CQ Transcriptions
Wednesday, January 11, 2006; 12:46 PM

JANUARY 11, 2005 

SPEAKERS: 

U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN 

U.S. SENATOR ORRIN G. HATCH (R-UT) 

U.S. SENATOR CHARLES E. GRASSLEY (R-IA) 

U.S. SENATOR JON KYL (R-AZ) 

U.S. SENATOR MIKE DEWINE (R-OH) 

U.S. SENATOR JEFF SESSIONS (R-AL) 

U.S. SENATOR LINDSEY O. GRAHAM (R-SC) 

U.S. SENATOR JOHN CORNYN (R-TX) 

U.S. SENATOR SAM BROWNBACK (R-KS) 

U.S. SENATOR TOM COBURN (R-OK) 

U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER 

U.S. SENATOR EDWARD M. KENNEDY (D-MA) 

U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE) 

U.S. SENATOR HERBERT KOHL (D-WI) 

U.S. SENATOR DIANNE FEINSTEIN (D-CA) 

U.S. SENATOR RUSSELL D. FEINGOLD (D-WI) 

U.S. SENATOR CHARLES E. SCHUMER (D-NY) 

U.S. SENATOR RICHARD J. DURBIN (D-IL) 

WITNESSES: 

JUDGE SAMUEL A. ALITO 

NOMINATED TO BE AN ASSOCIATE JUSTICE 

OF THE U.S. SUPREME COURT 

[*] 


SPECTER: The Judiciary Committee will now proceed with the confirmation hearing for Judge Alito for the Supreme Court of the United States. 

Welcome back, Judge Alito. 

We have three members who have not had their first round of questioning, 30 minutes. We will proceed there. And then we will have a second round of questioning for 20 minutes each. 

I expect we'll need to work a long day today. It's my hope that we might finish the questioning of Judge Alito. That might be overly optimistic. We will see how things go. 

Senator Durbin, you're recognized for 30 minutes. 

DURBIN: Thank you very much, Mr. Chairman. 

LEAHY: Before we start the clock on Senator Durbin, if I might -- some questions. 

One, I admire the stamina of both the nominee and his family. But a number of us have been troubled by what we see as inconsistencies in some of the answers, and we're going to want to go into those in some depth: on the issue of one person, one vote; Vanguard recusal; unitary theory of government; CAP; and so on. 

I want to clear up in my own mind and the mind of many over here what we see as inconsistencies. I know many have announced up here exactly how they're going to vote before they even asked questions. I'm one of the one I make up my mind after asking the questions, so there will be a number more. 

SPECTER: Well, thank you, Senator Leahy. 

SPECTER: I appreciate the comment. 

There are many issues. Judge Alito has responded for seven and a half hours so far, and we're going to have another hour and a half on opening statements and then with each senator having 20 minutes on a second round there are six more hours. 

So we'll see if he has covered the waterfront. And this will be a full and fair hearing. We will give every opportunity to ask the questions. 

LEAHY: Mr. Chairman, with you as chairman, I know it will be a full and fair hearing. And that's one thing that every single Democrat on this side is aware of. 

SPECTER: Well, I think that's very important for the nominee, for the committee and for the country. And we will do that. 

The adjunct to full, fair is dignified, and I think so far we're on track. 

OK, Senator Durbin, keep us on track. 

Senator Durbin's recognized for -- we'll restart the clock at 30 minutes. 

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 Brownback? 

BROWNBACK: Thank you very much, Mr. Chairman. 

Good morning, Judge Alito, Mrs. Alito, family members. Good to have you here. 

I've got a number of areas I'd like to ask you questions about, and I'm hopeful we can get through them and maybe reduce the need of time in the second round, which would probably be pleasing to your ears. 

I want to first go at this area, because it seems to keep coming up, that I think is really not applicable and not reflective of your record, that you always take the side of the big institution and against the little guys, as you just stated. 

And then, I want to get into a number of areas of constitutional law, some of which that you have written on, religious freedom-type cases, takings cases. I'd like to get into some of these areas. 

But I want to enter into the record, Mr. Chairman, a letter from a former law clerk of yours, David Walk, dated January 6, 2006. David worked with you in the New Jersey U.S. Attorney's Office. I don't know if you remember David or not. 

ALITO: I do. He was a fine attorney. 

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

BROWNBACK: As a lifelong Democrat, former member of the ACLU, and it talks about how fair you were to everybody's rights. 

But then he cites the case of Franklin Igbonwa. This was a Nigerian set to be deported for drug dealing who had testified against other Nigerian drug dealers and was fearful of being deported; that he would be killed once back in Nigeria. 

The other two judges said his case -- he shouldn't be believed on the face of it. You said he should and that the trial court should have given more deference to this Nigerian to be deported. This was somebody that David Walk represented. 

Talk about a little guy and a case, and that's one that is cited in this particular record and letter that I would hope my colleague from Illinois could take a chance at, because it's a legitimate point of view saying, "Well, it looks like you always take one side or the other." Here's where another side was taken. 

And then here's a letter from another individual, worked with you, Cathy Fleming, lifelong Democrat, president-elect National Women's Bar Association; gives an unqualified endorsement of you. 

And she says, "But by providing my credentials as an outspoken woman's rights advocate and liberal-minded criminal defense attorney, I hope you will appreciate the significance of my unqualified and enthusiastic recommendation of Sam Alito for the Supreme Court." 

I think one can, kind of, look in the past and try to say, "Well, OK, there's this problem, there's that." But then, when people that know you well put their names to letters saying differently, I think that's also something we should consider. 

And I'd ask that that letter be put into the record as well. 

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

BROWNBACK: Thank you. 

Judge Alito, the Supreme Court has gotten a number of things wrong at times, too. 

BROWNBACK: That would be correct. And the answer, when the court gets things wrong, is to overturn the case. 

Is that -- that's the way it works, isn't that correct? 

ALITO: Well, when the court gets something wrong, and there's a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine, and I have said a lot about it... 

BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson? 

ALITO: Plessy was certainly wrong. 

BROWNBACK: OK. I mean, and you have gone through this. 

Brown v. Board of Education, which is in my hometown of Topeka, Kansas -- I was there last year at the dedication of the school house, 50 years ago -- that overturned Plessy. 

Plessy had stood on the books since 1896. I don't know if you knew the number. And I've got a chart up here. It was depended upon by a number of people for a long period of time. 

You've got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You've got these number of cases that considered Plessy and upheld Plessy to the dependency. 

And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that's just not right. 

Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct? 

ALITO: It was certainly -- would be a factor that you would consider in determining whether to overrule it. 

BROWNBACK: But obviously... 

ALITO: Doctrine that would consider. 

BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct? 

ALITO: Certainly. 

BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy. 

BROWNBACK: Is that correct? 

ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled. 

One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law. 

BROWNBACK: They don't. 

ALITO: I think they should have recognized that. 

But one of the things that was illustrated in those cases -- and Sweatt v. Painter, the last one on the list, brought that out -- was that, in fact, the facilities, the supposedly equal facilities, were never equal. 

And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated -- if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal. 

And that was an important factor, I think, in leading to the decision in Brown v. Board of Education. 

BROWNBACK: I want to give you another number, and that is that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the cases, the court got it wrong in some 200 cases. And thank goodness the court's willing to review various cases. 

BROWNBACK: I want to give you an example of a couple, though, that the court hasn't reviewed yet that I think are spectacularly wrong. 

The 1927 case of Buck v. Bell; I don't know if you're familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired. Buck, a patient at the so-called Virginia State Colony for Epileptics and Feebleminded, was scheduled to be sterilized after doctors alleged that she was a genetic threat to the population due to her diminished mental capacity. 

Buck's guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court, but in an 8-1 decision the court found that it was in the state's interest to have her sterilized. 

Majority opinion written by Justice Oliver Wendell Holmes said, "We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetents." 

Clearly, some precedents are undeserving of respect because they're repugnant to the Constitution. Isn't Plessy repugnant to the Constitution? 

ALITO: It certainly was repugnant to the equal protection clause. 

BROWNBACK: And the vision of human dignity. 

Isn't Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution? 

ALITO: I think they are repugnant to the traditions of our country. I don't think there's any question about that. 

BROWNBACK: Give you another case, the Korematsu case versus the United States, 1944 case. World War II broke out following Japanese attacks on Pearl Harbor. Feelings spread that Japanese-Americans, both naturalized and those born in the United States, might not be loyal to the United States; should be removed from the West Coast. 

BROWNBACK: So great was the fear that even the esteemed writer, Walter Lippmann stated that, quote, "Nobody's constitutional rights include the right to reside and do business on a battlefield. There's plenty of room elsewhere for him to exercise his rights." 

President Roosevelt signed an executive order removing them. Korematsu contested the constitutionality -- Fred Korematsu did -- of his internment. 

In Korematsu v. the United States, the Supreme Court held that military necessity justified the internment program and that Fred Korematsu had no protection against relocation under the Constitution. 

Of course, that was later overturned. Excuse me: That was never overturned. In 1948, Congress enacted the Japanese American Evacuation Claims Act to provide some monetary compensation. In 1980, Congress again revisited the case. 

In 1988, Congress passed legislation apologizing for the internment; awarded each survivor $20,000. In 1999, Fred Korematsu was awarded the Presidential Medal of Freedom, the highest civilian honor that anyone can receive. 

Justice has not been done because Korematsu remains on the books. It's still on the books. 

Roe v. Wade: you have had every question on that. But I want to point out its difficulty. My colleagues on the other side look at this as completely settled law, but let's see what the legal experts say about how settled it is. 

Lawrence Tribe, who will be here to testify, I believe probably against you, in a little bit. Let's see what he says, professor of law at Harvard. 

Quote, "One of the most curious things about Roe is that behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." 

BROWNBACK: Settled law? Super-duper precedents? Lawrence Tribe asked some questions about it. 

Justice Ruth Bader Ginsburg: "Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." 

"Provoked, not resolved, conflict" one of your potential colleagues says. 

Edward Lazarus, former clerk to Chief Justice Harry Blackmun, who wrote Roe: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right was granted elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather." 

Settled law? Edward Lazarus has some questions about it being settled. 

Let's look at John Hart Ely, former dean of Stanford Law School. Excellent law school in the country -- one of the top law schools in the country. 

Roe v. Wade, quote, "is not constitutional law and gives almost no sense of an obligation to try to be. What is frightening about Roe is that this superprotected right is not inferred from the language of the Constitution framers' thinking respecting the specific problem at issue, any general value derivable from the provisions they included or the nation's governmental structure." 

John Hart Ely -- think he thinks Roe is settled law? Not constitutional and gives no sense of an obligation to try to be. 

Alan Dershowitz, professor of law, Harvard Law School, one of the top law schools in the country. It's not Princeton, but -- Roe v. Wade and Bush v. Gore, quote, "represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political process. 

"Judges have no special competency, qualifications or mandate to decide between equally compelling moral claims, as in the abortion controversy. Clear governing constitutional principles are not present in either case." 

BROWNBACK: Settled law, super-duper precedents? I think there's places where the court gets it wrong, and hopefully they will continue to be willing to revisit it. 

Now I want to look at a couple of areas of law in addition to this. Your view of the Constitution -- and we had -- yesterday, you hit at this, I thought, on some of the edges, but I just want to get your thoughts on how you view the Constitution, how you would review it. 

There are these different schools of thought on this: strict constructionists, living document, originalists, and there are several others that float around out there. How do you generally look at the Constitution? 

And I'm aware yesterday you were saying that some provisions are very clear and some are not, and you seemed to apply a different set of viewpoints on those of the Constitution. 

Could you articulate your view of how you look and interpret the Constitution? 

ALITO: First of all, Senator, I think the Constitution means something. And I don't think it means whatever I might want it to mean or whatever any other member of the judiciary might want it to mean. 

It has its own meaning. And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution. 

In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption. 

But I think we have to recognize that the Constitution is very different from statutes in some important respects. 

Statutes are often very detailed, and they generally don't exist without revision for very long periods of time. 

The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times. 

And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it. 

ALITO: They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts -- and, of course, the legislative body can supplement this -- to apply that principle to the new situations that come up. 

Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand. 

BROWNBACK: Let me go to a specific area you have written quite a bit about, and that's on religious liberties and free exercise. 

And I've looked at these cases. And this is going to be an active area of law in front of the Supreme Court. It has been for the last 40 years. 

You wrote the case of ACLU v. Schundler, 3rd Circuit case considered ACLU challenge to religious displays erected by Jersey City on the plaza of city hall. Jersey City, for decades, it had holiday displays of menorah and Christmas tree. Litigation resulted in permanent pulling of this. The city came back, said, "OK, if that's not good enough, we'll put a nativity scene, a menorah, Christmas tree, Frosty the Snowman, Santa Claus, Kwanzaa symbols and signs explaining the display. So, OK, if two is not enough, we'll add more into that." 

And they were again challenged by the ACLU. District court found no constitutional violation. 

Panel 3rd Circuit, not including you, reversed that decision. Panel found no basis for the demystification approach, as they put it, and expressed skepticism as to constitutional display. 

BROWNBACK: On remand, district court held that there was a constitutional violation. The city appealed. You sat on the panel that heard that appeal. In a 2-1 decision, you upheld the constitutionality of the modified display. 

In your decision, you specifically cited Justice O'Connor and two particular issues regarding excessive entanglement with religious institutions and government endorsement or disapproval of religion. 

Because Justice O'Connor used these factors to uphold similar displays in prior cases, you applied them to your upholding that Case. That's a correct interpretation; is that correct? 

ALITO: Yes, it is, Senator. 

BROWNBACK: Because these are coming up so much in front of the court, are these types of displays, you feel -- generally -- constitutionally permissible? 

ALITO: Well, this is an area in which the Supreme Court has handed down several decisions. And like a number of the issues that the court has addressed under the establishment clause, it has drawn some fairly fine lines. 

The first case involving a display of this nature was the Pawtucket, Rhode Island, display that was involved in Lynch v. Donnelly. And it was a display that was similar to the display in Jersey City. It included both religious and secular symbols. And they found that that was not a violation. 

BROWNBACK: I want to jump in here, because I've several areas I want to go at. When I read your opinions, what I hear you to write is you would rather have a robust public square than a naked public square; that you think there is room for these sorts of displays in the public square. 

ALITO: Well, that was exactly what Jersey City had decided in that case. And Jersey City said: We are one of the most religiously diverse, ethnically diverse, racially diverse communities you will find anywhere in the country. This is right across the New York harbor from the Statue of Liberty and from Ellis Island and it's still an entry point for a lot of people coming into the country. 

And so they have -- over the course of the year at the appropriate time they had a Christmas display, they had a display of a Menorah. On that particular year, Hanukkah was early in the month of December, so the Menorah was up at a different point. They had celebrations for Muslim festivals, for Hindu festivals, for Buddhist festivals, for Latino festivals, for festivals concerning the many ethnic groups in the community. 

And their view was that this is the way we should show that all of these groups are valuable parts of our community and express our embracing of them. And this display, they said, reflected that philosophy and, applying the precedents that the Supreme Court had provided in this area, the Pawtucket case. 

And in a later case involving a display in Pittsburgh, Judge Rendell and I, who were the judges in the majority on that case, said this is constitutional; this is consistent with the establishment clause. 

BROWNBACK: And that's what -- as we've had this 40 years of cases, I really hope we can have a public square that celebrates and not that's got to be completely naked to those views (ph). And I appreciate that. 

You wrote in a free exercise case, C.H. v. Olivia. You heard a case in which a child sued through his parents for violation of his free speech and free exercise rights when his school removed and repositioned a poster he had made of a religious figure that was important to him. It was a picture of Jesus. The poster was part of an assignment where students were instructed to show something for which they were thankful. 

The district court granted judgment in the pleadings in favor of the defendant, the school district. The 3rd Circuit affirmed. 

You dissented in that opinion. Can you elaborate on your reasoning in that particular opinion? Do you remember the case? 

ALITO: Yes, Senator, I do. 

Justice O'Connor pointed out something that's very critical in this area. She said there is a big difference between government speech endorsing religion and private religious speech. And private religious speech can't be discriminated against. It has to be treated equally with secular speech. 

And in this case, this involved a student who -- and there were two incidents. One involved reading. The students in the class were told that if they could read at a certain level, their reward would be to be able to read their favorite story to the class. 

And this student satisfied those requirements. And the student wanted to read a very simplified version of the story of Jacob and Esau to the class. And the teacher said, "No, you can't read that to the class. You can read that privately to me off in a corner." 

And then Thanksgiving was coming along and the students were told, "Draw a picture of something that you are thankful for." 

And I guess the teacher expected they were going to draw pictures of football games and turkeys and things like that, but this student drew a picture of Jesus and said, "That's what I am thankful for." 

And the teacher put all the other pictures up in the hall, but would not put this student's picture up in the hall because of its religious content. 

ALITO: And that, we found, was a violation of this principle that you have to treat religious speech equally with secular speech. 

If you ask a student to say something about a topic -- "What are you thankful for?" -- and the student and the student says something that fits within the topic that the student was asked to talk about, then you can't discriminate against one kind of speech or another. 

BROWNBACK: I thought it was a very interesting stance, and I think appropriate that you took, and in one of the obviously very active areas of the law that we have. 

I want to look at the issue of checks and balances on the federal court. It's a very active area here in Congress, as a lot of people across the country and certainly members of Congress have grown to feeling that we can do whatever we want to here, but wait until the court decides -- the court has moved beyond judicial restraint. 

I asked this of John Roberts, and I asked -- the checks and balances on Congress are obvious. The president can veto a bill. A court can declare something unconstitutional. Checks and balances executive branch are clear. They can be challenged, their actions in the court. Court can say the president can't do that; we cannot appropriate money from here. We've got checks and balances in government. Any high school government student would know that. 

Checks and balances on the court: When I talked to John Roberts about this, he said basically the only check and balance is judicial restraint. It's what the court restrains itself in. And yet you have within the constitution a provision that is there that I asked him about, that I want to ask you about. 

Article III, Section 2 goes, "In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact" -- then it goes on with this interesting exceptions clause -- "with such exceptions and under such regulations as the Congress shall make." The last phrase known as the exceptions clause. 

BROWNBACK: What do you believe is Congress' power to define the jurisdiction of the Supreme Court under the exceptions clause? 

ALITO: Well, the exceptions clause, obviously, gives Congress the authority to define the appellate jurisdiction of the Supreme Court, and it can provide for various avenues by which cases get to the Supreme Court. And that has changed over the years. 

There's been a controversy never resolved about the exact scope of the authority. It came up in Ex Parte McCardle, in the post-Civil War era. And it has been discussed by scholars in subsequent years, and there are several schools of thought on the question about whether it would be consistent with the Constitution for Congress to eliminate jurisdiction in the Supreme Court over a particular type of case. 

That's an unresolved issue that the scholars have addressed. And some argue that that falls within the exceptions clause and some argue that it would be inconsistent with other provisions of the Constitution. 

BROWNBACK: What I see taking place in this country is the court gets more and more involved in tough political issues, as you're going to be pressing other bodies, then, to say: Look we believe these decisions should be here. We believe the issues on the competing interests in abortion, the mother and the child, should be decided by legislative bodies. 

BROWNBACK: But the court said no. 

The issue of marriage is coming through the court system right now. As the court keeps getting involved in these areas, I think you're going to see these sorts of constitutional issues being explored more and more. 

The marriage case I want to take you to, because that's making its way through the federal court -- 45 of our 50 states have deemed marriage being between the union of a man and a woman. 

The state of Nebraska passes a state constitutional amendment, 70 percent of the people voting for it, saying that marriage is a union of a man and a woman. Yet a federal judge, in that case, threw out the state constitutional amendment on novel constitutional grounds, and it's now making its way up through the system. 

The Congress has passed the Defense of Marriage Act, DOMA, passed overwhelmingly, signed into law by President Clinton. It basically did two things. First, it establishes for purposes of federal law, marriage would be defined as a union of a man and woman. And second it provided that no state would be forced to recognize a marriage entered into in another state. 

A number of legal scholars believe this second part violates the full faith and credit clause of the Constitution. 

Judge Alito, this case is coming forward and will probably be resolved in the federal courts, if it isn't resolved by the Congress through a constitutional amendment. What is your understanding of the meaning of the full faith and credit clause, and does this apply to the institution of marriage, which has been traditionally an issue and an area left up to the states? 

ALITO: Well, several constitutional doctrines seem to be implicated by the matters that you have discussed. 

ALITO: The full faith and credit clause in general means that one state must honor judgments that are issued by a court of another state, and it's an important part of the process. It is an important part of the federal system, so that we don't have warring decisions in different states. 

I have not had cases involving this, but there are -- the doctrine has certain boundaries to it. There are exceptions and it covers certain areas and doesn't cover other areas. And a challenge to the Defense of Marriage Act under the full faith and credit clause would call into question the precise scope of the doctrine. And I believe that scholars have expressed differing views about how it would apply in that situation. And that's an issue that may well come up within the federal courts, almost certain to do so. 

BROWNBACK: And I know you can't express on it. 

One last thing I'd like to get into just very briefly is the takings clause in the Kelo case -- it was in a neighboring circuit to yours, Kelo v. City of New London, where private property was taken by another private group -- private property was taken by a public group and given to another private group. 

BROWNBACK: Judge O'Connor wrote eloquently in her dissent: "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton or any home with a shopping mall or any farm with a factory now." 

I just conclude by putting that in front of you, saying that this is one that people have relied upon for a long time: You couldn't take private property to another private individual; it's for public use. And I hope that's one that the court will end up reviewing at some point in time. 

Thank you, Mr. Chairman. 

SPECTER: Thank you, Senator Brownback. 

Senator Coburn? 

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. 

(LAUGHTER) 

SPECTER: Thank you, Judge Alito. We'll now take a 15-minute break and we'll reconvene at 11:35. 

(RECESS) 

SPECTER: The hearings will resume. 

And, turning to distinguished ranking member, Senator Leahy, for 20 minutes. 

LEAHY: Thank you, Mr. Chairman. 

And, Judge Alito, welcome back. If the past is any prologue, you probably don't have more than another day or so of this to go through. 

