come out.

And let me tell you where I conclude where you'd come out, just sort of summarizing this argument. First, again, greatly disturbing I think to many Americans would be that you won't 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's wrong now -- which would lead one to think that, you know, that you probably believe in it.

Second, you've 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're being disingenuous with us.

SCHUMER: I don't think that at all. But because the concept is somewhat elastic, because it doesn't guarantee that you will uphold precedent, and particularly doesn't 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 3rd 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 doesn't protect the right to an abortion, the fact that respect for precedent and stability doesn't prevent overruling of a past decision, and your own record of reversing or ignoring precedent on the 3rd 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.

Yield back my time.

ALITO: Senator, could I just respond to that question?

SCHUMER: Please. Time is yours.

ALITO: My 3rd 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 have had an agenda to uphold any abortion regulation that came along, I would not have voted as I did in my 3rd Circuit cases.

I have 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.

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 3rd Circuit judge, you were bound by Supreme Court precedent.

You never in the 3rd 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 3rd Circuit, you couldn't, because you were bound by the precedent of the court.

I do not think your 3rd Circuit rulings are dispositive on what you would do should you become a U.S. Supreme Court justice.

Thank you, Mr. Chairman.

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 decision- making process that I described.

ALITO: That's not a formality to me, that's 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.

SCHUMER: It doesn't always, but sometimes...

SPECTER: Let him finish his answer, Senator Schumer.

ALITO: I don't agree with the theory that the Constitution always trumps stare decisis. There would be no room for the doctrine of stare decisis in constitutional law if that were the case.

SCHUMER: But, sir, it can trump stare decisis. It doesn't always, but can. Is that correct?

ALITO: It certainly can. And I think that's a good thing, because otherwise Plessy v. Ferguson would still be on the books.

SCHUMER: Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Schumer.


Senator John Cornyn (R-TX)

CORNYN: Thank you, Mr. Chairman.

Judge Alito, are you familiar with the -- I guess the question that lawyers sometimes pose to demonstrate how unfair a question can be -- when did you stop beating your wife?

ALITO: I'm familiar with that question.

CORNYN: I suppose the reason why...

(LAUGHTER)

Since someone was picking on your mother-in-law, I thought I would inject your wife into this.

The point is this: It's 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?

ALITO: No. The word that appears in the Constitution is liberty.

CORNYN: And outside of let's say the Fourth Amendment, perhaps, does the right to privacy appear explicitly stated in the Constitution?

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.

CORNYN: And the reason it's protected is because the Supreme Court has so interpreted the Constitution. Isn't that correct, sir?

ALITO: That's correct. It's a question of interpretation rather than simply looking at what is in the text of the document.

CORNYN: So to ask you whether the right to free speech, which is explicitly protected under the First Amendment of the Constitution, ask you whether that's in there, and then to 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?

ALITO: Yes. That's my view of it.

CORNYN: And it is, to be more specific, it is what the courts have called penumbral rights. In other words, the old -- I can't remember whether it's Griswold or what case -- no doubt you can -- that talked about this being the emanations at the penumbra -- of the emanations from stated rights in the Constitution.

CORNYN: Can you clarify that for us so we get it correct?

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.

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've been nonresponsive.

But I was -- 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. He said: I cannot remember a nominee being this forthcoming. I appreciate that you've answered nearly every question put to you. Thank you for being so responsive.

And indeed, according to one count, you've 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 applied 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?

ALITO: That's correct.

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 you've 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 on our jurisprudence, Plessy v. Ferguson.

And if the court had, in Brown v. Board of Education, had felt prohibited from revisiting that mistake, then we would still be living under that scar.

CORNYN: 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'll 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 3rd Circuit Court of Appeals, are they 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 to hard to build during your lifetime.

But I was struck, and we'll hear more about the judges who have served with you on the 3rd 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?

ALITO: He was the former chief judge of the 3rd Circuit, and he was a federal judge for many years and greatly respected.

CORNYN: Well, this is what the Harvard Journal of African- American Public Policy, how it described him, in part. It said, "Higginbotham was appointed to the federal circuit bench by President Jimmy Carter in 1977. Higginbotham was also former president of the Philadelphia chapter of the NAACP."

CORNYN: And would it be fair to say that you and Judge Higginbotham, while you served together, you tend to look at the Constitution differently? In other words, could he fairly be described as a liberal?

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, 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.

CORNYN: Well, I wonder if you're 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, quote, "Sam Alito is my favorite judge to sit with on the court. He's 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 ideologue."

Were you aware that Judge Higginbotham had said that about you?

ALITO: No, I wasn't. I was not.

CORNYN: Well, I'm pleased to tell you he did say it, according to the Los Angeles Times. And I think it's 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 3rd Circuit Court of Appeals.

Now, I have some charts, too, like Senator Schumer. I like my charts better than his, but we'll 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.

