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

CQ Transcriptions
Thursday, January 12, 2006; 12:49 PM

JANUARY 12, 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: These hearings will resume on the confirmation proceedings for Judge Samuel Alito to the Supreme Court of the United States.

Good morning, Judge. I saw your family in the hallway as we were coming down. Everybody appears to be bright and rested and ready.

ALITO: Thank you, Senator.

SPECTER: The committee staff, accompanied by representatives of Senator Kennedy, went through the Rusher files yesterday, finishing up their work, I'm advised, at about 2 a.m. this morning, and provided me with a memorandum that the committee staff reviewed more than four boxes of documents from the personal files of William Rusher concerning CAP.

Judge Alito's name never appeared in any document. His name was not mentioned in any of the letters to or from the founder, William Rusher. His name was not mentioned in any of the letters to or from CAP's long-term executive director, T. Harding Jones. His name does not appear anywhere in the dozens of letters to CAP or from CAP.

The files contain canceled checks for subscriptions to CAP's magazine, Prospect, but none from Judge Alito.

The files contain dozens of articles, including investigative exposes written at the height of the organization's prominence, but Samuel Alito's name is nowhere to be found in any of them.

The Rusher files contain lists of the board of directors, the advisory board and the contributors to both CAP and Prospect magazine. But none of the lists contains Samuel Alito's name.

The files contain minutes and attendance records from CAP meetings in 1983 and 1984, just before Samuel Alito listed the organization on his job application, but Samuel Alito did not attend any of those meetings, at least according to those records. He's not even mentioned in the minutes.

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

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

Before turning to Senator Leahy for his allotted time, I yield to him if he has any opening comments he chooses to make.

LEAHY: I just think, Mr. Chairman, as we know this will be the last opportunity for the American people to learn what Judge Samuel Alito thinks about the fundamental constitutional rights, whether he's going to serve to protect their liberty, their privacy from government intrusion.

I think it's even more critical today because of the efforts to expand...

SPECTER: Excuse me, Senator. Do you want to start on your 25 minutes?

LEAHY: Oh, no. I thought you were asking me...

SPECTER: No, I do. Yes, opening comments, sure. We're not going to start your time clock until you tell us.

LEAHY: This is just a short opening comment.

SPECTER: Fine.

LEAHY: I just think it's critical. And I know the judge probably feel like he's here doing nothing but being on a hot seat, but he is talking about a lifetime appointment.

And it is the most powerful court in the land. It is at a time when we see this effort to expand presidential powers, such as illegal wiretaps of Americans, the president using a signing statement to create exemptions to laws prohibiting torture.

These are all important things. The Supreme Court's our ultimate guardian -- has to be our ultimate guardian.

LEAHY: And we need to know whether Samuel Alito is willing to be that kind of guardian.

I'm still troubled by some of the questions.

And, Mr. Chairman, I know you're going to be asking questions and I'll wait to ask mine after that, of course.

SPECTER: I'm going to reserve my time at this juncture and turn to Senator Leahy for time, up to 25 minutes.

LEAHY: Thank you.

In his confirmation hearing last September we, as you know, went through hours and hours, days and days with Judge Roberts, now chief justice.

I asked him if the Constitution permits the execution of an innocent person. He said, "If they've been falsely convicted and they're innocent, they shouldn't be in prison, let alone executed." I think we all agree with that.

But I pushed further, because my question was whether the Constitution permits the execution of an innocent person -- you know that they're innocent. He said, "I would think not."

Judge, do you agree with Chief Justice Roberts?

ALITO: I agree that it is one of the most fundamental rights protected by our Constitution that no one may be convicted of an offense unless they're proven to be guilty beyond a reasonable doubt.

And further than that, the Supreme Court's decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously.

ALITO: And this whole framework is designed to prevent exactly that: to prevent the conviction of an innocent person and to prevent the imposition of capital punishment on someone who is innocent or on someone who is guilty of the offense but is not deserving to be -- to have that penalty imposed on the person.

LEAHY: But, Judge, we have, as we know -- we saw the cases in Illinois, people a few days away from execution. They'd been sentenced to death. They'd been convicted. They had their trial, gone to trial. Jury came back. Apparently procedures followed on sentencing. They are now sentenced to death.

A few days before death, somebody comes forward at the very last minute because of DNA evidence, and says "Whoops, we got the wrong person," and then they are let loose.

We're finding in Virginia now, in other cases, it appears that there's a possibility a number of innocent people were executed.

What if you had a case -- they've gone through the whole thing. They've been convicted. The judge has followed all of the appropriate sentencing, the jury came back for sentencing, did everything following the law. And now they're up for execution. Evidence comes up, say, DNA evidence, or DNA evidence, a confession of somebody else. Would it be unconstitutional then to execute that person?

ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...

LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.

ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring.