But I am concerned -- and I want to state this our right outright -- concerned that you may be retreating from part of your record. And I think that some of the answers, and I have expressed this concern. I mentioned it to the chairman. I'm concerned some of your answers were inconsistent with past statements. 

All of us want to know your legal and constitutional philosophy. So, let's go back to the questions I was asking yesterday about checking presidential power. 

And we spoke about Justice Jackson's opinion in Youngstown. Justice Jackson, as you know, is a hero of mine. And I point often to the Youngstown case. 

But when Congress acts to restrain the president's power, as we did with the anti-torture statutes and the Foreign Intelligence Surveillance Act, I believe the president's power than is at its lowest ebb. 

You seemed to be saying yesterday that fell into the second category of Jackson, the "twilight zone." Actually, I believe you were mistaken on that. Justice Jackson spoke of the "twilight zone" area, or as he said, "a zone of twilight," where Congress had not acted. 

So, let's go to a landmark decision, Hamdi and Justice O'Connor's decision. That's whether there was due process required, so a U.S. citizen can have a meaningful chance to challenge his detention by the government. 

Now, Justice O'Connor wrote that the president does not have a blank check even in time of war. And yesterday, you told Senator Specter that you agreed with Justice O'Connor's general statement. 

A very different view was in the dissent. Justice Thomas would have upheld the extreme claims for this all-powerful and essentially unchecked president. 

LEAHY: He argued the government's power could not be balanced away by the court and there is no occasion to balance the competing interests. 

Which one is right, Justice O'Connor or Justice Thomas? They're quite a bit different. 

ALITO: Justice O'Connor wrote the opinion of the court. 

The first question that she addressed in Hamdi was whether it was lawful to detain Hamdi, and it was a statutory question, and it was a question whether it was -- whether he was being detained in violation of what is often referred to as the anti-detention statute, which was passed to prevent a repetition of the Japanese internment that occurred during World War II. And she concluded that the authorization for the use of military force constituted an authorization for detention. 

And then she went on to the issue of the constitutional procedures that would have to be followed before someone could be detained. And she looked to standard procedural due process law in this area and identified some of the requirements that would have to be followed before someone could be detained. 

And now issues have arisen about the identity of the tribunal that is to make a determination about detaining people who are taken into custody during the war on terrorism. 

And that's one of the issues that's working its way through the court system. 

LEAHY: No, I'm not talking about those things that are working, but just on Hamdi -- that has been decided -- would you say that Justice O'Connor basically applied the Jackson test, not the twilight zone test but the test of where the president's power is at its lowest ebb? 

ALITO: In addressing the statutory question, I don't think she had any need to get into Justice Jackson's framework as well. 

LEAHY: So would you say it would be consistent with what Justice Jackson said? 

ALITO: I think it's certainly consistent with what Justice Jackson said... 

LEAHY: Which decision do you personally agree with, hers or the dissent by Justice Thomas? 

ALITO: I think that the war powers are divided between the executive branch and the Congress. I think that's a starting point to look at in this area. 

The president is the commander in chief, and he has authority in the area of foreign affairs and is recognized in Supreme Court decisions as the sole organ in the country for conducting foreign affairs. 

LEAHY: But you're not going to say which of the two decisions you... 

ALITO: Well, I'm trying to explain my understanding of the division of authority in this area. And I think that it's divided between the executive and the Congress. 

I certainly don't think that the president has a blank check in time of war. He does have the responsibility as the commander in chief, which is an awesome responsibility. 

LEAHY: We all understand that and appreciate that. My understanding, listening to Chief Justice Roberts when he was here same way you are, that he felt that Justice O'Connor's decision most clearly tracked the Jackson standard in Youngstown. 

But let's go -- I want to get more into this unitary executive theory, because I really had questions listening to you yesterday. You've said as recently as five years ago that you believe the unitary executive theory best captures the constitutional role of presidential power. You were a sitting judge when you said that. 

And do you still adhere to that legal and constitutional view that you were expressing five years ago? 

ALITO: I think that the considerations that inform the theory of the unitary executive are still important in determining and deciding separation of powers issues that arise in this area. 

ALITO: Of course, when questions come up involving the power of removal, which was the particular power that I was talking about in the talk that you are referring to, those are now governed by a line of precedent from Myers, going through Humphrey's executor and Wiener and Morrison, where the court held 8-1 that the removal restrictions that were placed on an independent counsel under the Independent Counsel Act did not violate separation of powers principles. 

So those would be applied. Those would be the governing precedents on the question of removal. 

But my point in the talk was that the considerations that underlie this theory are relevant; should inform decision-making in the area, going beyond the narrow question of removal. 

LEAHY: But in the past, you criticized Morrison. Are you saying now that you're comfortable with Morrison? Do you accept it? 

ALITO: Morrison is a settled precedent -- is a precedent of the court. It was an 8-1 decision. It's entitled to respect under stare decisis. It concerns the Independent Counsel Act, which no longer is in force. 

LEAHY: So do you hold today that the independent counsel statute was beyond the congressional authority to authorize? 

ALITO: No, I don't think that was ever my view. 

LEAHY: (inaudible) All right. 

Under the theory of unitary executive that you've espoused, what weight and relevance should the Supreme Court give to a presidential signing statement? 

I ask that because these are real issues. I mean, we passed the McCain-Warner et al. statute against torture, when the president did a separate -- after he signed it into law -- he didn't veto it -- he had the right and, of course, the ability to veto it. He didn't veto it. He signed it into law and then he wrote a sidebar or a signing statement basically saying that it will not apply to him or those acting under his orders if he doesn't want it to. 

Under a unitary theory of government, one could argue that he has an absolute right to ignore a law that the Congress has written. What kind of weight do you think should be given to signing statements? 

ALITO: I don't see any connection between the concept of a unitary executive and the weight that should be given to signing statements in interpreting statutes. I view those as entirely separate questions. 

The question of the unitary executive, as I was explaining yesterday, does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive. So those are entirely different questions. 

The scope of executive power gets into the question of inherent executive power. 

LEAHY: Let me go into that little bit. Because back in the days when I was prosecutor, I was very shocked what happened on the Saturday Night Massacre. 

LEAHY: The president orders certain things to be done. The attorney general says, "No, I won't do it." He fires him. 

The deputy attorney general -- he said, "OK, you do it." And the deputy attorney general wouldn't, saying it would violate the law. Fires him. 

They keep on going down. Finally, they find one person, a person you have praised -- Robert Bork -- who says, "Fine, I'll fire him. I'll do what the president says." 

You have criticized Congress for allowing these independent agencies to refine and apply policies passed by Congress. You said that insofar as the president is the chief executive, he should follow their policies, not Congress. 

So let's take one for example. 

The Federal Election Commission, independent agency. They make policy. Suppose the president, whoever was the president, didn't like the fact they were investigating somebody who had contributed to him. Could he order them to stop that investigation? 

ALITO: Senator, I don't think I've ever said that -- I don't think I've ever challenged the constitutionality of independent agencies. 

My understanding... 

LEAHY: No, but you said -- I want to make sure I -- my understanding is you've chastised Congress for giving so much power to them when the power should be in the president or in the executive. 

ALITO: Senator, I don't think I've never said that, either. 

I said that I thought that there was merit to the theory of the unitary executive. And I tried to explain how I thought that should play out in the post-Morrison world. 

Accepting Morrison as the Supreme Court's latest decision, in a resounding 8-1 decision on the issue of removal, how should the concept of the unitary executive play out in the post-Morrison world? 

ALITO: On the issue of removal, my understanding of where the law stands now is that Myers established that there are certain officers of the executive branch whom the president has the authority to remove as he sees fit. 

LEAHY: Of course, he could fire his whole Cabinet today if he wanted to. We all accept that. 

ALITO: Well, that was the issue that was presented by the Tenure in Office Act that led to the impeachment of the first President Johnson. And in Myers, Chief Justice Taft, although the act -- that controversy was long passed -- Chief Justice Taft opined that the Tenure in Office Act had been unconstitutional. 

LEAHY: But let's not go off the subject of these independent agencies that we have set up, using the example of the FEC, the Federal Election Commission. Could the president, if he didn't like somebody they were investigating, a contributor or something, could he order them to stop? 

ALITO: What Morrison says is that Congress can place restrictions on the removal of inferior officers, provided that those removal restrictions don't interfere with the president's exercise of executive authority. 

So they adopted a functional approach. And that was the court's latest word on this question. 

They looked back to Humphrey's Executor and Wiener, which had talked about categories, and they -- categories of quasi-judicial and quasi-legislative officers -- and they reformulated this as a functional approach. And that's the approach that would now be applied. 

LEAHY: Do you believe the president has the power to curtail investigations, for example, by the Department of Justice? The Department of Justice is under him. 

ALITO: I don't think the president is above the law. 

ALITO: And the president is the head of the executive branch. And I've explained my understanding of the removal restrictions that can and cannot be placed on officers of the executive branch. 

LEAHY: But could he order them to stop an investigation? 

ALITO: Well, you would have to look at the facts of the case and the particular officer that we're talking about. 

LEAHY: Could he order the FBI to conduct surveillance in a way not authorized by statute? 

ALITO: The president is subject to constitutional restrictions and he cannot lawfully direct the FBI or anybody in the Justice Department or anybody else in the executive branch to do anything that violates the Constitution. 

LEAHY: I'm speaking now of statute. Could he order our intelligence agencies to do something that was specifically prohibited by statute? 

ALITO: Well, my answer to that is the same thing. He has to follow the Constitution and the laws of the United States. He has to take care that the laws are faithfully executed. 

If a statute is unconstitutional, then the Constitution would trump the statute. But if a statute is not unconstitutional, then the statute is binding on the president and everyone else. 

LEAHY: But does the president have unlimited power just to declare a statute -- especially if it is a statute he had signed into law -- to then declared that unconstitutional, and he's not going to follow it? 

ALITO: If the matter is later challenged in court, of course, the president isn't going to have the last word on that question. That's for sure. And the courts would exercise absolutely independent judgment on that question. It is emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the court. 

LEAHY: Now, that is an answer I agree with. Thank you. 

In other areas, SEC, can he order them to stop an investigation if it's if somebody doesn't want to investigate it? 

ALITO: Well, the independent agencies are governed by Humphrey's Executor and cases that followed that. And there has been restrictions placed on the removal of commissioners of the independent agencies and they have been sustained by the Supreme Court. 

And that is where the Supreme Court precedent on the issue stands. 

LEAHY: Is that settled law? 

ALITO: It is a line of precedent that culminated, I would say -- there have been a few additional cases relating to this, the Edmund case and the Freitag case -- but I would look to Morrison, which was an 8-1 decision involving a subject of considerable public controversy, the removal of an independent counsel, removal restrictions on an independent counsel. 

LEAHY: I'm still having some difficulty in statements you've made about the unitary form of government and how you would apply it. 

You suggested an answer to a question I asked. When people's rights are violated they should have their day in court. The court's are there to protect the rights of individuals. I don't think anybody in this room would disagree with that. 

It's the practice we look at. 

In PIRG v. Magnesium Elektron, you concluded the Congress didn't have the constitutional authority to authorize citizens to bring a suit against a polluters under the Clean Water Act. 

Whether the people had justiciable claims or not, there were a number of people downstream from the Magnesium Elektron. They said the water had been polluted. They brought a suit. You threw it out. Judge Lewis dissented; said it should have gone back to the lower court on the question of facts. 

I'll give you a two-part question. One, why did you send that back? And do you accept Laidlaw as being settled law? 

ALITO: Well, Magnesium Elektron presented the question of whether we had a case or controversy under Article III -- and that's the fundamental limit on our jurisdiction. 

The Supreme Court has said that we do not have a case or controversy before us if we do not have a party that has constitutional standing, which requires injury in fact. 

ALITO: And the issue was whether the plaintiffs in that case had established injury in fact. 

There was a plant that was discharging certain things into a creek which eventually emptied into the Delaware River. And the plaintiffs in the case alleged that they enjoyed the Delaware River in a variety of ways -- they ate fish from the river, they drank water from the river, they walked along the river -- but there was nothing in the evidence -- and Judge Lewis agreed on this -- Judge Roth wrote the opinion. I agreed with Judge Roth and Judge Lewis with us on this point. 

There was nothing in the record... 

LEAHY: But didn't Judge Lewis agree with you on the legal point, but he suggested sending it back to the lower court to determine whether there were facts to give standing? 

I mean, we all agree, you can't be in a case if you don't have standing. But didn't Judge Lewis say, "Send it back to the lower court so they can determine on the facts whether there might be standing"? 

ALITO: The evidence that was before us did not show that there was any standing on the part of the plaintiffs. There was no evidence of harm to the Delaware River in any way from the discharges and that was the basis of Judge Roth's opinion with which I agreed. 

As I recall, Judge Lewis's point was that the case should go back to the district court so that the plaintiffs could have an opportunity to present additional evidence. 

But as I recall, they were not even arguing before us that they had additional evidence. They were not arguing before us, as I recall, that, "We have additional evidence and we would like the opportunity to go back to the district court to present it." 

That's my recollection of the matter. 

LEAHY: And the other part of my question is Laidlaw settled law? 

ALITO: Well, Laidlaw is a precedent on the Supreme Court. And my answer to the question there is the same: It is entitled to the respect of stare decisis. 

SPECTER: Thank you, Senator Leahy. 

Senator Hatch? 

HATCH: Judge Alito, I just want to clarify a few matters. 

In his questioning this morning, Senator Durbin from Illinois, I think apparently misstated what Chief Justice Roberts said during his confirmation hearings. 

HATCH: Senator Durbin claimed that the chief justice -- now the chief justice said that Roe was the settled law of the land. 

In fact, that exchange that Senator Durbin referred to was made during the confirmation process for Judge Roberts to the Circuit Court of Appeals for the District of Columbia, where he would have to admit that that would be settled law for him in that court. It's beyond question that for a circuit court nominee the Supreme Court's pronouncements on specific questions are binding precedents and will be the settled law of the land. 

Moreover, contrary to the distinguished senator from Illinois' suggestion, then-Judge Roberts' testimony, his recent confirmation hearing, and your testimony today and yesterday, you've both been entirely consistent in this particular matter. 

I just wanted to clarify that, because there's a difference between a nominee for the circuit court of appeals saying that something is settled law that he or she has to be bound by than by somebody who is a nominee for the Supreme Court. And that's just a matter of clarification that I would like to make at this time. 

Now, yesterday, you were asked some 340 questions by 15 senators, and you're getting a bunch today. And I'm told that you felt that you had to decline to answer only about 5 percent of them. That's even lower than previous Supreme Court nominees, by far, in most cases. 

Now, this hearing has hopefully provided an opportunity for you to address our concerns and answer some of the criticisms from members of this committee. But, of course, there's always a battle waged outside of this committee room by the special interest groups who are also making charges and launching, really, unfair attacks on you. 

Now, these attacks typically go directly across the airwaves or the Internet with hardly a chance to even catch them, let alone address them or rebut them or correct them. So I want to give you a chance to respond to some of these attacks by some of these left-wing groups, many of which are certainly less than responsible, in my view, pretty reprehensible in what they do in these matters. 

HATCH: One group says in a press release that in the Chittister case, and at other times in your career on the bench, you go out of your way to rule against workers. 

Now, this group claims that what it calls your views and biases are strong evidence that you would, in their words, quote, "rarely rule in favor of those seeking justice in the courts," unquote. 

I think that's a good example of how misleading some of these groups can actually be, where they're looking only for results in certain cases rather than upholding of the law itself in those particular cases. 

And, in that particular case, they're apparently willing to ignore two things about the cases they discuss. They ignore the facts, they ignore the law, and that's all, just the facts and the law. But they also ignore what you've written, and they ignore what you've said here today. 

How about that criticism, Judge? In Chittister did you go out of your way to rule against workers? What were the facts and the law in the case? And why did you think that they required the result that you finally upheld in that case? 

ALITO: I thought the result was dictated by Supreme Court precedent, and I wasn't the only one who thought that. That was a unanimous decision of our panel. Judge McKee and I believe Judge Fullum (ph) from the district court in Philadelphia were on that panel. They all agreed. 

And it is my recollection that seven other courts of appeals had decided the case the same way. More than 20 court of appeals -- that issue the same way. More than 20 court of appeals judges, including judges appointed by all recent presidents, have reached that decision. 

And I think when you look at the law and the facts of the case, it becomes clear why there is so much unanimity on the question. 

ALITO: Whether one likes the test or not, the test that we on the lower courts have to apply in this area is the congruence and proportionality test from City of Boerne. And therefore what we had to do was to see whether there was a record of discrimination relating to the particular provision that was at issue in Chittister, which had to do with leave for personal illness. 

So there would have to be some evidence that state employers had given more leave for personal illness to men than women, or more leave for personal illness to women than men. And there was no evidence whatsoever on this issue, and that's why all of these courts of appeals reached the conclusion that they did in Chittister. 

HATCH: When somebody takes an unfair crack at me, I can come back at them as a member of the United States Senate. But because you're a judge and not a politician, you really don't have the opportunity, really, to address fully these misrepresentations of your views. And there have been plenty of them in this process that you've had to undergo. 

So I wanted to give you some opportunity to here. For example, one liberal group sent an e-mail around just yesterday that claimed you were not responsive to a question about whether the president can immunize executive branch officials who directly violate the law. 

Now, is it an accurate representation of your views to suggest that you argued that executive branch officials should be fully immunized for their violations of the law? 

ALITO: No, it's not a correct expression of my views. The president, like everybody else, has to follow the Constitution and the law. He has to follow the Constitution at all times. And he has to follow all the laws that are enacted consistent with the Constitution. That's clear. 

Now in the Mitchell v. Forsyth case which they may be referring to, I was simply saying that a certain argument relating to immunity from civil damages was an argument that had been made before and it was an argument that was being requested by our client in the case, who was being sued in his individual capacity. 

ALITO: And I recommended that we not make the argument, but said, "I don't dispute this argument." And that's all that was involved there. 

HATCH: Let me say just this: I want to allow you to respond to a tactic that has been used by several of our colleagues here in these hearings. 

They observed results in some past cases and then they expressed concerns that entire groups or categories of litigants might not be able to get a fair shake by you in the court. 

One of them, yesterday, wondered whether the average citizen, quote, "can get a fair shake from you when the government is a party," end quote. 

Another did the same thing this morning. It's one thing to express disagreement with your decisions. And, of course, as I said before, to look only at results and ignore the facts and the law is fundamentally misguided. And it's a misleading way of evaluating judicial decisions. 

But let's be clear what is being floating around here with this type of tactic. 

Those who say, "Because you ruled this way in the past, litigants cannot get a fair shake in the future," are saying, Judge, that you are biased, that you prejudge these cases, that you are less than fair and impartial -- something that virtually everybody who knows you, including all of the people who testified before the American Bar Association, say is false -- that you prejudge these cases, you're less than fair and impartial. 

You know, that's a very serious charge even if it is cloaked in suggestions and innuendo. 

Judge, you previously mentioned your oath of office, an oath before God to do equal justice to everyone without regard to who the parties are. 

How do you react to this suggestion that the way you've ruled in the past shows or even suggests that you're biased and that entire categories of litigants may not get a fair shake before you? 

ALITO: Well, I reject that. 

ALITO: I believe very strongly in treating everybody who comes before me absolutely equal. 

I take that oath very seriously. And I have tried my very best to abide by that during my 15 years on the bench. 

And I don't think a judge should be keeping a scorecard about how many times the judge votes for one category of litigant versus another in particular types of cases. That would be wrong. We're supposed to do justice on an individual basis in the cases that come before us. 

But I think that if anybody looks at the cases that I voted on in any of the categories of cases that have been cited, they will see that there are decisions on both sides. In every type of employment discrimination case, for example, there are decisions on both sides. 

HATCH: But most employment discrimination cases really are decided at the lower level. 

ALITO: Most of them are. 

HATCH: And when they get up to your level it's generally decided on technical or a procedural basis. Am I wrong in that? 

ALITO: No, that's correct, Senator. 

HATCH: And sometimes you have to uphold the law even though you may be uncomfortable with the law yourself. 

ALITO: We have to decide the cases on the facts that are in the record and the law that applies. 

HATCH: Well, that's right. 

Well, let me just ask you about a few of your cases. Because, you know, it's easy to cherry-pick these cases and find a sentence here you don't like and a sentence there you don't like and criticize you, in the process, as though you're not being fair, when, in fact, everybody who knows you knows your impeccable reputation for fairness, dignity, decency and honor, and capacity. 

And that's why you got the highest rating from the American Bar Association. And deserve it. And you've twice got that. And I know how tough they can be. 

But let me just give you a couple illustrations. 

HATCH: Zubi v. AT&T. You were the lone dissenter in that case. What did you dissent from? 

ALITO: I dissented from a majority decision that held that Mr. Zubi, who was claiming racial discrimination, would not have his day in court because of the statute. 

HATCH: You would have given in his day in court, right? 

ALITO: I would have. 

HATCH: If it had been up to you? 

ALITO: Yes. 

HATCH: All right, how about U.S. v. Kithcart? I don't expect you to remember all these cases -- and if you don't, just raise your hand and I'll try and recite them. 

But this was a Fourth Amendment case. You held that the Fourth Amendment does not allow police to target drivers because of the color of their skin; is that right? 

ALITO: That's right. That was essentially a case of racial profiling. And I wrote an opinion holding that that was a violation of the Fourth Amendment. 

HATCH: That was even after a police officer received a report that two black men in a black sports car had committed three robberies. And she pulled over the first black man in a black sports car she saw. But you ruled for the defendant and against racial profiling in that case. 

ALITO: That's correct, Senator. 

HATCH: OK. And Thomas v. Commissioner of Social Security -- just to mention a few of these cases that show that you're going to do what's right, regardless. And sometimes in these employment cases and even other cases, when they get up on appeal, they're fairly technical in nature and you have to do what is right under the law. 

But in Thomas v. Commissioner of Social Security -- do you recall that case? 

ALITO: I do. 

HATCH: What'd you do there? 

ALITO: That was a case where I think the Supreme Court thought that my opinion had gone too far in favor of the little guy who was involved there. 

HATCH: This was a woman with disabilities, right? 

ALITO: That's right. A woman who was trying to get... 

HATCH: And she sought Social Security benefits. 