CORNYN: And that's 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' 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've heard here today -- is that 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, you know, 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, that the national government was crippled because it really had no power and it 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 it was ratified -- a federal Constitution. But you already alluded to this earlier.

CORNYN: This Constitution takes into account that not only will the national government have certain powers, but there also be some powers still reserved to the states.

In fact, it is a fact, is it not, sir, that when we talk about federalism, really what we're 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?

ALITO: Yes.

That's the structure of the Constitution. The federal government has enumerated powers. Some of them are broad. But those are the powers the federal government has. And the structure is that everything else was reserved for the states.

CORNYN: And so when someone suggests that you're taking a crabbed or cramped or unorthodox view toward congressional power because you say that it's 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 state?

ALITO: Well, that's 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, seemed to me to be as close to the situation in Lopez as any case that I was aware of.

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.

CORNYN: But it's interesting, because if Sandra Day O'Connor was in the mainstream on the commerce clause, the interpretation of the commerce clause, then so is Judge Sam Alito.

As a matter of fact, the Lopez case that -- 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 to recognize that there are limits to congressional power. But Lopez re-established, or perhaps restated, that understanding.

Justice O'Connor joined the majority in the Lopez decision, did she not, sir?

ALITO: Yes, she did.

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' 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 correct?

ALITO: I agree with it. She said that Congress' 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's what I tried to do.

CORNYN: So when Justice O'Connor held in Lopez that Congress cannot 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 United States Supreme Court when you wrote your opinion in Rybar, is that correct?

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.

ALITO: 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.

CORNYN: And you didn't say the state couldn't criminalize possession of a machine gun, did you?

ALITO: The state could. And I think the great majority certainly have legislation of that nature.

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?

ALITO: Yes, that was the strong point that I made in the dissent, that if Congress had made findings, it would have been a very different case for me.

CORNYN: The interesting thing to me about Rybar, as well, you have been accused of always ruling for the big guy or the government, but Rybar, you decided for the person accused of illegally possessing the machine gun.

ALITO: Well, that's correct.

CORNYN: You didn't rule for the government?

ALITO: No, I did not. I thought the government had not come forward with evidence to support the position that they were arguing.

CORNYN: Well, you've also been -- there's another question about affirmative action cases. We've 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?

ALITO: I would. Taxman was a case that our court considered en banc. It means 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.

ALITO: 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.

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's 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 proceeding.

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 you, in the memorandum for which you've been disparaged many times 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?

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 Thornburg. 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 Thornburg case were along the lines of the undue burden standard, I think, that she later adopted. I was arguing that the particular provisions should be challenged on their own terms.

One of 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.

CORNYN: Well, let's talk about Casey. That was a 1992 decision by the United States Supreme Court -- is that correct, sir?

ALITO: Yes.

CORNYN: And essentially what happened in that, Justice Kennedy, Justice Souter and Justice O'Connor -- the model Supreme Court justice -- essentially scuttled the essential 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, Lawrence Tribe I believe, 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?

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.

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's been some quotes about the importance of reliance interests in terms of giving it the benefits of a 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?

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.

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.

CORNYN: Isn't that roughly what...

ALITO: Yes, that's what they held.

CORNYN: Well, I guess my point is that, if, on at least three counts on the basis of the Congress's commerce power and 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.

And I would just ask that if Justice O'Connor is a model Supreme Court and therefore, by definition, is not outside the mainstream, then it strikes me that Sam Alito is not outside the mainstream either.

Let me ask you now -- we can leave this sitting up here for a minute -- but I have a few more minutes left. Another thing you've been criticized for is your unlimited view of presidential power -- is the way it's been phrased.

The suggestion is, somehow, you're always going to defer to the president and the executive branch when the legislative branch and the executive branch vie for authority -- whether it's in the intelligence-gathering area, the National Security Agency and this electronic eavesdropping, 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.

Now, you and, I think, Senator Graham talked a little bit about the Hamdi decision where the United States Supreme Court said that 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 Qaida, the supposed perpetrators of the 9/11 attacks -- the question came up whether that included an authorization by Congress to detain terrorists without charging them with a crime.

CORNYN: And my understanding is, in that case, that the Supreme Court, it was fractured, but the plurality opinion that Justice O'Connor joined 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?

ALITO: Yes. That's exactly correct. 18 USC 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.

CORNYN: Well, I appreciate your 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 a 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's 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, liberal.

CORNYN: 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?

ALITO: Yes, that's correct. This was 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.

CORNYN: But Judge Scalito might -- Alito, excuse me...

(LAUGHTER)

After talking about Judge Scalia -- you know what I was thinking, in the back of my mind, a nickname that you've 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'll 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?

ALITO: I think that's correct, Senator.

I think that all of these labels, When you're trying to describe how judges behave, how they do their work, have their limitations and different people use them in different ways.

