Samuel Alito in Alito Confirmation Hearings

On Abortion: Stare decisis is first step; then an open mind on abortion

ALITO: 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. 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.

On Abortion: Was against Roe in 1985, but a lot has happened since then

ALITO: 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.

On Abortion: Roe v Wade is important precedent but not settled law

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. The Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes--in Casey--based on stare decisis.

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, then it is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: 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.

On Civil Rights: Overturning separate-but-equal OK despite 60-year precedent

ALITO: Plessy was certainly wrong.

BROWNBACK: Brown v. Board of Education overturned Plessy, after Plessy had stood on the books since 1896. 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. Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

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

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

ALITO: The court got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled. Separate facilities, even if they were identical, could never give people equal treatment under the law.

On Civil Rights: Treat religious speech equally with secular speech

ALITO: Including both religious and secular symbols was not a violation.

BROWNBACK: What I hear in your opinions 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: That was exactly what Jersey City had decided in that case.

BROWNBACK: 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. [What about] C.H. v. Olivia?

ALITO: This case involved a student who wanted to read the story of Jacob and Esau to the class. And the teacher said no. And we found that was a violation of treating religious speech equally with secular speech.

On Civil Rights: Racial profiling violates the 4th Amendment

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: Just to mention a few of these cases that show that you're going to do what's right, regardless.

On Civil Rights: I joined CAP to defend ROTC, not to keep out minorities

ALITO: I disagree with that. I would never endorse it.

KENNEDY: A letter from CAP mailed in 1984-this is the year before you put CAP on your application-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, it cited that admission rates for African-Americans and Hispanics were on the rise. This letter was the subject of a Jan. 1985 Wall Street Journal editorial. This would be right about the time that you joined the organization.

ALITO: I do not recall knowing any of these things about the organization. What I do recall as an issue that bothered me was the idea of that it was beneath Princeton to have an ROTC unit on campus.

On Corporations: Bundling goods to large purchasers is not monopolistic

ALITO: This was a monopolization case. 3M was not selling the product below its cost. 3M, because of its scale or because it was more efficient, was able to produce its product more cheaply. That factor persuaded us that there wasn't sufficient evidence of monopolization here.

On Crime: Overruled by Supreme Court on death penalty adequate counsel

ALITO: We had to apply the standard of review that is set out in the habeas corpus statute as revised by Congress.

FEINGOLD: Would your approach have been any different as a Supreme Court justice?

ALITO: One of the attorneys was the head of a public defender's office. My evaluation of the facts of the case would be the same. But the Supreme Court's decision in that case is a precedent that I would have to deal with.

On Crime: Congress limits judicial review of death penalty 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.

FEINGOLD: 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?

ALITO: I think the elected judges in Pennsylvania do a conscientious effort to carry out their responsibilities. 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.

On Environment: Citizens can only sue under CWA if they suffered injury

ALITO: You have to have a plaintiff who has suffered injury in fact. And the plaintiffs in that case had not even alleged personal injury. They alleged that they enjoyed the Delaware River in a variety of ways. 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.

On Environment: Ruling on standing is not ruling against the environment

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. 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 authored six environmental opinions; and you sided with the environmental regulatory body in five of those six opinions. Indeed, Professor Cass Sunstein said this about you, "This is a judge who, if the text is pro-environment, he's very likely to follow it."

On Government Reform: Over-reaching by Court undermines respect for law

ALITO: I agree that overreaching by the courts can undermine respect for law. Nobody elects us. Our job is to interpret the Constitution, it has a meaning, and you apply it to the situations that come up.

SESSIONS: I feel that the court on some very important issues is exceeding its authority. People are calling on me and those of us in Congress to do something about it.

ALITO: 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.

On Government Reform: No one is above the law and no one is 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 citiz

On Government Reform: Supports one-person-one-vote within a deviation of 10%

ALITO: I never disagreed with that principle, Senator. My father's work with the N.J. legislature [attempted to] bring it into compliance with the one person, one vote standard. These provisions, however, because they tried to respect county and municipal lines, resulted in population deviations of under 10 percent, but those deviations were much higher than the ones that the Supreme Court said would be tolerated. 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.

On Health Care: Ok to refuse medical treatment; but assisted suicide not ok

ALITO: This is obviously one of the most sensitive issues that comes up in our legal system. And with the advances in medical technology, this is going to be a very tough issue for an awful lot of people. In the Cruzan case, the court assumed that there is a constitutional 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, that's a battery under the common law and you can be sued. 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 they recognized that these were issues that were on the cutting edge of medical technology, on which more empirical evidence might become relevant in the future.

On Homeland Security: President can be challenged for not following Congress' laws

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. 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--unconstitutional, and that he's not going to follow it?

ALITO: It is emphatically the duty of the courts to say what is constitutional.

On Immigration: Voted against immigrants because Congress set law that way

ALITO: In the area of immigration, Congress has spoken clearly. As to factual decisions that are made by an immigration judge, Congress has told us, "You are not to disturb those unless no reasonable fact finder could have reached the conclusion that the immigration judge did." 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.

On Principles & Values: Pledge of recusal does not last for 12 years

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.

SEN. KENNEDY: When you made a pledge to the committee that you were going to recuse yourself, 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 five years?

ALITO: Senator, I did not rely on that time limitation. I would say that 12 years later is not the initial period of service.

On Social Security: Disability benefits apply if job category dissapears

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.

HATCH: 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. I said you can't deny Social Security benefits because the person is able to do a job that no longer exists. 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.

On Technology: Voted to televise 3rd Circuit court

ALITO: I had the opportunity to deal with this issue, actually, in relation to my own court. All the courts of appeals were given the authority to allow their oral arguments to be televised if they wanted. I argued that we should do it. I thought that it would be a useful. The issue is a little bit different on the Supreme Court. 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.

On War & Peace: President does not have a blank check in time of war

ALITO: Justice O'Connor wrote the opinion of the court. She concluded that the authorization for the use of military force constituted an authorization for detention. 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. 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.

On Welfare & Poverty: Eminent domain affects emotions, not just money

ALITO: I have an appreciation of people's concerns?certainly with respect to Kelo, which involves the power to take property for public use through eminent domain. What occurred in that case 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. The neighborhood means 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.

SESSIONS: That's an overreach, in my opinion.

On Civil Rights: Privacy is a question of interpretation of the Constitution

On Civil Rights: The Constitution protects a right to privacy

On Civil Rights: The President has to comply with statutes that are passed

On Foreign Policy: Don't look to foreign law for civil rights interpretation

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents. Our country has been the leader in protecting individual rights. We have our own law. We have our own traditions.

There are other legal issues that come up in which I think it's legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that's been entered into by many countries, I don't see anything wrong with seeing the way the treaty has been interpreted in other countries.

On Government Reform: Supports stare decisis--following prior precedents

On Government Reform: Executive power issues are not often resolved by the court

On Government Reform: Constitution is a living thing, with unchanging principles

The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.

On Homeland Security: Government needs to justify domestic spying

On Principles & Values: Constitution doesn't change but the factual situations do

On Principles & Values: All the courts should be insulated from public opinion

On Principles & Values: 1960s Princeton: "privileged people behaving irresponsibly"

On Principles & Values: Good judges can change their minds during a case

On Principles & Values: Attorneys want results; judges want only the rule of law

On Principles & Values: Pledges to administer justice without respect to persons