ALITO: ... Social Security disability benefits. And in order to be eligible for those, she had to be unable to perform any job that existed in substantial numbers in the national economy. 

HATCH: She had a job as an elevator operator if I recall correctly. 

ALITO: That's right. 

As the case was presented to us, the only job that she could perform was her past job, which was as an elevator operator. 

And what I said was that you can't deny somebody Social Security benefits because the person is able to do a job that no longer exists in any substantial numbers in the national economy. You can't deny benefits based on a hypothetical job. It has to be based on a real job. 

And the Supreme Court didn't see it that way, but it seemed to me that the way that we ruled was consistent with what I thought about it. 

HATCH: So in other words, although you stood up for the person seeking rights here, the Supreme Court overruled you. 

ALITO: That's right. 

HATCH: Oh, my goodness. 

In the landmark case Fatin v. INS, this involved Iranian women who refused to conform to their government's gender-specific laws and social norms; whether or not they should be granted asylum in America. 

How did you rule in that case? 

ALITO: I think that was one of the first cases in the federal courts to hold that requiring a woman to be returned to a country where she would have to wear a veil and conform to other practices like that would amount to persecution if that was deeply offensive to her, and that subjecting a woman to persecution in Iran or any other country to which she would be returned based on feminism would be persecution on the basis of political opinion. 

HATCH: Well, I've got another nine or 10 cases and perhaps even more that I could go through. But the point is that whenever they deserve to win, they win, regardless of whether they are rich or poor, whether they're powerful or not. You have basically upheld the law in these cases, is that correct? 

ALITO: That's what I have tried to do. 

HATCH: And where you've been in dissent, you've tried to do it to the best of your abilities. 

ALITO: That's right, Senator. 

HATCH: OK. 

Let me just mention one other thing. This business of the Vanguard, when you signed that back in 1990, 12 years before the matter for which you are being criticized -- not by anybody who has any ethical, professorial, or other knowledge, not by the American Bar Association, not by the vast majority of lawyers to look at these matters -- that particular statement said will you, during your, quote, "initial service," unquote. It seems to me those are important words. 

Now, you haven't tried to hide behind that. You've just honestly explained that basically you made a mistake, which really wasn't a mistake according to all the ethics people and according to the American Bar Association. 

And now, instead of the original accusation or the original implication, you're being accused of not being forthcoming because of that our original statement and your application to the committee questionnaire. 

HATCH: But the fact of the matter is that, quote, "initial service," doesn't mean 12 years away, does it, when there's no chance in the world that you could ever receive any monetary benefit from Vanguard? 

ALITO: Well, I don't think initial service means 12 years away. 

HATCH: Neither do I and neither does anybody who cares about justice and what's right in this matter. 

So to blow that out of proportion like your adversaries have done is really pretty offensive. I could go on and on, and maybe be stronger on that, but the fact of the matter is I just wanted to make that, "initial service," unquote, pretty clear. 

Now, let me just say that sometimes I just can't make sense of what some of your critics are saying. On the one hand, they want to portray you as some sort of a robotic patsy for big government who does not think for himself. 

Yesterday, one of my Democratic colleagues even suggested that the Bush administration was trying to manipulate you to give responses favorable to them in this hearing. 

Now, you quite rightly said, and I think you were fairly restrained about saying it, that you have been a judge for 15 years and are quite capable of thinking for yourself. 

On the other hand, your critics then turn it around and attack you for supposedly dissenting too much, as if you should actually stop doing all that thinking for yourself and just fall in line with the majority in all of your cases. 

Now, Judge, I know that appeals court judges, that the appeals court themselves are collegial bodies, but how do you view dissenting from your colleagues? 

How you decide when to do it? How did you know how often you dissent from your court, or do you know often you dissent in your court and whether it's out of step with your colleagues? 

HATCH: Could you give us some answers there? 

ALITO: Yes. 

I think that it's important for a multi-member court to issue a judgment and to speak clearly to the lower courts and the parties. 

And so when I've been in a position where taking an independent position would result in the absence of a judgment, I have gone out of my way to make sure that there was a judgment, that there was a majority opinion. 

And an example of that is the Rappa case, where we were really divided three ways and my position was close to Judge Becker's opinion. And Judge Becker had the opinion writing assignment and I issued an opinion saying, "I don't completely agree with the way Judge Becker analyzed this issue, I would analyze it differently, but I'm joining his opinion so that there is a majority opinion, so that there is a clear statement of the law for the guidance of the parties." 

I think that's the first principle. 

The second is that judges should be respectful of each other's views, and I have tried never to write a dissenting opinion or respond in a majority opinion to a dissenting opinion in a way that was not completely respectful of the views of the other members of the court. 

It's useful to dissent if there's a chance that the case may go en banc, and that's happened in a number of cases where I've dissented. It's useful to dissent if there is a chance that the case may go to the Supreme Court and so that the Supreme Court will have the benefit of a different expression of views. And there have been cases... 

HATCH: Would it surprise you to know that you've dissented only 79 times in nearly 5,000 cases in which you've participated? 

That comes out to about 1.6 percent, which is considerably lower than most others who have been on the appellate courts. 

And I would observe that the Washington Post concluded in an editorial that your dissenting opinions, quote, "are the work of a serious and scholarly judge whose arguments deserve respect," unquote. 

I certainly agree wholeheartedly with that assessment. 

Thank you, Mr. Chairman. 

SPECTER: Thank you, Senator Hatch. 

The transcript continues in Part II.

Transcript
U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court 
Part II of III

CQ Transcriptions
Wednesday, January 11, 2006; 1:43 PM

The transcript picks up with Sen. Kennedy's testimony. To return to Part I, click here.

Senator Kennedy? 
 
KENNEDY: Thank you very much, Mr. Chairman. 

KENNEDY: Judge Alito, I hadn't planned to get into Vanguard on this particular round. But I chaired those hearings when you were promoted to the Circuit Court. And I was also the one that filed those questions which you responded to. 

And you responded under oath, when you promised the committee that you would recuse yourself on Vanguard issues. 

Now I'm just hearing from you that you believe that that pledge was somehow a condition. Unlike my friend -- and he is my friend -- from Iowa, who says, "Well, a pledge is just a pledge; it's like any political pledge around here; it's a political promise and doesn't carry much weight," that's not my opinion, and I don't think it is the opinion of most of the members of this body. 

You made a pledge to the Senate -- effectively, to the American people -- that you were going to recuse yourself. Now you say, well, it was just for any initial time, and I think 12 years is more than I really had in mind -- you just qualified your answer. 

How long, when you made that pledge and that promise to the committee, how long did you intend to keep it? 

ALITO: Well, Senator... 

KENNEDY: And when that time was up, did you ever imagine that you would get back to the committee and said, "I believe my time is up on Vanguard"? 

ALITO: Well, Senator, the nature of the question that I was responding to did not figure in the way the Monga case was handled. And I thought I made that clear yesterday. 

I was following, throughout my time on the bench, the practice of going beyond the code. And had I focused on this issue when the matter came before me, I would have recused myself at this time as I later did. 

But in answer to Senator Hatch's question, looking at that question today and looking at the answer, the question was: What you intend to do during your initial period of service? And I think that that's what the answer has to be read as responding to. 

But just to be clear, I'm not saying that that's why this played out the way it did. I'm just saying that's how I think the question and the answer -- that's how I think the question and any response to the answer by any nominee needs to be interpreted. 

KENNEDY: Well, if there's someone that can just understand what you just told us, I'd be interested in it, because I don't. 

HATCH: Well, I'll be glad to explain it. 

KENNEDY: Well, if... 

(LAUGHTER) 

Mr. Chairman. 

You, in response to Senator Hatch, did not believe that you are bound by the promise, because you said in your mind that you felt that it was just for the initial aspects of it. 

KENNEDY: That's another issue, because initially was meant to include the investments that you had at that particular time. You might have those investments and then discard an investment and, therefore, no longer have a conflict. That is what the asker of the question had intended. 

But you've added another wrinkle to it. You've just indicated that when you made a pledge to the committee that you were going to recuse yourself, that you thought that at sometime you were going to be released. 

And I'd just like to know how long that was going to be. Was that going to be two years, was it going to be three years, was it going to be five years? When did you feel that you were going to be released, if we followed your interpretation? 

ALITO: Senator, I did not rely on that time limitation in relation to what I did in the Monga case. And I hope I've made that clear. If I didn't in my previous answer, I do want to make it clear. I did not rely on that in my handling of the Monga case. 

Looking at the question now, where it says initial period of service, I would say that 12 years later is not the initial period of service. But that was... 

KENNEDY: When did it stop then? When did you think that your pledge to the committee halted, after how many years? Six months? What did you intend at the time that you made the pledge? What was in your mind at that time? I'm interested in what's in your mind at this time, but what was in your mind at that time? 

ALITO: I can't specifically recall what was in my mind at that time, but I'll tell you what I'm pretty sure I had in mind. I was not a judge, and I was being considered for a judicial position. 

And what I was trying to express was basically the policy that I followed during all my years on the bench, which is to bend over backwards to make sure that I didn't do anything that came close to violating the code of conduct or give anybody the impression that I was doing anything that was improper. 

KENNEDY: The last question on this is how long then -- when you made the promise under oath to the committee that you were going to recuse yourself -- and you understand that now to be in your own interpretation to be just the initial time -- how long did you think that that pledge and promise lasted? 

ALITO: Senator, as I said, I can't tell you 15 years later exactly what I thought when I read that question. 

It refers to the initial period of service. And looking at it now, it doesn't seem to me that 12 years later is the initial period of service. 

KENNEDY: My question to you, which I guess I'm not going to get an answer to, is when did it? Is 10 years? How about three years? Is that? 

ALITO: I do not know exactly what the time limitation would be, but 12 years does seem to me to be not the initial period. 

KENNEDY: We'll come back. 

I just want to mention in fairness to my friend and colleague -- both of my friends, Senator Hatch and Senator Durbin, and to Senator Hatch's quoting of Senator Durbin that you responded on the question of the Roe v. Wade when you were in the circuit court, I have here the record that said of the hearings of Roberts. 

And the question was asked by Senator Specter to Judge Roberts during the time of his consideration for the Supreme Court. Senator Durbin can clarify the record, but I wanted that to be clarified so that there wasn't the confusion about it. 

In the time that I have, Judge Alito, I listened carefully to responses you gave to Senator Leahy about the CAP organization at Princeton. And I listened to other responses you gave to our colleagues and again to Senator Durbin earlier today. 

KENNEDY: But I have just some questions on this to, at least, try to finalize, at least in my mind. And it might be useful in the committee's mind, as well. 

You had indicated in your '85 job application that you were a member of the Federalist Society for Law and Public Policy and a regular participant in its luncheon and a member of the Concerned Alumni at Princeton University, a conservative alumni group. 

And you said yesterday that you wracked your memory about the issue and really had no specific recollection of the organization; is that correct? 

ALITO: I have no specific recollection of joining the organization. 

KENNEDY: And you also said yesterday and today to Senator Durbin that you very likely joined CAP because of your concern over the ROTC program being kicked off campus; is that correct? 

ALITO: Well, what I said specifically was that I wracked my memory as to why I might have joined. And the issue that had bothered me for a period of time as an undergraduate and in the '80s, around the time when I made the statement, was the issue of ROTC. This was the issue about the administration of Princeton that bothered me. 

And I had a high regard for Princeton in many respects, in general, and have participated in a lot of their activities. But this issue bothered me a great deal at various times. And that's what I said. 

KENNEDY: And, finally, you said yesterday that you very likely joined CAP around 1985, just before you were applying to the high- level job in the Justice Department under President Ronald Reagan. I think that's correct. 

ALITO: Senator, what I specifically said, as I recall, was, if I had done anything substantial in relation to this group, including renewing my membership, I would remember that. And I do not remember that. 

KENNEDY: So, I want to ask a few things that I hope can clear this up. 

You have no memory of being a member. You graduated from Princeton in 1972, the same year CAP was founded. 

KENNEDY: You called CAP a "conservative alumni group." 

It also published a publication called Prospect, which includes articles by CAP members about the policies that the organization promoted. You're familiar with that? 

ALITO: I don't recall seeing the magazine. I might have seen... 

KENNEDY: Did you know that they had a magazine? 

ALITO: I've learned of that in recent weeks. 

KENNEDY: So a 1983 Prospect essay titled "In Defense of Elitism," stated, quote, "People nowadays just don't seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children." 

Did you read that article? 

FEINSTEIN: Finish the last line. 

KENNEDY: Finish the last line -- is, "and homosexuals are... 

FEINSTEIN: No, "And now here come women." 

KENNEDY: If the senator will let me just... 

FEINSTEIN: Yes, I will... 

(LAUGHTER) 

KENNEDY: Can I get two more minutes from my friend from... 

(LAUGHTER) 

Just to continue along. 

I apologize, Judge. 

Did you read this article? 

ALITO: I feel confident that I didn't. I'm not familiar with the article, and I don't know the context in which those things were said. But they are antithetical... 

KENNEDY: Well, could you think of any context that they could be... 

ALITO: Hard to imagine. 

If that's what anybody was endorsing, I disagree with all of that. I would never endorse it. I never have endorsed it. 

Had I thought that that's what this organization stood for I would never associate myself with it in any way. 

KENNEDY: The June '84 edition of Prospect magazine contains a short article on AIDS. I know that we've come a long way since then in our understanding of the disease, but even for that time the insensitivity of statements in this article are breathtaking. 

It announces that a team of doctors has found the AIDS virus in the rhesus monkeys was similar to the virus occurring in human beings. 

KENNEDY: And the article then goes on with this terrible statement: "Now that the scientists must find humans, or rather homosexuals, to submit themselves to experimental treatment. Perhaps Princeton's Gay Alliance may want to hold an election." 

You didn't read that article? 

ALITO: I feel confident that I didn't, Senator, because I would not have anything to do with statements of that nature. 

KENNEDY: In 1973, a year after you graduated, and during your first year at Yale Law School, former Senator Bill Bradley very publicly disassociated himself with CAP because of its right-wing views and unsupported allegations about the university. His letter of resignation was published in The Prospect; garnered much attention on campus and among the alumni. 

Were you aware of that at the time that you listed the organization in your application? 

ALITO: I don't think I was aware of that until recent weeks when I was informed of it. 

KENNEDY: And in 1974, an alumni panel including now-Senator Frist unanimously concluded that CAP had presented a distorted, narrow, hostile view of the university. 

Were you aware of that at the time of the job application? 

ALITO: I was not aware of that until very recently. 

KENNEDY: In 1980, the New York Times article about the coeducation of Princeton, CAP is described as an organization against the admittance of women. In 1980, you were working as an assistant U.S. attorney in Trenton, New Jersey.

KENNEDY: Did you read the New York Times? Did you see this article? 

ALITO: I don't believe that I saw the article. 

KENNEDY: And did you read a letter from CAP mailed in 1984 -- this is the year before you put CAP on your application -- to every living alumni -- to every living alumni, so I assume you received it -- which declared: "Princeton is no longer the university you knew it to be." 

As evidence, among other reasons, it cited the fact that admission rates for African-Americans and Hispanics were on the rise, while those of alumni children were failing and Princeton's president at a time urged that the then all-male eating clubs to admit females. 

And in December 1984, President William Bowen responded by sending his own letter. This is the president of Princeton responded by sending his own letter to all of the alumni in which he called CAP's letter "callous and outrageous." 

This letter was the subject of a January 1985 Wall Street Journal editorial congratulating President Bowen for engaging his critics in a free and open debate. 

This would be right about the time that you told Senator Kyl you probably joined the organization. 

Did you receive the Bowen letter or did you read the Wall Street Journal, which was pretty familiar reading for certainly a lot of people that were in the Reagan administration? 

ALITO: Senator, I've testified to everything that I can recall relating to this, and I do not recall knowing any of these things about the organization. And many of the things that you've mentioned are things that I have always stood against. 

In your description of the letter that prompted President Bowen's letter, there's talk about returning the Princeton that used to be. There's talk about eating clubs, about all-male eating clubs. There's talk about the admission of alumni children. There's opposition to opening up the admissions process. None of that is something that I would identify with. 

I was not the son of an alumnus. I was not a member of an eating club. I was not a member of an eating facility that was selective. I was not a member of an all-male eating facility. And I would not have identified with any of that. 

If I had received any information at any point regarding any of the matters that you have referred to in relation to this organization, I would never have had anything to do with it. 

KENNEDY: You think these are conservative views? 

ALITO: Senator, whatever I knew about this organization in 1985, I identified as conservative. I don't identify those views as conservative. 

What I do recall as an issue that bothered me in relation to the Princeton administration as an undergraduate and continuing into the 1980s was their treatment of the ROTC unit and their general attitude toward the military, which they did not treat with the respect that I thought was deserving. The idea of that it was beneath Princeton to have an ROTC unit on campus was an offensive idea to me. 

KENNEDY: Just moving on, you mentioned -- and I only have a few minutes left -- you joined CAP because of your concern about keeping ROTC on campus. 

ROTC was a fairly contentious issue on Princeton campus in the early 1970s. The program was slated to be terminated in 1970, when you were an undergraduate. By 1973, one year after you graduated, ROTC had returned to campus and was no longer a source of debate. 

And from what I can tell, by 1985, it was basically a dead issue. In fact, my staff reviewed the editions of Prospects from 1983 to 1985 and can only find one mention of ROTC. And it appears in a 1985 issue released for homecoming that year that says: ROTC is popular once again. Here's the Prospect, 1985: ROTC is popular again. This is just about the time that you were submitting this organization in your job application. 

ALITO: Senator, if I... 

KENNEDY: So... 

ALITO: I'm sorry. 

KENNEDY: But the -- briefly, please. 

ALITO: It's my recollection that this was a continuing source of controversy. There were people on the campus -- members of the faculty, as I recall -- who wanted the unit removed from the campus. 

There was certainly controversy about whether students could get credit for courses, which I believe was a military requirement for the maintenance of the unit. 

There was controversy, as I recall, about the status of the instructors; whether they could be given any kind of a status in relation to the faculty. 

I don't know the exact dates, but it's my recollection that this was a continuing source of controversy. 

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. 

I want to compliment you, first of all, before I ask some questions, and I just did, to some extent, about the consistency of your testimony, but I think it's been good. I think under very difficult circumstances you've handled yourself very well -- being responsive, forthright, thoughtful. 

I sense in you a person that's very sincere. And, obviously, I don't know you except this appearance here and the small period of time we spent in the office. Seems like you have modesty, that's a breath of fresh air, demonstrating a command of and very much a respect for the law and the Constitution, of course. 

GRASSLEY: And this is all stuff that we ought to be looking for in the tradition of Alexander Hamilton saying the role of the court -- or the Senate is to make sure that only competent people get on the court and that political hacks do not get on the court. 

You are surely no political hack, and you are very competent. And that's been demonstrated with your fair and open-minded approach to your being a judicial person. 

It is too bad that we are getting this misconstruing of your record or the answers, the claim that you have not written a single opinion on the merits in favor of a person of color alleging race discrimination on the job in your 15 years on the bench. 

I have looked at a lot of opinions you have given, and it is just not true. Your record shows that you ruled in favor minorities making allegations of racial discrimination in employment not once, but in a number of cases. 

The claim that you acted unethically in the Vanguard case is just not true. You did nothing improper and actually went beyond the rule to ensure compliance. 

The claim that you would support an unchecked executive is just not true. Your record shows that you have repeatedly ruled against the government and that you have told us no one, including the president, is above the law. 

The claim that you have ruled in a vast majority of time against the claims of individual citizens in favor of the government and large corporations is just not true. The reality, as I see it, that you have found in favor of the little guy in numerous cases but because of who was right and who was wrong, not just because you have a bias one way or the other. 

GRASSLEY: Your critics are, I think, grasping at any straw to tarnish your record, and that's unfortunate. 

Judge Alito, in your opening statement you said -- and I hope I quote you accurately -- "No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law." 

You didn't go into detail about what you meant. I think it's quite clear above the law. But give us that diverse opinion, above the law versus beneath the law. 

ALITO: Every person has equal rights under the law in this country, and that involves includes people have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens. 

Everybody is entitled to be treated equally under the law. And I think that's one of the greatest things about our country and about our legal system. 

GRASSLEY: You've been criticized for being hostile to voting rights based upon a statement that you wrote 20 years ago when you were applying for a job with the Justice Department during the Reagan years. 

In fact, yesterday some of my colleagues repeated that assertion, but it's apparent to me that it's off the mark. 

Specifically, in your 1985 statement you wrote that he became interested in constitutional law and went to law school in part because you had some disagreements over Warren court decisions, including some regarding reapportionment. Of course, that's understandable because the Warren court had handed down very many decisions on reapportionment, and they had been criticized as unworkable, and that in fact the Supreme Court backed away from some. 

So there was disagreement. There was debate over those issues at that time. Probably a lot less today, but still recently there's going to be a case going to the court. 

Some have questioned your 1985 statement regarding the electoral reapportionment, that is how districts are drawn. They suggested that you're hostile to the principle of one person, one vote. 

Clarify for me, nowhere in your '85 statement did I find that you wrote that you ever disagreed with the principle of one person, one vote. Did you? 

ALITO: I never disagreed with that principle, Senator. What I disagreed with when I was in college was the application of the principle in some of -- the elaboration of the principle in some of the late Warren court decisions. 

And this grew out of my father's work with the New Jersey legislature. He had been the secretary to the state constitutional convention of 1966, which redrew the provisions of the state constitution relating to the composition of the legislature in an effort to bring it into compliance with the one person, one vote standard. 

ALITO: These provisions, however, because they tried to respect county and municipal lines, as I recall, resulted in population deviations of under 10 percent, but those deviations were much higher than the ones that the Supreme Court said in the late decisions that I'm talking about would be tolerated regarding congressional districts. 

There was a belief that that principle would be applied across the board, both to congressional districts and to legislative districts, and that would have wiped out the plan that had been adopted. 

And I was quite familiar with all of this. And it seemed to me an instance of taking a good principle, which is one person, one vote, and taking it to extremes, requiring that districts be exactly equal in population, which did not seem to me to be a sensible idea. 

GRASSLEY: Isn't it true that the words "one person, one vote" weren't even in your statement? 

ALITO: Those words are not in my statement. 