CORNYN: Thank you very much.

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's getting late.

(LAUGHTER)

And 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 that we can all agree about your stamina and your poise and your good humor, and even some subtle humor.

(LAUGHTER)

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)

ALITO: I wasn't asked whether she had stopped beating me.


Day 3 January 11, 2006 Source: http://www.washingtonpost.com/wp-dyn/content/article/2006/01/11/AR2006011101148.html

Turbin Durbin (D-IL)

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 at the end of the day, we'll feel that we've 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's a starting point for me when it comes to appointments to the Supreme Court.

DURBIN: 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 couldn't 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 11th Amendment. I'd ask you, at this point, you obviously support Brown v. Board of Education -- do you, and the finding of the court?

ALITO: Certainly, Senator.

DURBIN: And do you believe that the Constitution protects the right of children in America to be educated in schools that are not segregated?

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.

DURBIN: And as you read that Supreme Court decision, that historic decision, they find the basis for that decision the equal protection clause of our Constitution.

ALITO: Yes, they did. 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.

DURBIN: The reason I asked 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 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.

DURBIN: And I couldn't understand your conclusion.

You conceded the fact that we have free speech because it's explicit in our Constitution, 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 wouldn't answer. You wouldn't give a direct answer.

On two Supreme Court cases, Griswold and Brown now, you have said, just right 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'm 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. You said those were my views then, they're 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's 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 a right to an abortion, you've been unwilling to distance yourself and to say that you disagree with that.

DURBIN: 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 freedom, especially our right to privacy. And for you to say that you're for Griswold, you accept the constitutional basis for Griswold, but you can't bring yourself to say there's a constitutional basis for the right of a woman's privacy when she is deciding -- making a tragic, painful decision about continuing a pregnancy that may risk her health or her life, I'm 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?

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 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 black (sic) 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 the principle, the heart of 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.

ALITO: But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons 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 3rd 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.

What I have said about Roe is that if it were -- if the issue were to come before me, if I'm 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.

Thornburg was decided and 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 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 decision-making.

DURBIN: Well, 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 extended 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.

DURBIN: 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 a most general statement that you believed 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?

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.

And it is my -- 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. Secondly, 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.

ALITO: 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's a very important precedent...

DURBIN: Is it the settled law of the land?

ALITO: If "settled" means that it can't be reexamined, 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.

DURBIN: How do you see it?

ALITO: I have explained, Senator, as best I can how I see it.

It 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 3rd 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.

DURBIN: I would say, Judge Alito, that 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 try to find ways to reduce the incidence of abortion.

But as I listen to the way that you've answered this question this morning and yesterday, and the fact that you have refused to refute that statement in the 1985 job application, I'm concerned.

DURBIN: I'm 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 doctors who help them.

That is very troubling, particularly -- and 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 didn't 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 won't get into the Federalist Society because every time I say those words, they go into a rage that I'm somehow guilty of McCarthy- like tactics, asking, "Who are these people in the Federalist Society?" I won't touch it.

Let me just go to the Concerned Alumni of Princeton. I didn't understand your answer.

Your answer said something about ROTC being discontinued at Princeton University. I know you were involved in ROTC. I'm told that by the time you filled out this application ROTC had been restored.

I don't believe you were suggesting that bringing more women and minorities to Princeton would somehow jeopardize the future of ROTC. I don't know that that's 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's what she went on to say: "When I saw Concerned Alumni of Princeton on that 1985 job application, I was flabbergasted," she said.

DURBIN: "I was totally stunned. I couldn't believe it. CAP made it clear to women like me 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 at 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?

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 wracked 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 repeated -- if I had renewed my membership, for example, over a period of years, I'm sure I would remember that.

ALITO: 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 during the time of the units, at the time when I was a student there, struck me as a very bad thing for Princeton to do.

DURBIN: Did women and minorities have anything to do with that?

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 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.

DURBIN: Let me ask you, if I might, to reflect on a couple other things. You're a Bruce Springsteen fan?

ALITO: I am to some degree, yes.

DURBIN: I guess most people in New Jersey would be. They should be.

ALITO: There was a movement some time 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.

DURBIN: We'll 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's a great line.

I want to ask you about the crushing happened of fate in several of your decisions. Riley v. Taylor: It was the murder conviction of an African-American defendant.

And the question was raised as to whether he had a fair trial. The people who were arguing in his defense said: 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, quote, "five of the past six presidents of the United States have been left-handed," end of quote.

That's a troubling analogy. And I'm not the only one troubled. Your colleagues in the 3rd Circuit were troubled, as well.

Here's what they said, "The dissent" -- your dissent -- "has overlooked the obvious fact there's no provision in the Constitution that protects persons from discrimination based on whether they're right-handed or left-handed."

DURBIN: "To suggest any comparability to striking a juror 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?

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 says 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 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.

ALITO: 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.