(CROSSTALK) 

ALITO: ... Senator, that this issue of how nearly exact the districts had to be a was an issue that was working its way to the Supreme Court -- maybe it had actually been there; I've forgotten the exact chronology -- at the time of the 1985 statement in Karcher v. Daggett, which involved the New Jersey congressional districting plan. 

GRASSLEY: Well, just to make sure that there's no lingering confusion, then, let me ask you straight out: Do you believe in the principle of one person, one vote? 

ALITO: I do. I think it's a fundamental part of our constitutional law. 

GRASSLEY: I find it curious that the same people who are questioning your integrity are either asserting or implying that you took a position against the principle of one person, one vote, when it is demonstrably false that you ever did. 

GRASSLEY: Further, on another point, some have suggested that you're hostile to women and minorities. Obviously, I don't think that's the case. I think you've demonstrated that sincerity in just very recent statements today. 

Now, in the Washington Post article, Alberto Rivas, a criminal defense lawyer and a Democrat, said you, quote, "took steps to diversify an office" -- this was when you were U.S. attorney -- "You took steps to diversify an office that had a reputation as something of a white boys' club." 

Rivas said that when you hired him at the U.S. Attorney's Office in New Jersey, he was the only Latino lawyer in the office, and by the time you left that office, Rivas said there was four Latino lawyers, as well as African-American lawyers. 

Your commitment also included advancing women attorneys and promoting them into senior positions during your tenure as U.S. attorney. 

And I understand that when you started in that office, only two of the 15 divisional leadership attorneys, chiefs or deputy chiefs or attorneys or in charge, were women. And two years later you had more than doubled that number. And five of the 17 divisional leadership attorneys were women. 

Now, on the federal bench, you've hired many women and minorities to serve as law clerks. 

GRASSLEY: And you had a discussion with Senator Brownback earlier, mentioning some very complimentary things that Cathy Fleming, your former deputy chief and acting chief of special prosecution units, in New Jersey office, and David Walker, a former lawyer in that office, had to say about you and your treatment of women and minorities. 

They both, being lifelong Democrats, vouched in those statements for your qualities as a judge and your respect for individual rights. 

And, Mr. Chairman, if these letters -- and they may have already been put in the record, but if they aren't in the record, I'd like to have those put in the record. 

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

GRASSLEY: Several of your dissents have been referred to today -- or not -- in the last two days. And so I wanted to comment on the suggestion that you're way out of the mainstream because you've written a lot of dissenting opinions. 

I don't find that you've written so many as a percentage of your total thing. But whatever reason you did it, you did it with good reason. 

But judges disagree all the time, and that's to be expected. And, obviously, there's nothing wrong with that. And, in fact, the Supreme Court has agreed with your dissents on several occasions, I recall, from reading a synopsis of your opinions. 

And the reality is, as I see it, you don't disagree with majority opinions more frequently than most federal appeals judges do in similar cases. And of more than 4,800 cases -- and that we got from the Washington Post -- but of more than 4,800 cases that you decided during your tenure on the 3rd Circuit, you dissented only in 79 cases, which would only be one in six-tenths percent of all those cases. 

So, you know, I don't think that there's anything very extraordinary about the number of dissents or the dissents, particularly when the Supreme Court has agreed with your opinion in reversing the 3rd Circuit. 

I'd like to go to the issue of some historical basis for our constitutional law. 

GRASSLEY: The role of historical precedent in constitutional laws I find very interesting. 

For example, qui tam lawsuits have been a feature of Anglo- American law since the Middle Ages and have been a common feature of federal statutory law even since the first Congress, yet their constitutionality has never been clearly adjudicated by the Supreme Court. 

What role does long-standing historical practice play in assessing the constitutionality of a government act or practice? 

ALITO: Well, it can be very relevant in many instances. 

One place where this has come up is when a statute was passed by the first Congress, and this has happened in a number of occasions. The first Congress, which was responsible for the Bill of Rights, passed a number of statutes relating to provisions of the Bill of Rights, and the Supreme Court has often looked to those and said, "This is the same Congress that proposed the Bill of Rights and they did this in enacting a statute so that gives us a good indication of what they had in mind." 

And when there has been a legal practice that predated the Constitution, then that certainly is relevant in considering its constitutionality. 

GRASSLEY: I'd like to have you think about legislative history and how you might use it or how often you might use it, or maybe if you got a rough quantifiable answer, how often you might use it. 

The Supreme Court, I think, has quite often stated legislative history of a particular bill would be critical in their interpretation of it. What's your position with respect to legislative history? How important is it to you? And how have you utilized history in interpreting statutes? 

ALITO: I have often looked to legislative history in the cases that I have written concerning statutory interpretation. I think if anybody looks at those opinions they will see that. 

When I interpret a statute, I do begin with the text of the statute. I think that certainly is the clearest indication of what Congress, as a whole, had in mind in passing the statute. 

And sometimes, the language of the statute is dispositive, and is really -- the decision can be made based on the language of the statute itself. 

But when there's an ambiguity in the statute, I think it's entirely legitimate to look to legislative history. As I said, I have often done that. I think it needs to be done with caution: Just because one member of Congress said something on the floor, obviously that does not necessarily reflect the view of the majority who voted for the legislation. 

It has to be done carefully, and I think with a realistic evaluation of the legislative process. But I'm not one of the judges who thinks that you should never look to legislative history. I think it has its place. 

GRASSLEY: Are you familiar with the legal arguments that some opponents of the False Claims Act have made to the effect that its qui tam provisions are unconstitutional under Articles II and III? And if you do, do you have any opinion on those arguments that are used, without prejudicing any review of it you might give? 

ALITO: Well, the issue has not come up before me. I have a little bit of familiarity with the arguments. 

And I think that all I can say on the question is that the qui tam statute is of historical origin, as you pointed out. We have seen what it has produced in terms of tangible results in the cases that have been brought under the statute in recent years. 

ALITO: And should an issue relating to its constitutionality come before me, either on the 3rd Circuit or the Supreme Court, then I would have to follow that whole judicial process that I've described and evaluate the arguments and certainly study the question much more thoroughly than I have done up to this point. 

GRASSLEY: You may have just answered this question, but I'd like to get it expressly on the record: Have you ever written or spoken publicly about the issue of the constitutionality of qui tam or any other provision of False Claims Act? And if so, the circumstances and the context? 

ALITO: I'm quite sure I've never written or spoken about its constitutionality. 

GRASSLEY: Do you feel that you have any bias against False Claims Act or Whistleblower Protection Act that would impact the ability of you to fairly decide cases involving those issues? 

ALITO: I certainly don't, Senator. 

GRASSLEY: I'd like to ask you about the opinion you authored in Mistic (ph). 

As author of the legislation that we call the False Claims Act, it's returned billions of dollars to the federal government and has become a very effective tool in combating fraud against the American taxpayers. So I follow court cases on this as much as I can. 

The False Claims Act contains a provision that jurisdictionally bars lawsuits based on public disclosure, including such things as administrative reports and investigations. 

The purpose of this provision is to prevent an individual who has read about a description of a fraud in a newspaper report, public document, government report, from simply taking that material and using it as a basis for a case. 

In Mistic (ph), the qui tam relator had made a FOIA request and utilized some of the documents he received in response to FOIA in filing that qui tam case. 

GRASSLEY: Your opinion, you determined that the qui tam relator had based his False Claims Act lawsuit on public disclosure made in an administrative report or investigation. 

To come to that conclusion, you had to equate that the qui tam relator, who was acting on behalf of the government, as the public. But I think it's clear that Congress did not equate such qui tam relators with the public when it wrote the public disclosure bar provision. That's because, if Congress had done so, then everything qui tam relators know is known to the public, which doesn't make any sense. 

So because my time's run out, I don't want to go on with a question, but, so you see what I'm getting at? Could you react to that? 

ALITO: I do. And I understand that's a very strong argument. 

I remember that I found that a very difficult issue to deal with and I spent a lot of time on it. And my view of the matter elicited a strong and a very persuasive, I think, dissent by one of my colleagues. 

So it's a tough issue. And if that were to come up again, I would have to really reconsider. 

GRASSLEY: Just in your last sense, you gave pretty much the same answer that Judge Roberts did. He had dissented in a case too. And it kind of worries when we get two of you on the court that may have unfamiliarity with congressional intent on false claims. 

Thank you very much. 

SPECTER: Thank you, Senator Grassley. 

That will be all. We'll recess until 2:00. 

KENNEDY: Mr. Chairman? 

SPECTER: Yes, Senator Kennedy? 

KENNEDY: Just as a quick matter of personal privilege, I'd like to include in the record the response from your staff to me, this letter that I wrote to you on the 22nd, and also my staff response to your staff's response to the letter and include that in the record. 

SPECTER: Like all requests for unanimous consent for the record, they're granted. 

DURBIN: Mr. Chairman? Mr. Chairman? 

SPECTER: I just want it known that we're now into the lunch hour. 

But go ahead, Senator Durbin. 

DURBIN: Mr. Chairman, I sent you a note, and you were kind enough to come and speak to me about it. 

I just ask for two minutes time to respond to comments made by members of the committee mentioning my name after I asked questions this morning. You've asked if I would wait until Senator Coburn returned to the committee, and in deference to the respect to my colleague, I will do that. 

LEAHY: Could I also, Mr. Chairman, on this... 

SPECTER: I appreciate it very much waiting for Senator Coburn. I think it is a good practice, when comments are made about other members, to do it while they're here or to ask their rejoinder. And that's why, if you have something to say to Senator Coburn, I want him here. Otherwise, he'll have something to say when you're not here. 

DURBIN: He did already, Mr. Chairman. 

SPECTER: Now, Senator Leahy is recognized into the lunch hour. 

LEAHY: Into the lunch hour. 

Mr. Chairman, if I might, I came very close to objecting when Senator Coburn was speaking and referring to Senator Durbin. Senator Coburn is a new -- he's a valued member of the committee, of course, but new, and I wanted -- but I really think -- I've been here for 30 years. I've always made it a point, if I wanted to raise something, to give word to the other party. 

I think it's a good way of doing it. And you have been totally fair on that. 

And I would urge senators, if we're going to start quoting each other, that maybe we have a quote time or something like that. Senator Durbin's absolutely right in wanting to be able to respond to what was said. 

SPECTER: Well, I think that we might agree on best practice. But when you deal with senators, my view is to give senators great latitude as what they want to undertake to do. 

And if Senator Coburn wants to make a comment without Senator Durbin here, I think that's going to be his call, although my preference would be to the contrary. 

But when Senator Durbin wants time to respond, I immediately sent word to him he would have the time that he requested. And then I sent for Senator Coburn. And Senator Coburn was in a meeting that he couldn't leave, but we'll get the two of you together fairly promptly. 

DURBIN: Thank you.

SPECTER: Lunchtime. Now we get lunch.

(RECESS) 

SPECTER: And it is now Senator Biden's turn for his second round, for 20 minutes. 

Senator Biden? 

BIDEN: Thank you very much, Mr. Chairman. 

Judge, good to see you. As I said to you, we happened to run into each other in the hallway coming in, what I'd like to do, if I may, is go back and revisit two areas that you were questioned on yesterday, and a little bit maybe even today. I don't recall actually. I think it was yesterday. 

And one is the Casey case. And I want to make sure I understand because I'm still a little bit puzzled by your reasoning. 

But let me start off and make it clear, from my perspective, the abortion issue is -- I'm trying to figure out how you arrived at interpreting a justice's -- a Supreme Court justice's standard that was being applied and how it came out differently than others. 

Yesterday you said, when I think it was Senator Kohl asked you, that you agreed with Justice O'Connor, quote, "that you look at the group that's affected, not the group that's unaffected." 

But when you wrote your dissent, you said, and I quote, "It seems safe to assume that some percentage, despite an initial inclination not to tell their husbands, would notify their husbands without suffering substantial ill effects, acknowledging some would suffer substantial effects." 

Can you tell me -- rationalize yesterday's statement and your dissent for him? Tell me -- explain it to me. 

ALITO: Well, I think what you look at is the group that is required to notify. You don't look at the group that's not required to notify. So unmarried women are not examined here because the notification requirement obviously does not apply to them. 

Then, my understanding of Justice O'Connor's standard, which was the "more than some women" standard -- let me put it that way, although she didn't put it quite that strongly. She said that it is insufficient that some women are inhibited from having an abortion as a result of the requirements. 

So you look at the people who are affected by -- who are within the scope of the provision. 

ALITO: And then you would see how many of the people within the scope of the provision would be inhibited from having an abortion as a result of what was involved. 

You don't look at people who aren't regulated at all, and you don't just look at the people who would be inhibited, because both of those would not be the right thing to look at. 

So let's take the case of informed consent requirement. You'd look at everybody who was required to receive the information that was within the informed consent provision and then you ask how many of the people, how many of the women who are regulated by this, would be inhibited from having an abortion as a result of the requirement. 

That was my understanding and that is my understanding of what she was talking about. 

BIDEN: Now, you referenced in your dissent in Casey the Thornburg case. What was the issue in Thornburg? 

ALITO: Thornburg concerned... 

BIDEN: Excuse me. That prompted her to come up with the statement that you referenced, which was that, you know, it doesn't have to affect everyone. 

ALITO: Well, she was setting out her understanding of what the standard was, of the undue burden standard. 

Now, in Thornburg, there were several provisions of a previous version of the Pennsylvania statute at issue. There was an informed consent provision, as I recall. There was a provision relating to health insurance. There was a provision relating to notification of a minor's parents. There were a number of provisions involved. 

ALITO: My recollection is that when she made this statement, she was talking about the undue burden standard itself. It was an explanation of what she meant by the undue burden standard. 

BIDEN: As I look back and read it, my understanding was -- and I won't, in the interest of time, read her entire two paragraphs here -- but the part of Casey which she found to be a particular problem as being declared unconstitutional by her colleagues was where an obstetrician would have to read to a woman certain verbiage that would explain the pros and cons about an abortion, or at least the down sides of an abortion. 

And she said the state has an interest in promoting life, and so even though some women might be offended by that, it was still OK. It was still constitutional. 

And that language is the language that the discussion about, even though some women would be affected, you transposed in good conscience to a case where notification to a husband was required. 

One of the things that I had some difficulty with is whether or not there really were comparable issues here. 

In one case, it was about whether or not a woman would fear for her life, for example, an exception was given, if she informed her husband. In another case it was not about that, that O'Connor was referring to, she was referring to whether or not it put an undue burden on the woman to be told, by the way, this can happen when you have an abortion and this is the state the fetus is, et cetera. 

That is the part that kind of disturbs me, or that perplexes me anyway, about the real world here. 

Senator Specter referenced the Violence against Women Act. We did a lot of work on that. There is overwhelming evidence that there are women who would be fearful of going home and telling their husbands they are going to have an abortion. Not fearful physically; fearful that the husband had all the economic power, would say, "I'm divorcing you and I'm taking the kids and having a custody battle, and you do not have the money to hire a lawyer." 

BIDEN: Are they comparable ill effects? That is, that kind of ill effect on a woman that, if she tells her husband, he is going to sue for divorce and seek custody of the children, knowing that he has all the economic horsepower and she has no ability to go out and hire a significant lawyer? 

Is that comparable to the doctor saying: By the way, if you have an abortion, here is what happens? 

ALITO: The informed consent provision presented an easier -- easier isn't even the right word -- a less difficult question than the spousal notification provision. 

I don't think there is any question about that. They both involve the same standard, which was the undue burden standard. And, therefore, I thought, and I still think, that what was said in reference to one provision is relevant in determining what the standard was. 

The big issue, when this case was before us, was whether the standard was undue burden or not. It's funny how cases look different after they have progressed through the Supreme Court than they do when they are first presented to the court of appeals. 

That was the most hotly contested argument before us. Had there been any change in the Supreme Court's case law -- and the plaintiffs argued strenuously that there had not -- but our panel, after some effort, determined under the Marks standard for determining what the holding of a case is when there is no majority opinion, that the standard was the undue burden standard. 

And there just was not a lot to go on. I think I said that yesterday. I look for whatever guidance I could find. 

BIDEN: Well, again, I am not questioning the sincerity of your search. 

Again, it gets down to the thing that keeps coming up with me is not that you don't care about the little guy and all of that, but that your reading of statutory language, Supreme Court precedent, the Constitution, seems to me to not reflect some of the genuine real life differences that exist. 

BIDEN: The idea that you acknowledge that some women would suffer ill effects, substantial ill effects from informing their husbands, but because it was only a small percentage that met the undue burden test -- that didn't meet the undue burden test -- seems to me -- well, anyway, a majority disagreed with you. And I happen to disagree with you because I guess -- maybe it's because we've been so exposed to how so many women, within their relationships, can suffer significant consequences for challenging a position that their husband does not want to accept, whether it has to do with abortion or what school their child goes to, and it's pretty consequential. 

But that's my problem with how you arrived at your reasoning -- your reasoning of how you arrive at your conclusion. 

Let me move on to another area in the interest of time here. Yesterday there was discussion about Family Medical Leave Act. And you correctly stated there were two distinct parts of the act, and the Hibbs case dealt with one, and the case which you -- Chittister dealt with another. Can you explain that again for me? 

ALITO: Yes. Hibbs concerned a provision that required employers to give employees leave to be out of work to take care of a family member. 

ALITO: And there was a record that state employers had given more leave for this purpose to women than they had to men, and that was based on the stereotype that when somebody in the family gets sick and somebody has to leave work to take care of the family members, it's the woman and not the man. 

And it reinforced the stereotype, of course, because having such a policy would encourage, would put pressure on women to leave work for this purpose as opposed to the man. If there was a woman and a man in the family and somebody had to leave work to take care of a sick family member, and you have a plan like this, this is going to pressure the woman to do that. 

So the Hibbs court found that that was a sufficient record of gender discrimination to justify the passage of legislation under Section 5 of the 14th Amendment. 

Chittister concerned a provision that related to leave for personal illness. And there is no reason to think that men or women get sick more often one than the other, or what was to the point, that state employers had given men more sick time than women or women more sick time than men. 

And so with that record it was the conclusion of my court -- and I believe seven other circuits -- that this was a different issue, these cases were decided before and after Hibbs, and that that could not be justified if you accept the congruence and proportionality standard. 

BIDEN: Well, on the congruence and proportionality standard, we in the Congress felt we were speaking to that. Were you aware or your colleagues -- well, speak for yourself, actually; I know you can't speak for them -- that one in four people taking sick leave under the act are women for pregnancy-related disabilities. We, when we wrote the law, said explicitly that we wanted the bill to protect working women from the dangers that pregnancy-based distinctions could be extended to limit their employment opportunities. 

BIDEN: I mean, the practical world is that a fair number of women who are pregnant are told in the last -- and I yield to my doctor at the end of the dais on the other side -- but it's not unusual for a woman to be told that she needs the last month of pregnancy or two months of pregnancy have bed rest. 

And that if that counts against her 12 weeks, you know, employers -- we did establish there's a record where employers say, "Hey, look, man, we're going to give men and women the same leave," notwithstanding the fact that women, in fact, in many circumstances -- and one in four of them are pregnancy-related -- need more time because of the pregnancy. 

I mean, was that discussed by you guys or women? 

ALITO: I'm quite certain it never was. I would have made a reference to it in the opinion if that had been mentioned. 

And I'm not aware of that coming up in the other circuit opinions on the issue. 

We are, to a degree -- we can't know everything about the real world. And we are dependent on the arguments that are presented to us to a degree. I don't believe that argument was ever presented. 

BIDEN: Well, Congress expressly stated that the purpose of the act was, quote, "to minimize the potential for employment discrimination by ensuring generally that leave is available for eligible medical reasons, including maternity-related disability." 

And that's why the decision confuses me. I think all you probably have to do is turn to your wife and say, "Hey, you know, the real world, when you're pregnant, does that sometime inhibit the amount of time you're able to -- you're required to be away from your job?" 

BIDEN: Fortunately, most women, like my wife and my daughters- in-law, my daughter-in-law, work up to the time, but a lot can't. 

Let me suggest also, as I said to you in the hallway, I want to, kind of, set the record straight on Princeton. One of the reasons why I'm perplexed and many of us are perplexed by your answers regarding CAP, the organization, is that it doesn't fit with your background. It doesn't fit with your background. 

As we both said in the hallway, I read your opening statement again, where you said that, "A generation earlier I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton." And I pointed out to you -- I'm about 10 years older than you -- that's how I felt. That's what I was referencing yesterday about my Irish Catholic kid from Claymont. 

The thing that surprises -- or at least puzzles -- me is that it was, I thought, a pretty widely known debate that in the Ivys, the one, sort of, last holdout, fighting to not admit as many women and fighting not to admit as many minorities, was Princeton. And there was a whole battle over it, as you heard referenced in terms of the Wall Street Journal and mailings to alumni. 

I noticed someone in the press saying -- I want to be able to continue to wear the hat given to me, by pointing out that the reason I can wear this hat proudly today, after being on campus as much as I have at Princeton, is today 28.7 percent of Princeton's undergraduate population is minority. 

BIDEN: And today, the class of '05, 47 percent -- 47 percent -- are women. And so, that's what that battle was all about, a lot of us thought. 

You know, I'd be proud of my daughter at Princeton Graduate School, instead of Penn now, although I am very proud she is at Penn. But that's what this debate was about, Judge, and that's why it still confuses me. 

And I'm going to ask you a straightforward question and I hope it doesn't offend you. 

When you listed CAP, was part of your rationale for listing that on the application that you thought that would appeal to the outfit you were applying to, the people looking at your resume? 

ALITO: Well, Senator, as I've said, I don't have a recollection of having anything to do with CAP. So all I can say is that I put it down on the '85 form and, therefore, I must that been a member at around that time. And that's -- I can't even... 

BIDEN: I'm not even suggesting about whether you were or were not remembering, but, was part of the reason -- I mean, one of the explanations -- I'm looking for a reason. 

You know, I'm looking to be able to say -- because you don't impress me as someone -- especially from your background -- that would want to keep Princeton as -- I won't go back and read the quotes -- keep Princeton as, you know, "Imagine my father's 50th reunion, having 40 percent women. Isn't that awful?" You don't impress me to belong to that club. 

ALITO: I wasn't. 

BIDEN: And so, the only explanation I can think of -- and you're a very informed guy. 

BIDEN: I mean, you're sitting up there in north Jersey as a U.S. attorney. As I said, it's in the Wall Street Journal. It's a debate going on. You're getting letters. 

The only thing I can figure is you figure that, you know, a relatively conservative Reagan administration Justice Department would say: Hey, maybe that's the kind of guy I want. 

I can't understand why else you'd put it down. But if that's not the reason and it's just you just listed the outfits you belonged to, that still perplexes me. But, anyway... 

ALITO: Well, Senator, I wasn't a member of that club, as you referred to it. 

By the time I entered Princeton, there were many minorities in my class. The practice of not including minorities had ended. My class was not coeducational when we were admitted. And as I said yesterday, I had never previously attended a non-coeducational school. 

BIDEN: You had about 300 women, if I'm guessing right, when you got admitted roughly. 

When were you admitted? 

ALITO: I was admitted in 1968. It was not coeducational. It went coeducational while I was there. 

BIDEN: '71 -- '70, '71, there were 300 women; now there is 2,100 in that same class. 

Anyway, I thank you very much, Judge. 

I yield the floor. 

SPECTER: Thanks very much, Senator Biden. 

We now have both Senator Durbin and Senator Coburn present. 

Senator Durbin, you've asked for two minutes as a matter of personal privilege. You have two minutes. 

DURBIN: Thank you very much, Mr. Chairman. 

And I will make it brief. 

In a courtroom and in a committee room, it's not unusual to try to rehabilitate a witness. And when hard questions are asked, people come back with information. 

Mr. Gillespie and his team is down there providing information and others. Perfectly acceptable. We'd do the same thing if the shoe were on the other foot. 

Two personal references to me after I left the room -- and I apologize for leaving the committee room -- one related to the fact that I had earlier been in a pro-life position in my political life, and it is true. I made reference to this in my opening statement. 

I've stood for election more than 12 times in the House and Senate, general and primary, stating my position as pro-choice. So the voters of Illinois know that. 

I had asked Judge Alito whether his position had changed from 1985; that was the nature of my questions to you this morning. I don't consider that to be a shortcoming, if you would concede it changed. Although, at this point, you have not made that concession. 

Abraham Lincoln was once accused of changing his position on an issue, and he said, "I'd rather be right some of the time than wrong all the time." 

DURBIN: And so I don't think changing your mind is necessarily a condemnation. 

The second point I'd like to make specifically is my reference to settled law. Roe v. Wade is settled law. And I'm sorry that Senator Hatch is not here at the moment, but I would like to read into the record exactly what was said on September 13th, 2005, before this committee, when Senator Specter said... 

SPECTER: Does this involve Senator Hatch, Senator? 

DURBIN: It does. Senator Hatch raised the question that I had said that this position... 

SPECTER: Shouldn't we have Senator Hatch here? 

DURBIN: If you want to wait, I'll wait. 

SPECTER: Yes, I'd like to wait for Senator Hatch to arrive. That way we may be able to conclude this not in two minutes, but in less than two hours. 

I have made inquiries on the rush issue over the lunch hour and I have some things to say about it, but I'm not going to say them until Senator Kennedy arrives. 

(LAUGHTER) 

So I've asked staff to inform Senator Kennedy that I await his arrival. 

And, in the meantime, if it pleases this august body, we'll proceed with the hearing. 

Senator Kyl? 

KYL: Thank you, Mr. Chairman. I do want to tie some loose ends up, and one of them makes reference to something Senator Kennedy read. Would it be OK if I proceed with that? I think it would be fine. 

And this has to do with this last matter that Senator Biden was also discussing, and that's the Princeton alumni group, just to make sure that the key facts are understood here. 

You believe you joined, Judge Alito, around 1985 because of a concerned threat to ROTC at Princeton university. Is that correct? 

ALITO: Well, Senator, I don't recall joining, but I do remember that that was the issue relating to the administration that was bothering me for a period of time, including that period. 

KYL: And just for the record, Mr. Chairman, I'd ask unanimous consent to insert a quotation from the Princeton packet. 

KYL: And I'll just quote it here: "Prospect editor Denise DeSousa (ph), added that CAP is concerned about the formation of a Third World center, a campaign to eliminate the Army ROTC program, and what it perceives as the decline of Princeton athletics." 

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

KYL: Second, on this matter -- and I refer to this as the very scurrilous material read by Senator Kennedy, that I suspect we would all agree was scurrilous material -- had you ever heard of any of that material that he read a while ago, before today? 

ALITO: No, Senator. 

KYL: I believe you said you vehemently disagreed with it; is that correct? 

ALITO: I do. I deplore those statements. 

KYL: And would disavow it? 

ALITO: I disavow it. I would never associate myself with those statements. 

KYL: Did you know that such things had been published by the CAP when you were a member of it or when you joined it? 

ALITO: Absolutely not. I would never be a member of an organization that took those positions. 

KYL: Also, Mr. Chairman, unanimous consent for the record to contain the disclaimer which the editors of the Prospect include in the magazine. It reads, "The appearance of an article in Prospect does not necessarily represent an endorsement of the author's beliefs by the Concerned Alumni of Princeton." 

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

KYL: Now, let's return to your 15 years as a judge and how matters might come before you in United States Supreme Court. 

I just wanted to also refer to something that I put in the record yesterday. 

It is a very difficult thing to look at 4,000 cases and conclude, when you have ruled on both sides of issues, depending upon different fact situations, as we've talked about before, that you necessarily favor one side or the other. 

KYL: One of the areas of concern was in the area of discrimination. I just want to read one sentence of what I inserted in the record yesterday regarding employment discrimination and see if you have any other comment on it. 

"A 2003 study of employment discrimination claims in federal court fond that federal appeals court judges sided with employment discrimination plaintiffs in only 13 percent of the cases. Judge Alito's record of four out of 18, or 22 percent, is actually more favorable to plaintiffs." 

Do you know that to be incorrect, or do you have any other comment on it? 

ALITO: I don't know -- I'm not familiar with the statistics. 

The way the appeals system is set up, I think that's what results in the statistics that you mentioned, the low rate of success for plaintiffs. Because these cases are generally cases in which summary judgment has been granted for the defendant. 

If the district court denies summary judgment for the defendant, then the case will go to trial, and very often is settled, or there's a trial and there's no appeal after the trial. 

So most of the cases that we get are cases that have been looked at by a conscientious district judge and found not to be cases that should go to trial, and I think that's what produces those statistics. 

KYL: And that's an interesting lesson, I think, for all of us to be able to explain why certain cases come to courts and why they would be more on one side than the other. And it's an important lesson I think both for lawyers and non-lawyers to appreciate that kind of dynamic. Because otherwise, if you just look at raw statistics and don't know the background, you can come to different conclusions. So I appreciate that. 

In another area, it is apparent to me that you're simply not going to be able to satisfy some of my colleagues because you will not absolutely commit to rule the way that they want to on a couple of key issues; for example, on the issue of abortion. 

You've repeatedly confirmed the significance and the role of precedent, in this case Roe v. Wade. You also noted situations in which as a 3rd Circuit Court judge, you adhered to the Roe v. Wade precedent. But you have declined to announce your constitutional view of Roe today, despite repeated attempts by some of my colleagues to get you to do that in these hearings. 

KYL: Implied in your answer is the point that to do that here would commit you to a particular result, something you cannot ethically do. 

Are there cases regarding abortion that you believe may come before the United States Supreme Court? 

ALITO: There certainly are cases that may come before the Supreme Court. There's a case involving abortion before the court this term, and they come up with some regularity. Many of them involve the application of Roe. Most of them involve the application of Roe or the application of other precedents that build on Roe. But it is entirely possible that a case involving Roe itself could come up at some point in the future. 

KYL: I said in my opening statement that I would defend your right to decline to say in advance how you would rule on matters that could come before you. 

But kind of along the same lines that you did a moment ago, perhaps you could tell us the reason for the rule. In other words, to elaborate on the damage that would be done if judges indicate in advance how they might rule on cases. What's the reason for that rule? 

ALITO: To my mind, the most important reason is that to do that would undermine the entire judicial decision-making process. We have a process for deciding legal issues, and it is critically important that we stick to that process. 

And that means that when an issue comes before us, the briefs are not a formality, the arguments of the attorneys are not a formality. We should read those very carefully, and we should study the issue, and we should study all of the authorities that are cited to us and carefully consider all of the arguments are presented to us, both in the briefs and in the attorneys' oral presentation, and then go into the conference and discuss the case among the members of the court. 

And we shouldn't decide legal questions without -- questions that are not going to -- not just abstract questions without -- questions that are going to -- not just abstract questions as if we were in a constitutional law seminar, but cases that are going to have an impact in the real world. 

ALITO: We shouldn't decide those questions, even in our own minds, without going through that whole process. If a judge or a judicial nominee announced before even reading the briefs or getting the case or hearing the argument what he or she thought about the ultimate legal issue, all of that would be rendered meaningless, and people would lose all of their respect for the judicial system and with justification, because that is not the way in which members of the judiciary are supposed to go about the work of deciding cases. 

KYL: I have talked about this image that we have of Lady Justice, the blind figure with the scales of justice in her hand, and tried to describe why she has the blindfold across her eyes. 

I just marvel at our judicial system and, having represented clients in court for 20 years myself, how we in America are willing to literally put our lives, sometimes, certainly our freedom and our fortune, in the hands of a person, one judge frequently -- sometimes a jury, sometimes not, sometimes more than one judge -- but frequently, a judge. 

How would people possibly have the trust to put everything they own or their own freedom in the hands of a person, if we as a country had not established over 200 years of adhering to this rule of law, this notion that justice is blind, that the facts of your case and the law will decide whether you win or lose and nothing else? 

It is a remarkable phenomenon, if you stop to think about it, and not all countries do that. Even the countries that have judicial systems, I don't think one can have near the confidence in it that we do here in the United States. 

So it is a critical, critical principle that plays itself out in courtrooms around this country every day. And it's something that I think we have to fight to preserve, as much as we possibly can. 

And I appreciate your explanation of that. 

Just a couple of final things, and I'm going to be able to yield back some of my time. 

KYL: I just can't resist pointing out one little irony here, and it has to do with the precedent that I spoke of before, Roe v. Wade, that is so important to several members of this committee. 

Was written by a justice who himself, at least in some cases, willing to throw off precedent. Do you remember who wrote the opinion in Roe v. Wade? 

ALITO: That's Justice Blackmun. 

KYL: Justice Blackmun. 

And in, one might say, an infamous 1994 dissent from a denial of cert in the case of Collins v. Collins, Justice Blackmun wrote that he would refuse to follow all Supreme Court precedent on the death penalty, which has been ruled constitutional by the court, of course, by saying that he would, and I'm quoting, "no longer tinker with the machinery of death," end of quote. 

I suspect that's not the way to deal with precedent. If you have a comment on it, fine. But, again, I think it ironical that -- or ironic that the decision perhaps most in focus here was authored by a judge who himself was quite willing to throw off precedent, I would argue in a rather cavalier way in a situation in which he didn't like it. 

Let me just close by putting something in the record and making a comment. Mr. Chairman, I ask unanimous consent to insert the following statement into the record, but I'd like to read it because it's a statement of the majority leader of the Senate, Bill Frist. 

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

KYL: And let me briefly read it: "As a Princeton alumnus, I had concerns about CAP, but I have no concerns about Judge Alito's credibility, integrity and is commitment to protecting the equal rights of all Americans. Judge Alito has condemned discrimination and his record of more than 15 years demonstrates his commitment to equal rights for women and minorities. 

"Old documents of a now-defunct organization will not tell us more than Alito's statements and record already have. 

"Further, the views that the Democrats attribute to Alito through CAP were the views expressed by an individual member in a magazine who was not speaking for the organization and certainly not for Judge Alito. 

"This is another transparent attempt by Democrats to wage an unfair smear campaign against an exceptionally qualified nominee." 

KYL: And, Mr. President (sic), I read that not to attribute the views to any member of this committee. But I think it's important that the reputation of this fine jurist be based upon his actions as a jurist for over 15 years -- as I said in my opening statement, longer than any other justice of the United States Supreme Court, except for one, 70 years ago, on the Circuit Court of Appeals, with a record of over 4,000 decisions and an ample opportunity to know what kind of a person he is, what kind of a judge he has been and, I would argue, what kind of a judge that he would make. 

I do not believe that his answers to questions have been inconsistent or unforthcoming. 

I believe that, as a matter of fact, Judge, you have been very forthcoming in your answers to questions, including getting right up to the edge on a lot of matters that arguably could come before the court. But you did not try to dodge or duck those questions at all. 

In fact, let me just read for the record two or three statements relating to your performance here at this hearing, if I could, please. 

Well, Senator Biden isn't here, so I won't read what he has said but it's on the chart. And I appreciate what he said, by the way. 

KYL: Joe Zuckman (ph), who writes in the Chicago Tribune, "'Judge Alito has gone farther. And I think that's given a lot more substance to these hearings,' said Specter," meaning our distinguished chairman, Arlen Specter. 

And then, Dana Milbank, writing in The Washington Post, "Unlike John G. Roberts Jr., who made frequent attempts to soften his views and dodge many of the questions, Alito took almost every question." 

Now, I'm not going to subscribe to the first part of that last quotation with respect to Judge Roberts. 

But I think it is true that you have taken the questions, you have answered them to the best of your ability, and you have only stopped short when not to do so would be to commit to a decision in a case that you are not ethically permitted to do so and that would do injustice to the rules of law and the parties that might come before the court. 

So I want to commend you for being so forthcoming, for answering our questions, and for testifying in a very thoughtful and, has been apparent to everybody, without any notes or materials or referring to any other people here, with great knowledge about both the matters on which you have worked in the law, generally. 

Thank you, Judge. 

ALITO: Thank you, Senator. 

KYL: I'll yield back. 

SPECTER: Thank you very much, Senator Kyl. 

Senator Kohl? 

KOHL: Thank you very much, Mr. Chairman. 

Judge Alito, after the first day of questions, it seems very clear that you believe there are certain bedrock principles in American constitutional law, principles like the right of one man, one vote in redistricting, the right of children not to have to go to schools unless they are integrated schools, the right for people to have privacy in making decisions about contraception and other rights. 

KOHL: Even though these are cases where the principles are raised and their application is debated on the margins, or even more fundamentally, I believe you have said and you're willing to say that you will not question the underlying principle involved on these issues. 

And I commend you for that. We are assured, and I believe that you clearly do stand by those principles. 

And yet when you are asked about Roe v. Wade and the following case of Casey, cases that say the government should not place an undue burden on a woman's right to choose, when we asked about principles of that sort, you are unwilling to make the same statement of support. 

Now, I understand that there will be cases where plaintiffs argue on the margins about Roe and Casey, where there are efforts to narrow or broaden these principles, just as there are cases that narrow or broaden the principles of one man, one vote, or the issue enunciated in Brown v. Board of Education, or Griswold. 

But you are willing to stand by those other legal principles, and yet you're not taking the same position with regard to the principles embodied in Roe and Casey. Could you explain that, please? 

ALITO: Senator, I think it's important to draw a distinction between issues that could realistically come up before the courts and issues that are still very much in play, which is to say is subject of litigation in the courts. 

And I felt comfortable about commenting on one person, one vote and, of course, Brown v. Board of Education, because those are not issues that are any longer the subject of litigation in our country, not the fundamental principles that are embodied in those decisions. 

And the Griswold case, likewise, concerns an issue that is not realistically likely to come before the courts. 

Roe, on the other hand, involves an issue that is involved in a considerable amount of litigation before the courts, and so that's where I feel that I must draw the line. 

ALITO: Because on issues that could realistically come up, it would be improper for me to express a view and I would not reach a conclusion regarding any issue like that before going through the whole judicial process that I described. 

KOHL: I think there's strength to what you say. But I also believe it's not inaccurate to say that these other issues on the margins, just as Roe on the margins, are still coming up and may yet come up before the court. 

And I still feel that while you are prepared to take a position on these other issues, which is almost, bottom line, clearly bottom line, you're not prepared to take that same position, which you could if you wished. You could take that position if you wished. 

And I think what that does suggest is that what you are saying is that it is possible, if a case comes before you, that you would take a look at the principles underlying Roe and Casey and see them in a way that would overturn Roe and Casey. 

Now, you may say, "Well, obviously, the answer is yes," but I just want to get that clarified for the record. 

ALITO: Well, what I would do if a case like that were to come before me, if I'm confirmed, is to follow the two-step process that I've talked about; which is first to consider the issue of stare decisis. 

And there's been a considerable body of case law now on this issue going back to Roe and, in particular, over the last 20 years. And in the Casey opinion, that was where the joint opinion began and where the joint opinion ended. 

ALITO: And then only if I got beyond that issue would I consider the underlying issue. 

And that's what I would do if the issue were to come up. And I don't believe that it would be appropriate, and it wouldn't even be realistic for me to go further than that. 

KOHL: That is correct. 

And in your mind, you're not prepared to say that the principle embodied in Roe and Wade or the principle embodied in Casey is clearly established law that is not subject, in your mind, to review. 

ALITO: Well, in light... 

KOHL: I mean, that is not your position, which I think you have said. But I think, at least for me, a clarification of that would be of some importance. 

ALITO: Well, in light of the current state of litigation relating to the issue of abortion -- and as I said, there's an abortion case before the Supreme Court this term and there are undoubtedly abortion cases before the lower federal courts; I know there are -- I don't believe that it's appropriate for me to go further than that in relation to that issue. 

KOHL: All right. 

Judge Alito, the president nominated you for the Supreme Court because of your record as a person and as a judge. 

Groups and individuals, particularly on the right, quickly endorsed you soon after your nomination because they feel comfortable with your record as you have established it over several decades now, where you've come from and where you are on the issues that are important to them. 

We also assume that you yourself are very proud of your record, as you should be. 

As a man of principle in conviction, which we believe you are, you worked on issues throughout your career as a Justice Department attorney that you believed in, that you cared about, that mattered to you. And I'm certain you would say that if you didn't believe in these things, you would not have gone to work for that particular Justice Department under that particular administration. 

And yet yesterday, during the hearing, you seemed to walk away from a lot of your record. 

For example, when asked about an interview where you supported Judge Bork, calling him, quote, "one of the most outstanding nominees of this century," you answered that you were just supporting the administration's position; that that wasn't your position. 

KOHL: And even then, you distanced yourself from a number of his views, after having said that he was one of the most outstanding nominees of this century. 

You are a man of conviction, I am sure you are, and you are not just a mouthpiece for people. You never have been and you never will be, which is to your credit. 

When asked about the strong position you took opposing a woman's right to choose in your job application, you said that only reflected how you felt then and did not suggest anything of what you believe now. What you felt then, you felt as a full-grown man, and you're saying that is not how you necessarily feel now. 

When asked about your membership in a radical organization at Princeton, a group that you cited with pride on your job application, you said that you could not remember anything about the group at all. 

When asked about the citation in your job application where you refer to the importance of traditional values and what you meant by traditional values, and then you answered, somewhat incomprehensibly, when you said that you were protecting children from, quote, "psychological threats that come from elements in the atmosphere is a traditional value," unquote. 

I also ask you about your statement on your job application that you disagreed with the Warren court's rulings on reapportionment, rulings that stand for the basic principle of one person, one vote. Indeed, you said your disagreement was so strong that it contributed to your decision to pursue a legal career. 

Yesterday, you stated that you, in fact, did not disagree with the principle of one person, one vote; not then, not now. 

So, Judge, this is the only time that the people of this country are going to have an opportunity to get a sense of who you are, what you believe in, what you stand for, who you are as a person. 

KOHL: I think you would say that the American people have the absolute right to know that without condition, without any political considerations; that the most important part of this hearing is that the American people get a chance, through our questions and your answers, to know who you really are. 

I would like to hope that you would say the job isn't worth it if we can't do that and do that well. And I believe you believe that. 

So I would like to ask how you bring into a sense of harmony some of these things that you have done and said throughout your career which have brought you to this situation in which you are now a person being nominated to serve on the Supreme Court, and some of the positions that you've taken in the last two days, which, in effect, distance you from some of the very things that you have done and stood for over a career that bring you to where you are today. 

ALITO: Senator, you mentioned a number of things, and I've tried to jot them down so that I could cover at least the major things that you mentioned. And I guess I'll take them in reverse order of chronology. 

You mentioned the statement in the 1985 statement relating to reapportionment. And I've tried to explain what I had in mind. 

The statement in the '85 statement talked about what I thought about reapportionment when I was in college. And the reason why I mentioned that -- why would I mention what I thought about constitutional law in college, before I had even been to law school? 

ALITO: What I was attempting to do was to explain the development of my thinking about the role of the judiciary and about constitutional law and, in particular, the development of my strong belief in judicial self-restraint. 

And the first place in which I saw a theoretical explanation of that doctrine, which I found persuasive at the time, was Alexander Bickel's book, "The Supreme Court and the Idea of Progress," which came out during the time when I was in college. I think it was the first book about constitutional theory, so to speak, that I had read. 

And he addressed the issue of one person, one vote. And that linked up in my mind with the experiences of my father and working of the reapportionment of the New Jersey legislature. 

And at the time when I was in college, there was an issue that was very much a live issue at the time as to what one person, one vote meant. 

Did it mean that you took this principle of one person, one vote and applied it with blinding literalness so that every district was exactly equal in population or very close to that, with a population deviation of under 1 percent, or could other factors that people thought were legitimate factors to be considered in drawing districts, such as respecting county lines and municipal lines -- was it permissible to take those into account? 

And that's what I know I was thinking about in reapportionment back in my college days. 

I referred, in the statement to traditional values, and I said yesterday, at this point in 2006, I can't say for sure exactly what was on my mind in 1985 when I made reference to traditional values. But I tried to describe some of the things that I probably thought of as traditional values. And I listed a number of them. 

And a lot of them had to do with the ability of people to live and raise a family in the sort of neighborhood where I grew up. 

ALITO: And I gave a little description of that earlier. 

So it would include things like being able to live in peace and safety. I think that's a traditional value, and that was very much at stake when I was in college in the late '60s and early '70s, and in 1985, because these were areas of high crime. And a lot of the work that I had done up to 1985, as an assistant U.S. attorney and working on criminal cases in the Solicitor General's Office, seemed to me to be involved with this issue of protecting people from the threat of crime. 