DURBIN: I'd like to say, Judge, in many of these tough questions, as I read through 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; sexually assaulted by his co-workers. And according to his deposition testimony, he said they attempted to rape him.

I could read to you what's 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'm not going to read it into the record, but I bet you remember it.

And when it came to this case as 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.

DURBIN: 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 and denied him -- at least in your view -- 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?

ALITO: Well, Senator, the district court thought that the defendant in that case 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.

DURBIN; I would just say that you're 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.

DURBIN: 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. the Secretary of Labor case that I referred to in my opening statement. It's a timely case. It's about mine safety. We know what happened in West Virginia a few days ago and yesterday in the state of the Kentucky, where there are serious questions being raised about whether there's 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 that way, that the requirements of inspecting this mine location, this treatment of coal, would not be subject to federal and state inspection.

Again, when you dissented, and when given the chance, 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's 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?

ALITO: And the facility that was involved in that case was not a mine as a layperson would think of a mine.

ALITO: 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 the 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?

DURBIN: Judge, I would say that your opinion did not prevail.

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 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 these federal and state. In this case, the Federal Mine Safety Administration did not have jurisdiction.

I find this as a recurring pattern, and it raises the question in my mind whether the average person, the dispossessed person, the poor person who finally has 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 3rd Circuit, and that is a concern which I will continue when we have further questions in the next round.

Thank you, Mr. Chairman.

SPECTER: Do you care to respond, Judge Alito?

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.

ALITO: And I could mention a number of them. Let me just mention Shore Regional High School, because I think 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; 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.

And that's 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.

SPECTER: Thank you very much, Judge Alito.


Senator Tom Coburn (R-OK)

COBURN: Thank you, Mr. Chairman.

Good morning. Long day.

I'd 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's been a lot made, and here's a list of nine cases with specifics where he, in fact -- one of these I think he mentioned, but the others, and I would like unanimous consent.

SPECTER: Without objection, they will be made a part of the record.

COBURN: Actually, there's 13 cases.

And I also want to go back and quote from somebody who was a member of CAP, and this is Judge Napolitano. He's a commentator on one of the news shows.

And I'd 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'd like for those to be admitted as well.

As you know, I am not an attorney.

COBURN: Sometimes it's very disadvantageous on this panel, but at times it's advantageous.

So I have this little thing that I have to depend on, and I, kind of, read it for what it says. And as you talk about stare decisis, is that mentioned anywhere in here?

ALITO: It is not expressly mentioned in the Constitution.

COBURN: It's actually a procedure of common English law, correct?

ALITO: That's its origin, yes.

COBURN: That's 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?

ALITO: I don't know the exact figure, Senator.

COBURN: I think it's around 170-some times, affecting some 225 cases, I believe. That's close. That may not be exactly accurate.

So, in fact, it's a tool used to help us with the law, but our founders didn't say, "You have to use stare decisis in this," did they?

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 in accordance with fundamental judicial procedures as they had been known...

COBURN: At the time.

ALITO: ... at the time.

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.

And I was interested in Senator Kyl asked you yesterday about foreign law, something that is 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.

COBURN: As a matter of fact, the obligation is to use the United States law, the Constitution and the treaties. And that's exactly what Article III, Section 2, says.

And so there's no reference at all to foreign law in terms of your obligations or your responsibility. And a 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."

So the question I have for you, and I couldn't 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 don't think it is proper for the Supreme Court to use foreign law.

And I personally believe that that's an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice.

And I just wondered if you had any comments on that comment.

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.

ALITO: 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. And I don't think it's appropriate to look to foreign law.

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's 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 policy-making 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 policy-making 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. If you focus too narrowly on that, you may distort the big picture.

So for all those reasons, I just don't think that's a useful thing to do.

COBURN: It actually undermines democracy, because you get to pick and choose. And the people of this country don't get to pick and choose that law. 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'm sorry Senator Durbin left. I wanted to razz him a little bit. You've taken quite a bit of criticism on things that you've written and said in 1985.

COBURN: 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's important that the American people -- that if he has the ability to change his mind on something he wrote in 1989, certainly you have the ability to say something was inaptly put.

And so this is just Senator Durbin. I'm teasing him a little bit. But I think it's 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 on the other that are adamantly pro-abortion, pro-the destruction of human life today, that have changed their mind, changed their position.

So it's hard to be critical of you on something in 1985, have written something, when many of us have backtracked on things that we've said through the years.

And so I think it puts a little bit of perspective into where we're 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.

On January 22nd, when Roe was decided, court also decided Doe v. Bolton. In that case, the court ruled that a woman's right to abortion could not be limited by the state if abortion was sought for reasons of maternal health.

COBURN: And, as a practicing physician, I agree with that. I've 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, emotion, psychological, familial and the 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.

And 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. It followed women, 600 women for 35 years, from the time of abortion, that studied ill health effects.

SPECTER: Without objection, it will be made a part of the record.

COBURN: I would also like to enter into the record a Breast Cancer Institute study, an 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 complications.

SPECTER: All of those documents, without objection, will be made a part of the record.

COBURN: It's amazing what we don't 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 can't 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.

And there seemed to be a blinding contradiction during some of your questions that were presented by my colleagues yesterday; they raised concerns that you're too close to the executive and too supportive of the 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 argued that you should have the same ideology as Justice O'Connor to maintain the balance on the court.

I have trouble figuring out how they can have it both ways. That's 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?

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.

COBURN: And the president, by being elected -- the only person in this country that's elected by the whole country -- is given that honor and privilege as well as that responsibility. And then we have the responsibility to advise and consent to that. Is that correct?

ALITO: That's correct.

COBURN: But nowhere in the Constitution, nor by precedent -- as a matter of fact, the precedent's just exactly the opposite of that -- is it stated that somebody has to have the same philosophy as somebody that's coming off the court.

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.

COBURN: So the fact that you have to fit Sandra Day O'Connor mold is really a misapplication. There is no precedent that would say that?

ALITO: 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.

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 had 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 on to the court, even though many people knew that her philosophy was very different than theirs. Isn't that true?

ALITO: The vote was 90-something to a small number; I know that, yes.

COBURN: A lot of times in these hearings you don't get a chance to say why would you want to be a justice of the Supreme Court of the United States?

COBURN: 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?

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 there are 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.

And 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. And 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 president.

ALITO: The Congress can pass a law -- can 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 tension 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. That's an important part of the role. And that also has to be informed by this sense of self-restraint.

COBURN: Thank you.

During Judge Roberts' 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 American people can see your heart.

This booklet's 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's important to you in life?

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.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And 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 result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, 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 that 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 admire very greatly who've 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.

COBURN: Thank you.

Mr. Chairman, I think I'll yield back the balance of my time at this time, and if I have additional questions, get them in the next round.

SPECTER: Thank you very much, Senator Coburn.

We'll now proceed to the second round of questioning, with each senator having 20 minutes. And we'll take 20 minutes more, and then we'll take a break.

SPECTER: 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 and judicial legislation in 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, and only scratched the surface, but our time is limited -- on authority of the president under war powers, Article II, contrasted with Congress' authority to legislate for privacy under the Foreign Intelligence Surveillance Act.

SPECTER: 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. And 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're a judge; you may be a Supreme Court justice. Is there something we're missing? Do you judges have some method of reasoning which is superior to the method of reasoning of the Congress?

ALITO: I think the branches of government are equal and all the officers in all the branches of government take an oath to the same constitution.

SPECTER: Equality on method of reasoning?

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."

ALITO: I think that what the court was getting at there in Morrison was that it was applying a certain standard, certain legal standard, as to whether something substantially affected commerce. And I think that's what they were getting at.

SPECTER: 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?

ALITO: I think that Congress's ability to reason is fully equal to that of the judiciary, and I think that...

SPECTER: And you think that even after appearing here for a day and a half?

(LAUGHTER)

ALITO: I have always thought that. And nothing has changed by mind about it.

HATCH: We're starting to worry about you.

SPECTER: Let me...

(LAUGHTER)

That's on Senator Hatch's time.

(LAUGHTER)

Let me take up the Americans with Disability Act. On two decisions within a couple of years of each other, one where the Supreme Court declared unconstitutional the Americans with Disabilities Act as it applied to employment, upholding the act as it applied to access to facilities.

And Justice Scalia had a ringing dissent when the court imposed a standard of congruence and proportionality -- a very difficult standard which you wrestled with in the family leave case.

SPECTER: The congruent and proportionate 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. And Justice Scalia said that it was a thinly veiled invitation to judicial arbitrariness and policy-driven decision making. And Justice Scalia criticized the majority opinion for functioning as a taskmaster to see to it that Congress had done its homework.

And here again there was a voluminous record -- 13 congressional hearings, 30,000 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're dealing -- and it maybe worthy 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's a fair test as to what we're to try to figure out what the Supreme Court is later going to say is congruent and proportionate?

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.

SPECTER: Well, how about just fair notice? Never mind mathematical certainty.

ALITO: It addresses a difficult problem the court has grappled with over the years, and that is the scope of Congress' authority under Section 5 of the 14th Amendment to pass legislation enforcing the provisions of the 14th Amendment.

One argument that has been made, which would represent a very narrow interpretation of congressional power -- and this is basically the position that Justice Scalia took in the dissent that you mentioned, is that Congress's authority doesn't extend any further than remedying actual violations of the 14th Amendment; that 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...

SPECTER: Judge Alito...

ALITO: ... of the 14th Amendment.