I think I mentioned the ability to raise children the way you want, to instill your values, not to have them subject to certain external threats. 

I've tried to think of why would these have been at issue in the mid-'80s, and they were at issue because of things like some of the things I was referring to earlier today about children being able to -- and students being able to express their religious views at school in a nondiscriminatory way, so that religious speech was not discriminated against. And that was very much at issue in the '80s. Congress passed the Equal Access Act at about that time to embody that principle. 

So those were some of the things that came to my mind as traditional values. 

The 1985 statement in reference to abortion, I have not distanced myself from it. I have said that that was a correct expression of what I thought in 1985 when I wrote it. It was written in 1985, and that was 20 years ago, and there's been a lot of case law in the intervening years. There was Thornburg and there was Webster and Casey, all of which involved direct challenges to Roe, and there were other cases applying Roe. 

So that's what I had in mind with respect to the matters that you've covered. 

KOHL: Last question: When we met privately, I asked you what sort of Supreme Court justice you would make, and your answer was fair when you said, "If you want to know what sort of justice I would make, look at the sort of a judge that I have been." 

Last week, The Washington Post did exactly that in an analysis of your record as a 3rd Circuit judge for the past 15 years. They analyzed 221 cases that you sat on in which the court's decision was divided. I recognize that in every case there is a difference and they must be decided on the facts. Nonetheless, this data reveals patterns and tendencies in your decisions, among other things, as you may have recollected from the Post article. 

It was found that in civil rights cases you sided against three out of every four people who claimed to have been victims of discrimination. This was a significantly greater rate than other judges in a national sample of cases. 

Of 33 criminal cases the newspaper analyzed, you sided with the criminal defendant only three times. This was a very much lower rate than the national sample. 

In immigration cases, The Post also found that you sided with immigrants who were trying to win asylum or block deportation only in one out of eight cases analyzed. This was much less than most judges in a national sample. 

Now, The Washington Post was not the only one to perform an analysis of your record. Noted constitutional law professor Cass Sunstein, for example, found that, quote, "When there is a conflict between institutions and individual rights, Judge Alito's dissenting opinions argue against individual rights 84 percent of the time." 

So what can we glean from these analyses of Judge Alito, and what might they indicate with respect to your posture on cases should you become a justice of the Supreme Court? 

ALITO: On the discrimination cases, Senator, I think that the statistic that Senator Kyl just cited speaks directly to that: a comparison of the number of times in which people claiming discrimination prevailed in the cases won my vote, compared to the average for circuit judges in general. 

ALITO: And I think that that my statistics and the statistics for circuit judges in general have to be viewed against the background of -- have to be viewed with a recognition of the way in which these discrimination cases come up through the court system. 

Most of them are cases in which the person claiming the violation lost in the district court. And that means that a district court judge -- and they're not always right, but most of the time they're right and they're conscientious people and they apply the same law that we do -- they found that these were not meritorious cases. 

And so if you start out with a group of cases that have already been found to be not meritorious, it stands to reason that probably not a very high percentage of them will ultimately be found to be meritorious. 

On the immigration cases, I take very seriously -- and I don't know what the statistics are in this area, but I can tell you this: that I take very seriously the scope of review that I'm supposed to perform as an appellate judge. 

And that is usually dictated by Congress. In the area of immigration, Congress has spoken clearly. 

And as to factual decisions that are made by an immigration judge, what Congress has told us is, "You are not to disturb those unless no reasonable fact finder could have reached the conclusion that the immigration judge did." 

And I very often see a record where I think it's doubtful, I say to myself, "I might have decided this differently, if I were the immigration judge." But I wasn't there. I didn't see the witnesses testify personally. 

And Congress has told me what my role is there. My role is not to substitute my judgment for that of the immigration judge. My job is to say, "Could a reasonable person have reached the conclusion that the immigration judge did?" And if I find that a reasonable person could have reached that conclusion, then it's my job to deny the petition for review. And that's what I do in those instances. 

KOHL: I appreciate that. I would just comment, again, that your siding with immigrants who are trying to win asylum or block deportation -- you sided only in one out of eight cases that they analyzed. 

KOHL: And this was much less than most judges in the national sample who were about evenly divided in their decisions on these issues. This was what their analysis indicated. 

So, for whatever it's worth, you were one out of eight, and a national sample of judges was about 50 percent. I only bring that up for your comment. 

I thank you very much, Judge Alito. 

And, Mr. Chairman, I thank you. 

SPECTER: Thank you, Senator Kohl. 

We have made some inquiries about the issue which Senator Kennedy has raised about the Concerned Alumni of Princeton. As to the letter, I am advised by my chief of staff, Michael O'Neill, that he first saw a computer letter, and that he believes later a letter was delivered to the Judiciary Committee headquarters, apparently near Christmas, perhaps on Christmas Eve. And our custom is to log letters in, and the letter was never logged in. 

But I repeat and confirm that I have never seen this letter until I saw a computer printout of it about an hour ago. Mr. O'Neill did talk to me about it over the break between Christmas and New Year's. I traveled to Iraq. That's the first time on the Judiciary Committee schedule I could find a few days to get away. 

And Mr. O'Neill reminds me that we talked about it on the phone and I thought the matter was unmeritorious, not worthy of the time of the commission based on all that I knew about it. 

SPECTER: Very brief conversation. And we get so many requests and there are so many items that are largely staff driven, not that staff-driven matters aren't important, but if something is of significance, you customarily expect a member to tell you about it. 

Senator Kennedy and I frequent the gym at the same time and talk all the time, and never mentioned it to me, nor did he take it to the ranking member. 

I make it a point that Senator Leahy's calls are the first ones I return, and I have a fair number, but I return all calls from members very, very promptly. And had this matter been presented to me, I would have given it more attention than I did on that telephone call that I have referred to. 

So much for matters which are not quite as relevant as what I'm about to come to. 

The New York Times published a story about this on November 26th, and my chief of staff, William Reynolds, talked to David Kirkpatrick, who said he had gone through all of the records. And as the story in the public domain has stated, these are the records that the Library of Congress, the Rusher records, those records and others at the library at Princeton give no indication that Judge Alito was among the group's major donors. He was not an active leader of the group. 

SPECTER: And two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role. 

Well, the obvious thing to do is to call Mr. Rusher, which Mr. O'Neill did over the lunch hour. And Mr. Rusher said he'd be glad to have us look at his records and that he'd received a request from Congressional Research Service, but it was from an unnamed requester, and he declined. 

But he said, had he received a request from Senator Kennedy or some member of this committee, he would have made the records available. 

So, in Senator Kennedy's absence, I asked a staffer to tell him that we had moved ahead with it; I didn't want waste any time. 

And Mr. O'Neill has contacted Senator Kennedy's staffers and they are en route or at the Library of Congress to look at these records so that we can confirm what the New York Times' David Kirkpatrick has had to say. 

I am just a little puzzled at the issue being raised in this manner. We talk all the time. And I'm just a little surprised that Senator Kennedy hadn't talked to Senator Leahy or hadn't talked to me before he made a request for access to the Rusher records, talks about a subpoena, talks about a ruling of the chair, talks about overruling the chair -- just a little tussle. 

But the substantive matters are being attended to. 

SPECTER: And I share Senator Kennedy's concern that we have all the facts, all the facts, all the facts. And this is a lifetime appointment, it's a matter of tremendous importance, and I wouldn't want to find on some occasion that something comes to light which would bear on this nomination that we could have found out had we had been more vigilant. 

Senator Kennedy? 

KENNEDY: Thank you, Mr. Chairman. 

I welcome the fact that we're going to have the access to those records. 

The fact remains, I didn't anticipate -- I thought that since this was a major issue on the 1985 application of the nominee for a new job, this membership with the Federalist Society and the CAP organization, I thought as a matter of routine that we'd have access to those records. 

And it was a letter to you, as we would do, with follow up with the staff, which is the usual procedure here. I regret I haven't been down in the gym since before Christmas... 

(LAUGHTER) 

... so I missed you down there. 

But the important fact is we're going to get that information. I think that's what's extremely important. 

And, quite frankly, if we had been able to get what I think were more responsive answers by the nominee during the course of the exchange today, I don't think probably it would have even been necessary. 

But I don't think you'll be able to look through transcript of the exchanges that we had with the nominee and not feel that we have an important responsibility to follow up. 

So I'm grateful we will have that chance to follow up. And look forward to the further considerations of evaluation of the material and further considerations of the hearing. 

SPECTER: Enough said. 

Senator Leahy, you have a unanimous consent request? 

LEAHY: Yes. 

Mr. Chairman, as I had understood, we'll be going back to another round. So if I misunderstood, you'll be sure to correct me. 

But as I understood Judge Alito, he saw no connection between his unified executive theory and the use of presidential signing statements. In fact, the Wall Street Journal reports the president has cited the unitary executive 103 times in presidential signing statements. So I'd like to put that article, some articles from the Post and the Globe relevant. 

In fact, the Defense bill, McCain torture amendment he specifically employed and I'd like to make that part of the record. 

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

Senator DeWine, 20 minutes? 

DEWINE: Thank you, Mr. Chairman. 

Judge, yesterday you and I discussed the concerns that I have about the Supreme Court's willingness to strike down laws passed by this Congress and by state legislators. This lack of what I consider to be appropriate deference by the court endangers our ability to protect the rights of our citizens. 

One of the groups that I'm most concerned about in that context is people with disabilities. 

Congress has passed a number of laws to assure that people with disabilities have equal access and equal opportunities. I think it's critically important that we make sure that those with disabilities have these opportunities to participate fully in our society in every way possible. 

As you know, Judge, the Americans With Disabilities Act was a landmark piece of legislation passed by this Congress in our ongoing efforts to assure that people with disabilities are treated fairly. 

The 1999 case of Olmstead v. L.C. was an important Supreme Court case interpreting this law. As you know, Olmstead held that Title II of the ADA required states to serve individuals with disabilities in community settings whenever possible instead of segregating them while providing them with care. 

DEWINE: Olmstead was decided after the case of Helen L. v. DiDario, a case which, of course, you're familiar with, a 3rd Circuit case that reached essentially the same conclusion. 

Although you were not on the Helen L. panel, you, along with four other judges, voted to rehear the case en banc. 

So let me ask you, Judge, if you could, to discuss with us your reasoning behind voting to rehear the Helen L. case. And I'd like to ask you, did that vote to rehear the case mean that you thought that Helen L. case was decided incorrectly, or that you opposed the later holding in Olmstead. 

Let me also ask you, now that Olmstead has been decided, do your reasons for voting to rehear the Helen L. case still apply? And do you have any concerns with the Supreme Court's holding in Olmstead that would cause you to question the validity of that particular decision? 

ALITO: I certainly don't have any concerns about the decision in Olmstead. 

I would have to look at my own file in the Helen L. case -- and I doubt that there is any file in the case at this point -- and see if there's anything in there to indicate specifically why I voted for rehearing in the case. 

But I can say this: that I read the decision again and one important part of the opinion in the case attempts to distinguish an earlier 3rd Circuit case that seemed to be somewhat closely related, closely related to the issue that was at hand. And I noted there were five votes for rehearing in the case, and that's quite unusual. It's unusual for there to be that many votes for rehearing. 

I would say most of the time when we vote for rehearing, the reason is because we think that there may be an inconsistency in our court case law. 
And that doesn't necessarily mean that we think that the decision we're voting to rehear was incorrect.

ALITO: Quite often, we think the decision that we are voting to reconsider is correct but that it is inconsistent with a prior case that needs to be overruled. 

And we're very scrupulous about following our own precedents, not ignoring them. So if we have a precedent out there and it seems to us to be wrong and the issue comes up in a later case, then our mechanism is to vote to rehear. 

And that happens very often. And my guess, based on what I can tell just from reading the opinion and looking at the votes for rehearing and the judges who voted for rehearing, that that could have been what was going on. 

DEWINE: I appreciate your answer, Judge. 

As the chair of this committee's, Subcommittee on Antitrust, I have seen that it is very often very hard to draw the line between anti-competitive conduct and, frankly, just good old-fashioned competition. 

Let me give you an example that Senator Kohl and I have done a great deal of work on, and, frankly, Senator Kohl has really taken a lead on. 

Many hospitals buy their supplies through group purchasing organizations known as GPOs. These organizations purchase products for large number of hospitals at one time, which decreases prices but also gives them extraordinary power over which products get used and which ones don't get used. 

Often GPOs reach deals with major suppliers to buy items in bundles; in other words buy a number of different products and those suppliers in order to get discounts on all of the products. Saves money but it also means that smaller companies, which may only offer one of these products, have really a hard time competing with the large discounts being offered. The result is that smaller companies have difficulty getting into the market even if their one specific product may be better or may even be cheaper. 

Judge, you had a case that dealt with bundling like this. It was, of course, the 3M v. LePage's case. In that case, 3M, which sells Scotch tape, was selling it as part of a bundle with other products. The result was that LePage's, which was offering a cheaper, competing tape, was having a hard time getting stores to sell its tape because if the stores did, they would have to give up the chance to save money on all the other 3M products that they carry. 

The majority ruled against 3M, but you dissented. I wonder if you could please explain your reasoning behind that dissent, and explain what type of bundle discounts you think would violate the antitrust laws. 

ALITO: Well, let me preface what I'm going to say by saying that I'm not an antitrust expert, and so I plod my way through these antitrust issues when they come up. 

But this was a tough one, and it was a monopolization case. And it required an examination of all the factors that were relevant to the determination of whether 3M was engaging in monopolization. 

3M was selling the product, as I recall -- it was selling these products -- it was not selling them below its cost. It was selling them above its cost. But 3M, because of its scale or because it was more efficient and was able to produce its product more cheaply. 

And I remember looking at the authorities that had discussed this and the writing of leading antitrust experts on bundling issues. 

ALITO: And that factor, taken together with the other factors in the case, persuaded Judge Greenberg and I -- and we were the majority on the case at the panel level -- that there wasn't sufficient evidence of monopolization here. 

And then when the case went en banc, the court as a whole came out the other way. 

But my understanding of the state of the scholarship on this issue right now and on the way economists view the issue is that I believe that there are many of them who believe that a situation like this does not involve monopolization, that this is not a way in which a company like that can engage in a predatory practice over a period of time. 

But there's uncertainty, really, about how the monopolization standard applies to issues of bundling. So I think it's quite up in the air and should it come up again, I think it merits reexamination. 

DEWINE: Thank you, Judge. 

Judge, you've heard a lot of discussion, and many of us have said that we don't like it when judges legislate from the bench. 

For judges to properly perform their function, obviously, it's crucial that they attempt to put their own policy preferences aside in the cases before them. But it seems to me that this is a lot easier said than done. 

Our Constitution is not a dictionary. It contains a number of very broad, undefined phrases. 

Let me give you some examples. The Fourth Amendment prohibits unreasonable searches and seizures. The 14th Amendment says that the states shall not deprive any person of liberty without due process of law. The Eighth Amendment prohibits cruel and unusual punishments. 

And I'm sure you can supply a lot more examples than I am. 

When confronted with such broad phrases, like "unreasonable, liberty, cruel, unusual," how do you know whether you are making policy or merely interpreting the Constitution itself? 

And what tools will you use as a Supreme Court justice to ensure that your personal views do not play a role in your decision-making? 

ALITO: In all the areas that you mentioned, there is now a considerable body of case law. And that is a real limitation on the exercise of judicial power. And that is one of the important reasons for the doctrine of stare decisis. 

In the 78th Federalist Paper, when Alexander Hamilton was responding to the people who were worried about this power of judicial review, who thought that it would give the judiciary too much power, he specifically cited the fact that members of the judiciary would be bound up by precedent and this would restrain them; this would keep them from injecting their own views into the decision-making process. 

Under the Fourth Amendment, there's an enormous body of case law now, and there are many types of searches that it's established in case law that a warrant is required. There are types of searches where it's established now that the activity can be conducted with reasonable suspicion, a Terry stop, for example. Other types of searches require probable cause. And there are many specialized types of searches, administrative searches, road blocks constructed for certain purposes, border searches and so forth. 

Under the due process clause of the Fifth Amendment and the 14th Amendment, there's a great body of case law on procedural due process. And most of the due process issues involve procedural due process, what sort of process is required. 

There is a standard for cases involving the substantive component of that. 

Under the Eighth Amendment, since the Supreme Court in Gregg v. Georgia ruled that the death penalty is permissible under certain circumstance. There's a very -- a large body and a complex body of case law within which a judge would work in deciding cases in that field. 

DEWINE: Judge, let me turn to an area that I talked with Judge Roberts about, and that is free speech in the public square. 

DEWINE: To me, there's perhaps no right in our Constitution that is really as important as the freedom of speech. 

The heart of the First Amendment is the idea that people have a right to speak their mind but also be heard on matters of public concern. 

Traditionally, our citizens have expressed their opinion on public issues by turning to the public square. They do it in parks, in streets, in sidewalks, anywhere that people gather. It's as old as the country and older than our country. 

Lately, however, I believe that we're seeing a disturbing trend. 

Many cases governments have sought to restrict speech in the public arena; sometimes with success, sometimes without. 

Let me give you some examples. One recent case, a Wisconsin woman was kicked off a city bus when she tried to distribute a book containing Bible stories to individuals sitting next to her. 

In many towns and cities across the country, individuals are prohibited from placing political signs on their own property. They're told what size they can put out. They're told the times they can put it out, the dates they can put it out, et cetera. 

In many public places, individuals have been forced to hold up signs or protest and been confined to free speech zones, far away from the event that they wish to protest. These individuals doing nothing more many times than just standing there with a sign. 

These sorts of restrictions concern me because they limit the ability of individuals not only to speak but also to be heard in public places, people who want to talk about politics, religion or any other matter of public concern. 

I think we need to be careful as a society before we limit what people can say and where they can say it. 

Let me ask you: How do you approach challenges to government restrictions on the ability of individuals to speak and be heard in public places? 

And what, Judge, factors do you consider when deciding which restrictions on speech in the public square are proper under the First Amendment and which ones are not? 

ALITO: I think that freedom of speech and freedom of the press and all the freedoms set out in the First Amendment are matters of the utmost importance. 

ALITO: Freedom of speech is not only important for it's own sake, but it is vital to the preservation of our form of government. And I think that if anybody reviews the opinions that I've written in the area of freedom of expression and other First Amendment... 

DEWINE: I've looked at some of them, at least. 

ALITO: ... they will see that I strongly support those rights. 

The issue of speech in particular places is a daunting issue, where the Supreme Court has addressed it by developing the forum doctrine and they have identified what they call public forum, which would be something like a public street, where people's ability to speak is at the maximum. 

At the other extreme, there's a private forum. My chambers would be a private forum; a senator's office would be a private forum. Someone would not have a right to come in from the street and speak in a place like that. 

And then there are what they call limits of public forums, or dedicated public forums or fora, places where people can speak freely, but only at particular times on particular subjects, a place that's decided to free speech, but only on a particular subject, for example. 

That's the way they analyze it. 

Now, some people would say that there are developments in society that have resulted in the shrinking of public fora that make it more difficult for people to express themselves. I know that I'm not up to date on New Jersey case law under the New Jersey constitution, but it's my belief that our state has read this -- has a different forum doctrine in things like shopping centers -- malls that are privately owned are considered to be public fora under a New Jersey state law. I think some other states view it that way and that's a competing way of looking at this problem. 

An important principle -- where I have dealt with this in my cases, as I can recall, is the issue of freedom of speech in a limited public forum. And even in a limited public forum, what government cannot do is engage in viewpoint discrimination. 

ALITO: If the government opens up a particular forum for discussion of a particular subject, you can't say, "But we're only going to allow people who express this viewpoint and not another viewpoint." 

Viewpoint discrimination really goes to the heart of what the First Amendment is intended to prohibit, so that even in a limited public forum, where people are restricted with respect to what subject that they can talk about, government can't impose a viewpoint discrimination. 

DEWINE: Well, it just seems to me, Judge, that we could talk about this issue all day, and we're not going to, obviously, but that there is a shrinking public forum, and the opportunities many times are going away. 

I guess you could make the other argument that because of modern technology, there are other opportunities, with the Internet, et cetera, that they are opening up for people to communicate and to make their point well known. 

But a lot of the places that people historically have talked and made their point well known are shrinking. You talked about the malls, which certainly in most states are totally off limits to any kind of display of that kind of debate. 

Let me turn to commercial speech, if I could. Under current law, commercial speech is protected by the First Amendment, but it has never had the same level of protection as other forms of speech, such as political speech. The difference in treatment has puzzled a number of commentators and judges. 

In reviewing your cases, I noticed that you are certainly familiar with the issue of commercial speech. In Pitt News case, for instance, you struck down a Pennsylvania statute that barred paid alcohol advertisements in newspapers affiliated with colleges and universities. 

Let me ask you, Judge, based on your experience with this and other cases, what is your view about the distinction between commercial speech and noncommercial speech, and is there a common- sense difference between these two types of speeches? And have you found that case law supports any distinction? And how, if confirmed, will you approach the so-called commercial speech claims under the First Amendment? 

ALITO: Well, there's a debate about how much protection commercial speech should have. 

There are those who argue that the distinction between commercial speech and noncommercial speech should be eliminated. The Supreme Court views commercial speech differently. And while it is strict about any limitation regarding accurate information about prices it limits, it permits greater restriction of commercial speech under current case law than it does with respect to other types of speech. 

And the theory, as I understand it, is that commercial speech is more durable. At least that's part of the theory. In other words, there's such a great incentive for people who are selling things to engage in advertising and other forms of commercial speech that it's less likely to be driven out than speech on other issues where the financing may not be as extensive. 

In the Pitt News case, what I had to apply was the question of whether there was sufficient tailoring. 

There was a compelling interest for what was done there, which was to restrict advertising about alcohol in a publication that was affiliated with an educational institution. But based on the facts there, it just did not seem to be tailored at all. 

This was a newspaper that, I think, 75 percent of the people who received it in its connection with the University of Pittsburgh, were people over the drinking age. 

And maybe even more to the point, this publication was distributed free on campus and in newspaper boxes next to a number of others that contained commercial publications. 