SPECTER: ... what's wrong with the test of Maryland v. Wirtz, and Gonzales v. Raich, as you take a look at power under the commerce clause and to be applicable to our legislation under the Americans With Disability Act?

SPECTER: 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's up to the Congress to have hearings, up to the Congress to find facts, up to the Congress to find out what goes on in the real world.

And 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 to the protection of commerce" -- could apply as well to disability -- "our investigation is at an end."

What's wrong with that test? Would you subscribe to that test over the proportionate and congruence test?

ALITO: There are a number of tests that have been used and proposed over the years in this area.

ALITO: 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 has been followed by a number of subsequent decisions.

SPECTER: Where did it come from? Where did the Boerne test on proportionate and congruence come from, if not thin air?

ALITO: 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 5 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 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. I am sure it is a question that is going to be -- that will come up in future cases.

SPECTER: We're 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 or challenging our method of reasoning.

SPECTER: We're considering legislation which would give Congress standing to go into the Supreme Court to uphold our cases.

Right now the solicitor general does that. He's in the executive branch. We don't want to derogate the solicitor general in your presence, Judge Alito, but the thinking that we've had was to speak about your decisions and the court's decisions on the floor of 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 could 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's 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 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.

And then this recent legislation says, "The District of Columbia Court of Appeals shall have the exclusive jurisdiction to determine the validity of any final decision by the Combatant Status Review Tribunal."

SPECTER: 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 was exclusive jurisdiction, there's no jurisdiction of the Supreme Court.

This may come before the court. 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?

ALITO: In the area of habeas corpus, there are a number of important principles that have to be considered in reviewing any legislation that someone contends has altered habeas jurisdiction.

The first is that the courts said in a case called INS v. St. 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, 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.

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.

SPECTER: I've been pushing it for a long time. I'm personally convinced that it's going to come some day. I'm not sure whether it'll come during my tenure in the Senate. More likely it'd come during the tenure of Chief Justice Roberts in the Supreme Court, or your tenure, if confirmed.

The Supreme Court said in the Richmond newspaper case v. Virginia, 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 of 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 of the court, six members. Congress sets the size of the court, 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 has been on television quite a bit themselves. When Justice Scalia and Justice Breyer come on TV, it's a pretty good show, not much surfing when that happens, like surfing when my turn comes to question.

But this proceeding on confirmation of Supreme Court justices has attracted a lot of attention. As I said to you yesterday, I'm tired of picking up the front page everywhere and seeing your picture on it.

Brit 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 ear sets on to listen to the proceedings.

SPECTER: 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?

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 should allow television cameras in our court room. And I argued that we should do it. I thought that it would be a useful...

SPECTER: Really? You have taken a position on this issue?

ALITO: Well, I did, and this is one of the matters on which I ended up in dissent in my court.

(LAUGHTER)

The majority was fearful that our Nielsen numbers would be in the negative.

(LAUGHTER)

SPECTER: Could you promise the same result?

(LAUGHTER)

Could you promise the same result, if confirmed, to be a dissenter? Will the court allow TV?

GRASSLEY (?): Be careful how you answer.

SPECTER: Be careful how you answer everything, as you have been.

(LAUGHTER)

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 room over his dead body.

So I wouldn't want to comment on it...

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 seven seconds left, will you keep an open mind?

ALITO: I will keep an open mind, despite the position I took on the 3rd Circuit.


Specter vs Kennedy Fight

KENNEDY: Well, 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 the membership in this, sort of, radical group, and why you listed it on your job application, are extremely troubling. And, 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 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 hesitancy or reason for us not to look at those documents?

ALITO: They're not my documents, Senator, and I have no opinion about it whatsoever.

KENNEDY: Do you think they'd be helpful?

ALITO: Senator, I don't believe I had any active involvement with this group.

I've wracked 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.

KENNEDY: Well, 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.

KENNEDY: And I want to do that at an appropriate time. I'd move that the committee go into executive session for the purpose of voting on the issuancing of -- the sole purpose for issuing the subpoena of those records.

SPECTER: Well, we'll consider that, Senator Kennedy. There are many, many requests which are coming to me and many quarters. And, quite candidly, I view the request -- if it's really a matter of importance, you and I see each other all the time and you have never mentioned it to me.

And I do not ascribe a great deal of weight -- we actually didn't get a letter, but...

KENNEDY: You did get a letter. Are you saying...

SPECTER: Well, now wait a minute; you don't know what I got. I'm about to...

KENNEDY: Yes I do, Senator, since I sent it.

SPECTER: Well, the sender does not necessarily know what the recipient gets, Senator Kennedy. You are not in a position to say what I receive.

If you'll bear with me for one minute.

KENNEDY: But I am in a position to say what I sent to you on December 22.

SPECTER: You're in a position to tell me what you sent.

KENNEDY: I renew my request, Senator. And if I'm going to be denied, then I'd 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 seeing us these issues. We've gone over the questions and we are entitled to get that kind of information. And if you're going to rule it out of order, I want to have a vote on that here on our committee.

SPECTER: Well, don't be premature, Senator Kennedy. I'm 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's a big difference between what's mailed and what's received. And you know that.

We're going to move on now.

Senator Grassley...

KENNEDY: Mr. Chairman, I'd appeal the ruling of the chair on this.

SPECTER: There has been no ruling of the chair, Senator Kennedy.

KENNEDY: Well what is the -- my request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress -- that purpose and that purpose only.

And if I'm going to be denied that, I'd want to give notice to the chair that you're going to hear it again and again and again and we're going to have votes of this committee again and again and again until we have a resolution.

I think it's...

SPECTER: Well, Senator Kennedy, I'm not concerned about your threats to have votes again, again and again. And I'm the chairman of this committee and I have heard your request and I will consider it.

And I'm not going to have you run this committee and decide when we're 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 in due course.

Now we'll move to Senator Grassley for 20 minutes.

GRASSLEY: Well, we have gone over the same ground many times. I suppose maybe to some extent both sides are guilty of that. But we have an old saying in the Midwest about if a horse is dead, quit beating it.

GRASSLEY: And I think several horses have been beaten to death, particularly on the other side. And you've been very consistent in your answers, and I thank you. And I think that that speaks to the intellectual honesty of your positions.

It's kind of like we're in the fourth quarter of a football game and you're the quarterback and your team is way ahead here in the fourth quarter and opponents are very desperate, trying to sack you and aren't doing a very good job of it. And they haven't hit you all day, now for two days.

And you're going to keep getting these last-minute Hail Marys thrown at you. So just bear with us.


Senator Lindsay Graham (R-SC)

GRAHAM: Thank you, Mr. Chairman.

Judge Alito, maybe we could continue with the Vanguard issue just for a moment. And I know you've been asked every conceivable combination of questions.

But Senator Feingold is very sincere about ethics in government. He practices what he preaches and he's been one of the leaders of trying to make this place operate better.

And my impression of you is that you're a good model for judges in terms of ethical conduct, based on what everybody says who knows you. I mean, I don't 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're just, really, sort of, what we want in a judge. And maybe that's not enough, but that's a pretty good start.

I don't 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?

GRAHAM: I am baffled as to why you would make a conscious decision in this situation not to recuse yourself. Do you have an explanation?

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.

GRAHAM: Well, I've been asking myself that question quietly. What is in it for this guy? Why would he bring all this grief upon himself consciously? Is it to intentionally break a promise to the Senate so you'd go through hell for three days? I don't think so.

(LAUGHTER)

So I'm going to accept you at your word, like the ABA, and I'm going to move on. And I don't know if anybody else will.

Now, your days at Princeton. The more I know about Princeton, it's an interesting place.

(LAUGHTER)

What is an eating society?

ALITO: The eating clubs are privately owned facilities that upper classmen join for the purpose of taking their meals. The first two 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.

GRAHAM: What is a selective eating society?

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.

GRAHAM: Were you a member of a selective eating society?

ALITO: No, I was not.

GRAHAM: Did people not like you or you just didn't apply?

(LAUGHTER)

ALITO: I didn't apply.

GRAHAM: Well, let me tell you who did apply. Donald Rumsfeld was a member of a selective eating society at Princeton. And that's 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.

GRAHAM: And I promise you I'll get to the bottom of that before this is all done.

(LAUGHTER)

Now, this organization that was mentioned very prominently earlier in the day, did you ever write an article for this organization?

ALITO: No, I did not.

GRAHAM: OK.

And some quotes were shown, from people who did write for this organization, that you disavowed. Do you remember that exchange?

ALITO: I disavow them. I deplore them. They represent things that I have always stood against and I can't express too strongly...

GRAHAM: If you don't 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're disavowing this now because it doesn't look good.

And really what I would look at to believe you're not -- and I'm going to be very honest with you -- is: How have you lived your life? Are you really a closet bigot?

ALITO: I'm not any kind of a bigot, I'm not.

GRAHAM: No, sir, you're not. And you know why I believe that? Not because you just said it -- but that's a good enough reason, because you seem to be a decent, honorable man. I have got reams of quotes from people who have worked with you, African American judges -- I've lost my quotes.

Judge Higginbotham -- I don't know where they're at. But glowing quotes about who you are, the way you've 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.

You know why I believe you when you say that you disavow those quotes? Because 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're sitting. And we're going to go through a bit of this ourselves as congressmen and senators.

People are going to take a fact that we got a campaign donation from somebody who's found out to be a little different than we thought they were -- and our political opponent's going to say, "Aha, I got you!"

And we're going to say, "Wait a minute. I didn't know that. I didn't take the money for that reason."