And they both advertised establishments and events in the area of the university. And the others were full of information about alcoholic beverages and those were free too. 

So while the problem of underage drinking and abusive drinking on college campuses is a very serious issue, and the Pennsylvania legislature recognized that and we certainly didn't question that -- it is an issue of critical importance -- it seemed quite unrealistic to think that this regulation, which only applied to the Pitt News and not to these other publications, was tailored sufficiently. 

DEWINE: I thank you, Judge. 

Interesting set of facts. I thank you, sir. 

SPECTER: Thank you, Senator DeWine. 

Senator Feinstein? 

FEINSTEIN: Thank you very much, Mr. Chairman. 

I want to try one more time. 

First of all, let me just say this. Senator Durbin said that Justice Roberts retired the trophy on performance. 

If that's true, you've retired it on equanimity. I really think you're to be congratulated. 

This is this morning's Washington Post: "Alito says he will keep an open mind." But what concerns me -- and obviously this is on Roe -- is that despite 38 tests, despite 33 years, despite the support of a majority of America, you also said yesterday that, "precedent is not an inexorable command." And those are the words that Justice Rehnquist used arguing for the overturning of Roe. 

So my question is, did you mean it that way? 

ALITO: The statement that precedent is not an inexorable command is a statement that has been in the Supreme Court case law for a long period of time. And sitting here, I can't remember what the origin of it is, but I would bet that it certainly has been used in cases in which the court has invoked the doctrine of stare decisis and refused to go ahead and overrule. 

FEINSTEIN: I always believe everything I read in The Washington Post. 

(LAUGHTER) 

ALITO: Well, that is an important principle. 

(LAUGHTER) 

FEINSTEIN: I don't know about that one, but... 

ALITO: And I -- not the principle of believing everything in The Washington Post, but the principle that stare decisis is not an inexorable command, because then we would be stuck with decisions like Plessy and they couldn't be overruled except through a constitutional amendment. 

But when an issue is one that could realistically come up, the people who would be making the arguments on both sides of the issue have a right to have a judiciary of people with open minds. And that means people who haven't announced in advance what they think about the issue and, more importantly, people who are not going to reach a conclusion until they have gone through the judicial process. 

ALITO: And it's not a facade, it's not a meaningless exercise. It's a very important one. 

FEINSTEIN: Let me try this: I'd like to read a line of questioning, of questions, that Senator Specter asked now-Chief Justice Roberts. And then I would like to ask this question: How do you disagree with this? 

Here's the questions: Specter: "Judge Roberts, in your confirmation hearing for the circuit court your testimony read to this effect, and it's been widely quoted. Quote, 'Roe is the settled law of the land,' end quote. Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?" 

Roberts: "Well, beyond that. It's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes." 

Specter: "You went on to say then, quote, 'It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision, so it has added precedental value.'" 

Roberts: "I think the initial question for the judge confronting an issue in this area, you don't go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding." 

And Specter says: "And you went on to say accordingly, 'It's the settled law of the land," using the term 'settled' again." 

And then your final statement as to this quotation: "There's nothing in my personal views that would prevent me from fully and faithfully applying the precedent as well as Casey." 

Where do you differ? Since Justice Roberts made that statement in a confirmation hearing -- he not only got confirmed, he's the chief justice -- it seems appropriate for to you comment on it and say where you might differ with it. 

ALITO: Well, the statement covers a lot of ground. And let me try to remember the major points. I certainly agree with the point... 

FEINSTEIN: I can give it to you if you'd like? 

ALITO: Certainly. I'd be happy to. 

FEINSTEIN: Would that be helpful? Would somebody take it down to him? Show him the place. 

(CROSSTALK) 

(UNKNOWN): Be on the front page tomorrow? 

(LAUGHTER) 

ALITO: Well, Senator, I certainly agree with the point that the chief justice made about separating any personal views he has from anything that he would do as a member of the Supreme Court. I emphatically agree with that. That's the essence of what a judge has to do. 

I certainly agree that Roe and Casey and all of the other decisions in this line are precedents of the Supreme Court. And they are entitled to respect under the doctrine of stare decisis. To the extent that some of the earlier decisions have been modified, then obviously the most recent ones are the relevant provisions of the Supreme Court. 

I've agreed, I think, numerous times during these hearings that when a decision is reaffirmed, that strengthens its value as stare decisis. I agree that when the Supreme Court entertains a challenge to a prior decision and says, "We're not getting to a re-examination of the merits of the issue, we think stare decisis counsels against our going to that point," then that is a precedent on precedent. That seems to me to be entirely logical. 

And we have a long line of precedents now relating to this issue. I have said that stare decisis is a very important legal doctrine and that there is a general presumption that decisions of the court will not be overruled. There needs to be a special justification for doing it, but it is not an inexorable command. 

FEINSTEIN: But you do not agree that it is well settled in court? 

ALITO: I think that depends on what one means by the term "well settled." 

FEINSTEIN: I actually agree with you because others have said that and then gone out and voted to overthrow it. So it's like, "I have no quarrel with it." 

ALITO: Well, let me just say this: As a judge on the court of appeals or if I'm confirmed as a justice on the Supreme Court, it would be wrong for me to say to anybody who might be bringing any case before my court, "If you bring your case before my court, I'm not even going to listen to you; I've made up my mind on this issue; I'm not going read your brief; I'm not going to listen to your argument; I'm not going discuss the issue with my colleagues. Go away. I've made up my mind." 

That's the antithesis of what the courts are supposed to do. And, if that's what "settled" means, then I think that's not what judges are supposed to do. We are... 

FEINSTEIN: Let me interrupt you for a moment, if I may. 

You were willing to give your view on one man, one vote. And yet there are four case pending in the court right now on one man, one vote. 

And that's where I have a hard time. The cases are LULAC v. Perry, Travis County v. Perry, Jackson v. Perry and G.I. Forum of Texas v. Perry. 

That's where I have a hard time. If you're willing to say that you believe one man, one vote is well settled and you agree with it, I have a hard time understanding how you separate out Roe. 

I understand why. If you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know. 

ALITO: I don't think it's appropriate for me to speak about issues that could realistically come up. 

And my view of Brown v. Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged, not within the legitimate scope of constitutional debate any longer that there should be facilities that are segregated on the basis of race. 

ALITO: And that's where I've tried to draw the line. If an issue involves something that is in litigation, then I think it's not appropriate for me to go further than to say that I would be very respectful of the doctrine of stare decisis and I would not reach a decision on the underlying issue if one were to get to it without going through the whole decision-making process. 

FEINSTEIN: OK, I'll let you off the hook on that one. 

One of the reasons that some of us are so concerned about the commerce clause is because we see major law being overturned if the Rehnquist court continues its march. Let me give you an example in the environment. And these are cases that will be before you, so I don't expect you to comment on the case but to understand. 

The Clean Water Act was passed in 1972, and it included a provision permitting citizens or citizen groups to bring lawsuits for violation of the act. In Public Interest Research Group of New Jersey v. Magnesium Elektron, a citizens environmental group sued a chemical manufacturer under the Clean Water Act for polluting a river used by members of the group. 

The trial court found that the defendant committed 150 Clean Water Act violations. On appeal you were the decisive vote in a 2-1 decision overturning the trial court's decision, even though it was undisputed that the defendant committed the 150 violations of the Clean Water Act. 

Your decision, as I understand it, was based upon your conclusion that the environmental group did not have standing to sue under the Clean Water Act because even though members of the environmental group had stopped using the river due to the pollution, they did not prove any injury to the environment. 

The decision, if broadly applied, would have gutted the citizen lawsuit provision of the Clean Water Act. 

Now, three years later, in Friends of the Earth v. Laidlaw, the Supreme Court, in a 7-2 decision, rejected this reasoning and held that a citizen only needed to show that he or she was harmed by the Clean Water Act violation. And didn't need to prove a broader injury to the environment. 

FEINSTEIN: So you see where the concern comes with respect to overthrowing something on a technicality that can have enormous implications. 

Do you agree with the Supreme Court's decision in Friends of the Earth v. Laidlaw. 

ALITO: Well, it's a precedent of the court, and I have respect for it. And as you mentioned, it's governed by stare decisis, and as you mentioned, it was decided after the decision of my court in the Magnesium Elektron case, and I haven't gone back and thought about the question of whether Laidlaw creates doubt about the soundness of the decision in Magnesium Elektron. 

If it does, then it does, and if the issue were to come up again before the 3rd Circuit, for example, and I sat on the issue, then I would follow Supreme Court precedent if I concluded that it was in conflict with the decision of a prior court of appeals decision. 

Our jurisdiction under the Constitution is limited to cases and controversies. The Supreme Court has said that means you have to have a plaintiff who has suffered injury in fact. 

And although there was a disagreement on the panel about the procedure we should use going forward, everybody on the panel agreed -- Judge Roth and I who were in the majority and Judge Lewis who dissented on a procedural point that I'll get to -- that the plaintiffs in that case had not even alleged personal injury. 

They alleged that they enjoyed the Delaware River in a variety of ways. As I recall, they walked along the canal path, they ate fish from the river, they drank water from the river. But there was no evidence that the discharges into a creek some distance upstream from the river had had any effect whatsoever on the river and, therefore, there was nothing to support a claim that they were personally injured by the discharges of this plant.

ALITO: Now, there would presumably be other people who could take legal action against the plant for its violations of the law, and nobody would condone that. But our obligation under Article III is to confine ourselves to cases within our constitutional jurisdiction. 

FEINSTEIN: Of course, you're going have two cases challenging the application of the Clean Water Act to nonnavigable waters under the commerce clause. And as you probably know, we have lost 90 percent of the wetlands in the United States. This is a very big deal. 

And there are many of us that would hate to see wetlands be made virtually impossible because it's very difficult to prove when something becomes navigable as opposed to nonnavigable, which is the question before the court. 

I only say that because if this march to restrict Congress, you could strike down the Endangered Species Act, you could strike down the Clean Water Act, you could strike down the Clean Air Act, and I think that would be catastrophic for the United States. 

If I can, let me just switch to another topic. And a year ago, all of us became very concerned and involved and some horrified with the Terry Schiavo case. 

As I recall the case, the local courts held that her life support could be turned off, the state supreme court held the same thing, and then there was an effort, and I think a federal district court held it to bring it up to the Supreme Court. 

What do you believe the role of the federal courts should be in the arena of end-of-life decisions? 

ALITO: There's a constitutional issue, certainly, at the bottom of that, and there are issues of jurisdiction. There are statutory issues. And Congress specifies the jurisdiction of the lower courts. And so Congress can give us a role in decisions of this nature or Congress can keep the federal courts out of it and leave it to the state courts where, for the most part, issues in this area have been adjudicated. 

But if there is a federal constitutional right involved then, of course, the federal courts have traditionally been a forum for the adjudication of federal constitutional rights. 

The underlying statutory, I'm sorry -- the constitutional issue is the one that the Supreme Court addressed in the Cruzan case and in the case of Washington v. Glucksberg. 

And this is obviously one of the most sensitive issues that comes up in our legal system. It involves something that a lot of people have had to face and a lot more people are going to have to face, decisions involving the end of life. 

ALITO: And with the advances in medical technology, this is going to be a very tough issue for an awful lot of people. 

In Cruzan, the court proceeded on -- they said: We assume that there is a constitutional right to refuse medical treatment that a person doesn't want. And there certainly has long been a common law right to refuse medical treatment that a person doesn't want. 

If somebody gives you medical treatment and you say I don't want it, and they perform an operation on you or do something like that, that's a battery under the common law and you can be sued. 

And the Supreme Court assumed that that was a fundamental right under due process, but said that there wasn't a violation of the right under the circumstances in Cruzan, where the state of Missouri had imposed certain regulations that had to be complied with before a person who was comatose could be taken off life support. 

And then in Washington v. Glucksberg, they addressed the issue of whether there was a constitutional right to assisted suicide, and they concluded that there was not but there were -- and they applied the standard to be applied under the due process clause for its substantive component, whether a right is firmly rooted in the traditions of our country and implicit in the concept of ordered liberty. 

But there were some concurring opinions that recognized that these were issues that were on the cutting edge of medical technology -- let me put it that way -- or that they were issues on which more empirical evidence might become relevant in the future. 

FEINSTEIN: Thank you very much. 

I notice I just have 40 seconds left. 

Will we have another round, Mr. Chairman? 

SPECTER: Well, that's something that we'll talk about. 

I would very much like to finish today. 

SPECTER: As I said earlier, that may be an ambitious schedule, but let's talk about it. 

FEINSTEIN: Thank you. 

SPECTER: Senator Sessions? 

SESSIONS: Thank you, Chairman Specter. 

Judge Alito, I want to thank you for your patience and good spirit and your thoroughness in answering questions, and you've been very forthcoming. I think very few people could disagree that, on case after case that you've been asked about, you've gone as far as you legitimately should go to express your understanding of the law and what's important there. 

I know your entire record has been examined extensively. You think about it -- the FBI does a background check, they found out every place you've lived and talked to your neighbors and checked your criminal histories and the Department of Justice has a big inquiry that they do before they submit your nomination to the president or the president submits your nomination to the Senate. 

American Bar Association has interviewed 300 of your colleagues before they made their recommendation that you were a well-qualified in a unanimous vote. 

The Senate has its questionnaire. Outside groups look at it and create studies and data. They read everything you have written to find things that they might be unhappy with. 

And so I think all in all, you're coming through this with very little mud upon you, for which I congratulate you. I think it's something that you can be proud of. Most of us on this side of the aisle would not like to have our record scrutinized in the way yours has been. 

I know some us have made mistakes in our statements already in the hearing that we have to admit. And I'll admit that I was one of them. I first said that you were ranked number four in being the most independent judge out of 900 judges in the country. As I see the numbers more clearly, you were number 4 out of 98 appellate judges examined in that system. 

But that still shows that you're an independent, nonideological judge. One of the factors you used was whether or not you always agree with nominees of your party. 

SESSIONS: I think that speaks well for your record, and that's why you've gained such a broad respect of your colleagues. 

You know, just want to briefly mention some of these studies that go into your background. People have looked at it incredibly to the most minutest detail. 

And you asked earlier about -- saying that you rule only one out of eight times for immigrants seeking asylum, but in looking at the asylum cases nationwide, most of those are -- the government's position is affirmed. It's already been decided by a lower court or administrative body. You're simply reviewing their decision. 

But in immigrant asylum cases nationwide, the court of appeals generally rule for the asylum seeker 11 percent of the time. During your record on the bench, you ruled for asylum seekers 18 percent of the time. And in and your published opinions -- the average court of appeals judge in America ruled for immigrants 8 percent of the time; in your published opinions you rule for them 19 percent of the time. 

So I think this not only shows the charges against you there are not well placed, it shows just how carefully your record is being examined by people as you move through the system. 

Another example, civil rights. I think your critics have cherry- picked from some of your 4,800 cases that you've ruled on. In your opinions on civil rights, your panel was unanimous 90 percent of the time. And when you sat on a panel where both the other judges were Democratic appointees your decision was unanimous 100 percent of the time. 

So I think that speaks well for your overall record on civil rights. Certainly it would indicate that you're not hostile to a legitimate civil rights complaint. 

SESSIONS: You were asked about one environmental case by Senator Feinstein. And you ruled on that case based on standing. That's an important issue in the legal system. Don't you agree? 

ALITO: It is. 

SESSIONS: Well-recognized principle. 

ALITO: It's a constitutional principle. 

SESSIONS: It does not have to do with whether you were for or against the environmental issue in question but simply whether the person bringing the suit was a legitimate person to bring that suit. 

ALITO: That's right. And it doesn't have anything to do with Congress' power to regulate the environment under the commerce clause. That's a separate question. 

Congress -- it's totally separate. One has to do with the scope of congressional power; the other has to do with who can bring the suit. 

SESSIONS: And with regard to environmental cases, you have rendered, according to one of these studies -- you've authored six environmental opinions; you sided with the environmental regulatory body in five of those six opinions. 

Indeed, Professor Cass Sunstein, who had served as an adviser to the Democratic members of this committee on changing the ground rules of confirmation -- which was really a precursor to the commencement of a filibuster -- Professor Cass Sunstein said this about you, quote, "This is a judge who, if the text is pro-environment, he's very likely to follow it. This is not someone who, like some judges, has a kind of pro-business orientation in his approach to the law." 

I think that's also a statement that you can take pride in. I would offer for the record, Mr. Chairman, another article by Stuart Taylor of the National Journal, Monday December 12, in which he, in a very effective way, dismisses much of the complaints that have been made against Judge Alito. 

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

SESSIONS: This is his quote: "A systemic slanting, conscious or unconscious, of this and many other news reports have helped fuel a disingenuous campaign by liberal groups and senators to caricature Alito as a conservative ideologue. In fact, this is a judge who, while surely too conservative for the taste of liberal ideologues, is widely admired by liberals, moderates and conservatives who know him well as a fair-minded, committed to apolitical judging and wedded to no ideological agenda other than restraint in the exercise of judicial power," close quote. 

SESSIONS: And I would offer that for the record. 

Also, with regard to your challenges on Vanguard, on matters that have impacted your integrity, I would like to quote from the American Bar Association's interview questionnaires that they did on you among those who know you well. 

This is what they put in their conclusion. "Conclusion: We accept his explanation and do not believe these matters reflect adversely on him." Talking about those conflicts allegations. 

They go on to say: "To the contrary, consistent and virtually unanimous comments from those interviewed include, 'He has utmost integrity,' 'He's a straight shooter,' 'Very honest and calls them as he sees them.'" These are quote from different lawyers and judges. 

"His reputation is impeccable." "You could find no one with better integrity." "His integrity and character are of the highest caliber." "He is completely forthright and honest." "His integrity is absolutely unquestionable." "He is a man of great integrity." 

And then they conclude: "On the basis of our interviews with Judge Alito and with well over 300 judges and lawyers and members of the legal community nationwide, all of whom know Judge Alito professionally, the Standing Committee concluded that Judge Alito is an individual of excellent integrity." 

So congratulations on that finding. 

Judge Alito, many important decisions of the Supreme Court in recent years touch on the deepest values of the American people. They deal with things like Kelo and the property that they own, matters of faith and morality, decency and pornography. 

SESSIONS: Do you have a sense of where the American people are with regard to these issues? Can you indicate to us that you have any appreciation for legitimacy of some of those concerns? 

ALITO: Well, I do, Senator. 

SESSIONS: Regardless of the technical laws it involves, but just that fundamental policy. 

ALITO: I think I have an appreciation of people's concerns -- certainly with respect to Kelo, which is a recent decision and I can't comment on how I would rule on any matter concerning that; and it involves the power to take property for public use through eminent domain. 

I certainly understand that what occurred in that case which, as I understand it, was the taking of the homes of people of modest means for the purpose of building a large commercial facility that was thought by the city to be beneficial to the economic welfare of the city, that this is an enormous blow to the people whose homes are being taken. 

People live in homes and they have a sentimental attachment to them. They have memories that are attached to the homes. They can remember what happened in particular rooms. The neighborhood means something to them. The neighbors mean something to them. The things in the home mean something to them. 

And taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people. 

So I certainly can appreciate what they feel in that respect. 

SESSIONS: Well, let's talk about that a little bit, because this is a matter of real power and it's a matter that the Congress gets drawn into sometimes whether we want to be drawn into it or not. 

We've discussed Roe v. Wade. People remain concerned about that. The polling numbers continue to drift against that decision. 

We talk about the district court opinion. I believe Senator Brownback raised federal court on marriage, on redefining the traditional statutory definition of marriage contained in states and in state constitutions around the country. 

In Kelo, it's pretty clear to me that the court just changed the meaning of the words. 

SESSIONS: The Constitution said you could take property for public use. The court felt that was too restrictive, basically, and a majority just changed it to say you could take property for a public purpose, which includes some private redevelopment of the area in their minds. 

See, that's not founded in the Constitution. That's an overreach, in my opinion. 

On the Pledge of Allegiance case, the Neubauer (ph) case, the 9th Circuit, which includes 40 percent of the people in the United States, ruled that the Pledge of Allegiance was unconstitutional. 

The Supreme Court sort of sidestepped the fundamental issue and said that there was not standing on behalf of Mr. Neubauer (ph) and sent that back to a lower court. He now got him some plaintiffs that apparently have standing. He's taken it to the District Court in California, and he's won that case. 

They've concluded, and the 9th Circuit law remains in effect, so that 40 percent of the population of the United States really are not able, if you follow that opinion, to render the Pledge of Allegiance. 

Yet, we have chaplains and "In God we trust" in the Senate chamber and those kind of issues. 

So I don't believe that that is founded in the Constitution. I think the American people do not. And they are asking some real questions of us. 

So I guess I won't try to get you drawn into those. 

But I want to do this. The doctrine of judicial review, Marbury v. Madison -- you already indicated Hamilton didn't favor that. But the court found that it's not expressly stated in the Constitution, is it? 

ALITO: No, it's not. 

SESSIONS: And it definitely shifts the balance of power between the branches, because the court now has the power to, by a stroke of its pen, five of its nine members to strike down any law they say violates the Constitution. 

That's true, is it not? 

ALITO: They decide constitutional questions, and the doctrine has been established since Marbury v. Madison. That's right. 

SESSIONS: But they're in explicit powers given to the Congress. And Senator Coburn raised some of those, Article III, Section 2 has these words: "In all of the other cases before mentioned" -- this is a constitutional grant of power to the courts -- "the Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as the Congress shall make." Now those words are in the Constitution, are they not? 

ALITO: Yes, they are. 

SESSIONS: And as you said, if the words are expected to have some meaning, you would give them some meaning, at least, would you not? 

ALITO: I think that's undisputed, that they have a meaning. 

SESSIONS: And so Congress has some power here. We've not exercised that power and certainly in recent years. In Ex Parte McCardle, the Supreme Court in 1869 agreed that though the judicial powers conferred by the Constitution is conferred under such exceptions as Congress shall make. 

Then there is the impeachment power. The good senator mentioned that. And then the establishment of lower courts -- Article III, Section 1 says the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time establish. That indicates that Congress can establish or disestablish courts, does it not? 

ALITO: I think it's undisputed that the so-called inferior courts -- and I don't particularly like the term as a judge of court of appeals -- but the so-called inferior courts are totally the creation of Congress. 