And you know what? I'm going to believe these senators and congressmen for the most part, because that's the way we do our business. We meet people here every day. We have photos taken with people -- and sometimes you wish you didn't have your photo taken.

But that doesn't mean that you're a bad person because of that association.

Judge Alito, I am sorry that you've had to go through this. I am sorry that your family has had to sit here and listen to this.

Now 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.

GRAHAM: 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.

And 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've put some things down on an application about your view of the law in Roe v. Wade and it's 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' 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 nine months. Also, in the balance is a woman's autonomous charge of her full life's course, her ability to stand in relation to men, society and to stay 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 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 pre-viability stage of pregnancy from taking sides and being required to provide funding for the abortions of poor women."

If that writing doesn't suggest an allegiance to Roe, that writing doesn't suggest from her point of view as the author of that article not only is Roe an important constitutional right, that government ought to pay for abortions in certain circumstances.

GRAHAM: If she were here today and a Democratic 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 in for a very rough experience.

And what's 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?

ALITO: I don't think you would, Senator. I think it is established that prior writings of a member of the judiciary do not require the recusal of that member of the judiciary.

GRAHAM: I think you're absolutely right, Judge. And let me tell you what she said at the hearing when it was her time to sit where you're sitting. "You ask 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 I think our pro-choice colleagues share, a sentiment that I disagree with because I think the decision does affect humanity, and that's the unborn child.

I don't question her religion. I don't 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 didn't 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've 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're going to get. You're going to get confirmed. And it's not going to be 96. Judge Roberts got 78, and I'm afraid to say that you're probably going to get less.

To my colleagues, I know abortion is important. It's important to me. It's important to you. I know it's an important, central concept in our jurisprudence. But we can't build a judiciary around that one issue.

GRAHAM: 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 can vote no; you can use any reason you would like.

I just beg my colleagues: Let's don't go down a road that the country can't sustain and the judiciary will not be able to tolerate.

People set aside her writings, 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're first round NFL draft picks, but I don't know what you're going to do 10 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'll never be disappointed in you if you do your job as you see fit.

The last thing I'm going to read -- do you know Cathy Fleming?

ALITO: I do. She was an attorney and supervisor in the U.S. Attorney's office in New Jersey.

GRAHAM: Did you ask her to write a letter on your behalf?

ALITO: I did not, no.

GRAHAM: "Judge Alito did not ask me to write this letter. I volunteered."

(LAUGHTER)

I'm glad you said that, by the way.

(LAUGHTER)

"I'm a lifelong Democrat. I am the president-elect of a national women's bar association. I chaired 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's thoughtful; he's brilliant; he's measured; he's serious; and he's conscious of the awesome responsibilities imposed by his position.

"I cannot think of better qualities for a Supreme Court justice. It is my fervent hope that politics will not prevent this extraordinary, capable candidate from serving as associate justice on the United States Supreme Court."

GRAHAM: I share her hope.

Thank you. I yield back my time.


Day 4 January 12, 2006 Source: http://www.washingtonpost.com/wp-dyn/content/article/2006/01/12/AR2006011201031.html

Senator Arlen Spector (R-PA)

SPECTER: The committee staff, accompanied by representatives of Senator Kennedy, went through the Rusher files yesterday, finishing up their work, I'm 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 contain canceled checks for subscriptions to CAP's magazine, Prospect, but none from Judge Alito.

The files contain dozens of articles, including investigative exposes 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 contain lists of the board of directors, the advisory board and the contributors to both CAP and Prospect magazine. But none of the 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's not even mentioned in the minutes.

The files contain dozens of issues of CAP's magazines, but nones of the articles was written by, quoted or mentioned Samuel Alito.

SPECTER: CAP founder William Rusher said, quote, "I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP, if at all."


American Bar Association Rated Judge Sam Alito Highly Qualified

SPECTER: And the Senate is not in session and all the members of the committee have other commitments. And it is projected that we will finish today, but we'll 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's an attorney with the law firm bearing his name; experienced in civil litigation, professional negligence and domestic relations; undergraduate and law degree from Syracuse University; of 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're about to describe in reaching evaluation of a Supreme Court nominee and the importance of your judgments. So we thank you and Mr. Payton and Ms. Tucker for your public service.

Now, Mr. Tober, the floor is yours.

TOBER: Thank you, Your Honor.

Thank you, Mr. Chairman, members of the committee.

My name is Stephen L. Tober of Portsmouth, New Hampshire. It is my privilege to chair the American Bar Association's Standing Committee on 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.

TOBER: Our committee conducts a thorough, nonpartisan, non- ideological 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 have 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.

TOBER: 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 a 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.

SPECTER: Without objection, they will be made part of the record.

TOBER: Thank you, sir.

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 even-handed 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.

TOBER: 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.

And with that, thank you for the opportunity to present these remarks.

SPECTER: Thank you very much, Mr. Tober for your work and for ending right on the button, five minutes to a T.