SESSIONS: I'll just ask you to comment on this thought. Chief Justice Roberts in his hearings, and I asked him some questions similar to this, indicated that he was concerned about activism by the court, overreaching by the court, and he felt that this overreaching created a danger that it could undermine respect for law in our country. 

SESSIONS: Do you share that view? 

ALITO: I agree that overreaching by the courts can undermine respect for law. Our authority is based on the belief that what we are doing is different from what Congress is doing, because otherwise why would people tolerate our functioning? Nobody elects us. And we have a system of government that is fundamentally democratic. It's based on the sovereignty of the people. So how do you explain an unelected branch of government making decisions? 

So all of our authority is based on the idea which was expressed in Marbury v. Madison that the Constitution is law. It's not conceptually different from statutory law. And our job is to interpret the Constitution, it has a meaning, and you apply it to the situations that come up. 

SESSIONS: Well, right now there is a strong feeling, that I share, that the court on some very important issues that people care deeply about is exceeding its authority. They're calling on me and those of us in Congress to do something about it. I got a lot of letters saying, "Withdraw jurisdiction? Why aren't you supporting legislation to do that?" 

And Congress, I think, has shown restraint. But I hope that when you become a member of this august body, the Supreme Court, and I believe you will, that you will take those concerns with you and share with the members of the court that their views on policy issues are of no greater value than mine, frankly, at least in my opinion they're not, and that the Congress has been showing some restraint here. But we really want the court to be more modest and to draw back from some of its intervention and policy issues that are causing much angst around the country. 

You want to comment on that? 

Otherwise, Mr. Chairman, I would yield my time. 

ALITO: Well, Senator, I think your policy views are much more legitimate than the policy views of the judiciary because members of Congress are elected for the purpose of formulating and implementing public policy and members of the judiciary are appointed for the purpose of interpreting and applying the law. 

SESSIONS: Thank you very much. 

SPECTER: Thank you, Senator Sessions. 

We will now stand in recess until 4:20. 

(RECESS) 

SPECTER: The hearing will resume. 

And we now turn to Senator Feingold for 20 minutes. 

FEINGOLD: Thank you, Mr. Chairman. 

Good afternoon, Judge. 

I hope, if nothing else, you associate me with breaks in the proceedings, because it seems to happen every time my questions are up. 

Judge, yesterday I asked you about your preparation for these hearings over the past few months with a variety of practice sessions. You confirmed that you had had these sessions and that a great variety of subjects came up in them, and that's fine. I know this is not an easy process, and I would certainly expect you to prepare in this way. 

What I want to ask now, though, is simply if you can provide a list of all the people who participated in any of those practice sessions? And I would request that the folks here sitting behind you and back at the Department of Justice help you put that list together this evening and get it to us tomorrow morning so that we have time to ask about it during tomorrow's session, if necessary. 

Can you do that for me judge? 

ALITO: I certainly have no objection to that. 

FEINGOLD: Thank you very much. 

Now, I want to get into a subject that really requires some attention here and hasn't had much attention, given the important role it plays in the job of Supreme Court justice, and that is the issue of capital punishment or the death penalty. 

Judge Alito, the idea that defendants are entitled to effective legal representation is a fundamental part of our criminal justice system. In fact, of course, it's enshrined in the Sixth Amendment's guarantee that the accused have, quote, "the assistance of counsel for his defense," unquote. 

Nowhere is this guarantee obviously more important than in cases where the defendant's life is on the line. In a death penalty case you decided in 2004 called Rompilla v. Horn, you rejected the defendant's argument that his attorneys had failed to do an adequate investigation to prepared for his sentencing hearing. As a result, key mitigating evidence about his horrible childhood was never presented to the sentencing jury which ultimately sentenced him to death. 

FEINGOLD: As you know, the Supreme Court reversed your decision, ruling that the defense attorney's failure to even review evidence they knew the prosecution was going to introduce at sentencing violated the Sixth Amendment. 

This case was one of several Supreme Court cases in recent years to express particular concern -- particular concern about the adequacy of indigent representation and the fairness of the capital sentencing process. 

In fact, in several recent decisions, including Rompilla, the court has overturned death sentences because defense attorneys did not do adequate investigations to turn up potential mitigating evidence and because jury instructions did not clearly allow jurors to consider any and all possible mitigating evidence. 

And Justice O'Connor, who you have been nominated to replace, has of course often been the author or the deciding vote in these cases. 

Judge, what are your views on these issues? Is the court's recent emphasis on the importance of fully developing and considering mitigating evidence in capital sentencing proceedings headed in the right direction? 

ALITO: It is vitally important that all criminal defendants receive effective representation, and I could not agree with you more strongly that this is of the utmost importance in death penalty cases where so much is at stake. 

In the Rompilla case that you mentioned, we had to apply the standard of review that is set out in the habeas corpus statute as revised by Congress. And where there has been a determination on the merits by the state courts on an issue like whether a defendant receives effective representation within the meaning of the Sixth Amendment and where the state courts have applied the correct legal standard, we are not allowed to disturb their decision unless what they did was unreasonable. 

FEINGOLD: Well, let me ask you, then, because you're obviously pointing out the fact that you approached the Rompilla case as an appellate court judge bound by prior Supreme Court precedent, and yet you found that no constitutional violation had occurred. 

And I believe when we discussed this case in my office, you indicated you still think your decision was correct. 

So the question now is would your approach have been any different as a Supreme Court justice? What about your decision on the outcome of the case? 

ALITO: Well, my decision -- and I spoke directly to the issue in the Rompilla case as I saw it when it came before me, and my evaluation of the performance of the attorneys in that case was fully set out in the opinion that I wrote. 

ALITO: One of them was a very experienced criminal defense attorney. He was the head of a public defender's office. And there was no dispute whatsoever that this was an attorney of competence and experience and great dedication to the defendant in this case. 

And that attorney was assisted by another attorney in the office and, together, they were extremely dedicated to this case. 

Now, a number of judges took a look at this. All of the Pennsylvania judiciary, with the possible exception of one justice -- I can't remember clearly whether there was one justice who disagreed -- thought that there had been effective representation provided in this case. 

FEINGOLD: But this really isn't about the difference between being on the Court of Appeals and the Supreme Court. You apparently would have, based on what you know here, would have ruled the same way had you been on the Supreme Court. 

ALITO: Well, my evaluation of the facts of the case would be the same. Now, if... 

FEINGOLD: In other words, if there was not a violation of Sixth Amendment? 

ALITO: But I should add, however, that if a case came up in the future, the Supreme Court's decision in that case is a precedent that I would have to deal with. And they... 

FEINGOLD: Fair enough. 

ALITO: ... expressed the view as to how the standard applies to the facts of the case. It was a 5-4 decision. But it would be a precedent that I would follow. 

FEINGOLD: Well then let's go back to my original question, which is: Do you think the Supreme Court has been heading in the right direction in these cases? 

ALITO: I think that the Supreme Court is correct in viewing this as a very important part of the criminal justice system and in particular a very important part of the representation of clients in Eighth Amendment cases. 

FEINGOLD: Isn't the court doing more than that? The court is moving in a direction of giving greater recognition and ruling on the inadequacy of counsel in these cases? 

ALITO: And I think it's entirely appropriate that there be a searching review in every case as to whether a defendant in any criminal case but in particular, of course, in a capital case, has received the representation that the defendant is entitled to under the Sixth Amendment. 

FEINGOLD: Do you think your replacing Justice O'Connor will change the direction of the court in this regard? 

ALITO: I would approach these cases under the law that the Supreme Court has established in this area with the recognition that I've attempted to explain of how important I believe this right is in all cases and in death cases in particular. 
When the Supreme Court reviews a case that's come up through the federal system in a habeas proceeding, then the Supreme Court, just like my court, should apply the standards that are set out in the habeas corpus statute.

FEINGOLD: Let's go to a different one. Wiggins v. Smith is a Supreme Court case decided in 2003 also addressing inadequate mitigation investigation. In that case Justice O'Connor, writing for the majority, found trial counsel ineffective for failing to conduct an adequate investigating into possible mitigating evidence that could be presented at sentencing. 

Had the attorney done adequate investigation, he would have found abundant evidence of childhood physical and sexual abuse, as well as diminished mental capacity. 

Do you think that case was rightly decided? 

ALITO: I discussed Wiggins in Rompilla, and I thought that it was distinguishable. Wiggins, as I recall it, was a case where the attorney simply didn't conduct an investigation, without any sound strategic reason for not investigating a particular matter. 

FEINGOLD: So you have no sense that that was wrongly decided? 

ALITO: I have no sense that that was wrong. I thought it was different from the Rompilla case. 

FEINGOLD: According to two independent studies, your record in death penalty case has been more anti-capital defendant even than most Republican-appointed judges. In fact, in every disputed capital case that you heard -- that is, cases in which a panel of three judges did not all agree -- you would have ruled against the defendant. 

How do you explain this seeming tendency to favor the government in capital cases? 

ALITO: I've only sat on a handful of capital cases, and in some of them I voted to uphold the death penalty and in a number of them I voted to strike down the death penalty. In Carpenter v. Vaughn, I voted to strike down the death penalty. 

In the most recent death penalty case I sat on, the Braunstein case, I voted to strike down the death penalty because of the procedure that was followed at the penalty phase in that case. 

In the Cruzan case, I was part of a panel that vacated a decision of the district court rejecting the claim of a habeas petitioner. There have been other cases where I voted to uphold the death penalty. 

FEINGOLD: Justice Stevens recently gave a speech at the American Bar Association in which he raised a number of serious concerns about the administration of the death penalty. 

FEINGOLD: He pointed to aspects of capital proceedings that he believes unfairly tilt the balance in favor of the prosecution, both at the trial and sentencing stages. 

Specifically, he raised concerns about the jury selection process, arguing that jurors are questioned so extensively about the death penalty that they might assume their role is primarily to decide the sentence for a presumptively guilty defendant. 

He also argued that representation of indigent defendants remains an issue that has not been adequately addressed. And he noted that elected state judges may have a, quote, "subtle bias," unquote, in favor of death because they have to face re-election. 

Now, I know all of us on this committee have the greatest respect for state court judges, but we all can understand the pressures of a re-election campaign. 

So, what are your views on the potential of these three issues -- the jury selection, the inadequate representation and an elected judiciary -- to skew a capital prosecution against the defendant? 

And do you share these concerns that Justice Stevens outlined? 

ALITO: I certainly share a concern that there should be a fair procedure for the selection of jurors. That certainly is a concern. 

The issue of the election of judges at the state level or the appointment of judges at the state level is a matter for state legislatures to decide. 

And, within my circuit, we have three states. In New Jersey and in Delaware, the state judiciary is appointed. In Pennsylvania, the state judiciary is elected. 

And I've had the opportunity to view the work of all three of the supreme courts in those states and I think they all are of a very high quality. 

I think the elected judges in Pennsylvania do a conscientious effort to carry out their responsibilities. And I have a high regard for the judiciary in all of those states. 

So, based on my experience, I think you can have highly competent and, certainly, conscientious state judges who are appointed and the same sort of judges who are elected. 

And, of course, we do have habeas corpus. And it is important to make sure that constitutional rights are respected. 

ALITO: And the scope of the review that we conduct under habeas is up to Congress. 

Congress reformulated the standards in AEDPA, in the Antiterrorism and Effective Death Penalty Act of 1996, limiting our review, and it is our obligation to conduct the kind of review that Congress has indicated we should be conducting. 

FEINGOLD: Judge, it sounds like you perhaps have a lesser level of concern about some of these matters than Justice Stevens. The only thing I would note is one of the most striking things about the history of justices that have gone to the court sometimes who are pro death penalty, an amazing number have come to the conclusion that this is the one area where once they get there, they realize that these problems are much more severe than they might have thought before they became Supreme Court justices. 

Should you be confirmed, I look forward to how you react to these issues after you have become a Supreme Court justice, should you do so. 

In the past few years, the Supreme Court has limited the application of the death penalty based on the Eighth Amendment's ban on cruel and unusual punishment. In Atkins v. Virginia, the court ruled that mentally retarded inmates cannot be executed. And in Roper v. Simmons, it held that individuals who were minors when they committed capital crimes cannot be executed as punishment for their actions. 

Do you agree with these decisions? 

ALITO: Those decisions applied the standard that the Supreme Court formulated sometime earlier in determining whether the imposition of the death penalty on particular categories of defendants would violate the Eighth Amendment and they looked to evolving standards of decency. And that is a line of precedent in the Supreme Court, and those are precedents of the Supreme Court, and they're entitled to the respect of stare decisis. 

FEINGOLD: Can you just tell me what your general approach to the Eighth Amendment would be in the context of the death penalty? 

ALITO: My approach would be to work within the body of precedent that we have. As I mentioned earlier, the Supreme Court has devoted a lot of attention to this issue since 1976 when it held that the death penalty is permissible provided that adequate procedures are implemented by the states so that the decision about who receives the death penalty and who does not is not arbitrary and capricious, so that there is a rationality to the selection process. And the rules in this area are quite complex. But I would work within the body of precedent that is available. 

FEINGOLD: Let me go to a topic we've talked about before. We had a good discussion of the recusal issue in the Vanguard case yesterday, and I hadn't intended to ask more about it, but your discussions with Senator Kennedy and Senator Hatch today make further questioning a little bit necessary. 

Senator Hatch noted that the committee's questionnaire asked about financial conflicts of interest during the period of your initial service as a judge. Now, the reason for wording the question like that, of course, is that nominees have no way of knowing when they are up for confirmation whether they will have the same investments five, 10, 25 years later. 

The committee obviously can't ask for a comprehensive list of possible future financial conflicts. So, for example, if you have stock in Microsoft and you list that as a financial conflict on your questionnaire, you still have to recuse yourself from a Microsoft case 15 years later if you still have the stock. Isn't that right? 

ALITO: If you're required to recuse yourself, if you have stock in Microsoft, even one share... 

FEINGOLD: You still have to recuse yourself even if it's 15 years later, right? 

ALITO: Certainly that's true. 

FEINGOLD: So the Senate questionnaire about financial investments is not time limited based on the question being about initial service on the court, is it? 

ALITO: Well, I want to be clear on my answer respecting this as it bears on the Monga case, the Vanguard case, because that's what we're discussing. 

The wording of the Senate questionnaire was not the reason for the way I handled the case. 

FEINGOLD: No, I accept that. 

I just want to know if there's any -- you have any question in your mind why the question is phrased that way in the questionnaire? 

ALITO: Reading the question, it does seem to me that an initial period of service is a temporal limitation. 

FEINGOLD: I want to be sure we don't leave the impression from these hearings that people don't have an obligation to recuse themselves from a financial conflict just because of the passage of time. You've already indicated if that financial conflict continues, that's an indefinite and permanent restriction until that financial holding is gone. Isn't that correct? 

ALITO: Absolutely. 

And that's under the Code of Judicial Conduct, Canon 3C(3) I think it is. If you have a financial interest, you must recuse yourself, and that's of course a continuing obligation. 

FEINGOLD: It's not temporal? 

ALITO: The obligation to comply with the code of conduct for federal judges applies to every federal judge for as long as they serve. 

FEINGOLD: OK. And that's why I have to say that I'm a bit frustrated that people are trying to obscure what I think was pretty clear testimony by you yesterday by bringing up this period of initial service issue. 

In response to Senator Kennedy, you made it clear again that your failure to recuse in the Vanguard case had nothing to do with the suggestion that your promise was time limited. 

But I want to get this on the record again. And hopefully, this will lay any confusion to rest. 

This idea that your promise to the committee was somehow limited to your initial service on the court, that was not the reason you failed to recuse yourself from the case in 2002, was it? 

ALITO: It was not the reason in 2002. 

I do think reading the question, it has a temporal limitation. If that wasn't the intent, I think people could read it -- certainly, when you say initial period of service, people will read that to mean... 

(CROSSTALK) 

FEINGOLD: This has nothing to do with why you didn't recuse yourself? 

ALITO: It did not have to do with what I did in the Monga case. 

FEINGOLD: And it's not as if you noticed that Vanguard was a party, remembered your promise to the committee, and then made a specific decision not to recuse because the promise had expired? 

ALITO: No. It was not that at all. 

FEINGOLD: And you finally added Vanguard to your standing recusal list in December 2003 and it's on your list today -- isn't that right? 

ALITO: It is on my list today. 

FEINGOLD: Do you plan to recuse yourself from Vanguard cases that come before the Supreme Court as long as you keep your Vanguard mutual funds? 

ALITO: Well, if I'm confirmed, I will very strictly comply with the ethical obligations that apply to Supreme Court justices. Supreme Court recusals are a bit different from recusals in the court of appeals. And so the obligation to sit when you're not recused is one that has to be considered very seriously by somebody on the Supreme Court or, I would think, on a state supreme court, for example. 

FEINGOLD: Is there any question, if still have holdings in Vanguard and a case comes before the Supreme Court, that you should recuse yourself? 

ALITO: Well, under the Code of Judicial Conduct, I don't believe that I am required to recuse myself in Vanguard cases. And I would strictly comply with the ethical obligations that apply to a Supreme Court justice. 

FEINGOLD: But you're not going to make a promise here that you're not going to rule on Vanguard cases while you have holdings in Vanguard when you're on the Supreme Court? 

ALITO: Well, what I want to say about recusals on the Supreme Court is that the decision-making process on the Supreme Court or any court with a fixed membership, a fixed number of jurists who sit on each case, recusal in that situation affects the decision-making process, because instead of having nine justices, you have eight; you have the potential for a tie. 

On the court of appeals, that is a much less significant consideration because we always sit in panels of three, we have many judges on our court and many cases. So if I don't sit on a case involving Vanguard, it just means somebody else will sit on the case involving Vanguard. It will still be decided by a three-judge panel. 

FEINGOLD: I would add on that point that that may be true, but it's also true that the Supreme Court is the last stop, and if somebody doesn't recuse himself, there's really no remedy. And that is why it's so important that somebody would recuse themself. 

ALITO: It is very important for somebody on the Supreme Court to fulfill, strictly, the obligation not to sit when the person should not sit. But it's also important for -- given the matters that I just discussed -- for a justice to sit if the justice is not required to recuse. 

FEINGOLD: Judge, my time is up. 

Mr. Chairman, we don't yet have the communication from Judge Alito to the clerk on December 10, 2003, that caused Vanguard to be added to his standing recusal list. 

And whether that was an e-mail or a form that Judge Alito filled out or something else, we've requested it. So, I'm just asking for the assistance of the chairman in getting that document so we can complete the record. 

SPECTER: Senator Feingold, we'll take a look at it and see what the facts are. 
FEINGOLD: Thank you.

Return to Part I. Part III of the transcript continues here.

Transcript
U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court 
Part III of III

CQ Transcriptions
Wednesday, January 11, 2006; 5:34 PM

The transcript picks up with the testimony of Sen. Lindsey Graham. To return to Part II, click here.

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. 

SPECTER: Thank you, Senator Graham. 

Senator Schumer? 

SCHUMER: Thank you, Mr. Chairman. 

Thank you, Judge Alito. 

First I want to go over some of the things you said yesterday. Judge Alito, you testified yesterday that you'd keep an open mind. Isn't that right? 

ALITO: I did and I do. 

SCHUMER: Now are you aware of any nominee in the history of the republic who has come before the Senate and testified he'd keep a closed mind? 

ALITO: I'm not aware of that. But I can only speak for myself. 

SCHUMER: Of course. 

ALITO: I will keep an open mind on all issues. 

SCHUMER: You also testified yesterday that no one, not even the president, is above the law. Right? 

ALITO: That's certainly true. 

SCHUMER: Yes. 

And are you aware of any nominee in the history of this republic, of whatever political philosophy, judicial philosophy or denomination, who has come before the Senate -- party denomination -- and testified that, actually, there are a few people who are above the law? 

ALITO: I'm not aware of a nominee like that, Senator. 

SCHUMER: Me either. 

And you also testified that the court should have respect for the Congress. Isn't that right? 

ALITO: Yes. 

SCHUMER: Know of any nominees who came before the Senate and said, "The heck with you guys; I don't have any respect for the Congress"? 

ALITO: Senator, I can only speak for myself and those are true expressions of what I think. 

SCHUMER: I know that. But all I want to say is -- and I don't doubt your sincerity in saying them -- but this morning's newspapers were filled with headlines to the effect you would keep an open mind. 

I don't find that really to be news, nor do I find it very helpful in figuring out what kind of justice you would be. 

My friends on the other side of the aisle have repeatedly said you've answered over 200 questions. Now it's probably 300. But a response is not an answer. And you've responded to more than 300 questions but, in all due respect, you haven't answered enough of them. 

And so, again, I think we ought to make clear that, at least to many of us here, we haven't gotten the answers to questions, yes or no, on some important issues. 

SCHUMER: And with that, I'd like to return to Roe, a question, something we discussed yesterday at some length. 

You did say yesterday that you'd keep an open mind. You said first you'd look at stare decisis and then you'd keep an open mind after going through stare decisis. 

But when I asked you questions about your prior statements to see if you would keep an open mind, so I could make a determination, so the American people could make a determination, you really didn't answer the question. 

Now, we've heard pledges about having an open mind before. I want to read you one. It's another hearing; someone who sat in your chair. 

"I have no agenda, Senator. I have tried here, as well as in my other endeavors as a judge, to remain impartial, remain open-minded, and I am open minded on this particular issue." 

I'll bet you can guess who that nominee was. It's Clarence Thomas on the issue of the Constitution and the right to choose, very issue I've asked you about, when he sat in that chair 15 years ago. 

So someone pledging an open mind doesn't tell us very much because I think there are a lot of people on this committee who were surprised -- I wasn't there -- were surprised by how Judge Thomas ruled based on his testimony. Didn't tell them enough. 

Now, yesterday, as you know, I asked you whether you believe today that the Constitution protects the right to an abortion, given that in 1985 you flatly said that it doesn't and you didn't answer that question. 

Then I asked you whether the Constitution protects the right to free speech and you said yes. 

Then I asked how could you answer one and not the other. And your answer as to why you could discuss one and not the other was essentially that the words "free speech" appear in the Constitution but that -- and this is your words -- the issue of abortion has to do with the interpretation of certain provisions in the Constitution, the 14th Amendment.