I have not had a case -- during my time on the court of appeals, I've had only a handful of capital punishment cases where there was a suggestion that that was a possibility.

If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court.

The first procedural step in either instance would be to file a petition with the trial court.

ALITO: If it were in state court, it would be a state collateral relief petition. And those are handled differently depending on the state. And then file a -- I'm sorry. You could go to the state court or you could attempt to file a second habeas petition in federal court and follow the procedures that are set out in the habeas corpus statute.

LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.

But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?

ALITO: The Constitution is designed to prevent that.

LEAHY: And the reason I ask this, this is something that originally raised, as I recall, in the Judiciary Committee by Chairman Specter, the Rule of Four. Are you familiar with that, where the Supreme Court?

In other words it takes five justices to stay an execution or to hear one of these cases. Usually, if there's been four that have agreed it should be, somebody will make the fifth just as a matter of courtesy.

It hasn't been followed that much recently. Chairman Specter has called it is bizarre, an unacceptable outcome, to not provide the fifth vote. He wanted to introduce legislation to codify the Rule of Four.

If you were one of the justices and you're there -- and these things always seem to happen. Everybody is scattered all over the place. Four of your fellow justices have said that they would hold, what would you do? They voted to stay an execution. They're asking you to be the fifth vote. Four have...

ALITO: I had not heard of this rule until the hearings for Chief Justice Roberts. But it seems to me to be a very sensible procedure because I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated.

LEAHY: Well, I raise it, as I did with then Judge Roberts, here because some things you remember from this hearing; some things you will probably try to forget -- both you and your family.

But I hope at least this idea stays in your mind.

About a decade ago in Washington v. Glucksberg, the Supreme Court declined to find a terminally ill patients had a generalized constitutional right to a physician's aid in dying, preferring the matter be left to the states.

The court noted: "Throughout the nation, Americans are engaged an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide."

Chief Justice Rehnquist wrote: "The court's holding permits the debate to continue, as it should in a democratic society."

I remember reading that. I thought it very practical, aside from the legal, a very practical response.

Last spring, we witnessed a fierce legal battle over the medical treatment of Terri Schiavo. She was in a persistent vegetative state for more than a decade.

LEAHY: And ultimately, after she died, the autopsy showed that.

But we found politicians rushing to the cameras, engaging in extraordinary measures to override what the state courts determined to be her own wishes, state courts that heard countless cases on this.

Suddenly, this became the thing -- politicians all over the place, rushing forward.

The power of the federal government was wielded by some to determine, in my view, what were deeply personal choices. The president even came back to Washington in the middle of one of his vacations to sign special legislation on this.

Do you agree with the idea advanced in the Cruzan case that the wishes of an unconscious patient, to the degree they can be known, should govern decisions regarding life-sustaining therapies?

Let's assume that the wishes are clearly known. Should they be followed?

ALITO: Well, the Cruzan case proceeded -- assume, for the sake of argument, which is something that judges often do, that there is a constitutional right to say -- that each of us has a constitutional right to say: I don't want medical treatment.

And the Cruzan decision recognized that this was a right that everybody had at common law. At common law, if someone is subjected to a medical procedure that the person doesn't want, that's a battery and it's a tort. And the person can sue for it. It is illegal. The court did not...

LEAHY: One of those cases where we got something from that foreign law -- in this case, English common law. Is that correct?

ALITO: Well, that's correct. And I think that our whole legal system is an outgrowth of English common law, and I don't...

LEAHY: Just thinking of somebody -- why that popped in my mind. I was thinking of some of the people talk about paying attention to foreign law and most of our law is based on foreign law.

But go ahead.

ALITO: Most of our law...

LEAHY: Common law, common law.

ALITO: ... is an outgrowth of English common law. And I think it helps to understand that background often in analyzing issues that come up.

LEAHY: But you agree with Cruzan? I mean, I'm thinking if somebody has a "do not resuscitate" order, do you agree with that?

ALITO: That's a fundamental principle of common law. And Cruzan assumed for the sake of argument that that would be a fundamental constitutional right.

But that is a right that people have had under our legal system for a long time, to make that decision for themselves.

LEAHY: My wife was -- or is a nurse. And she was working on a medical surgical floor and she had mentioned about people with these DNR, do not resuscitate.

Would you agree that a patient would have a right -- for example, if you have a living will, you have a right to designate somebody who can speak for you in a case of terrible injury or unconscious, speak for you on a "do not resuscitate" or "do not use heroic measures," all the rest? Do you agree with that?

ALITO: Yes, Senator.

That's, I think, an extension of the traditional right that I was talking about that existed under common law. And it's been developed by state legislatures, and in some instances by state courts, to deal with the living will situation and with advances in -- which I think is, in large measure, a response to advances in medical technology, which create new issues in this area.

LEAHY: We have three separate and coequal branches of government, as the Constitution says; have these checks and balances. Most of us feel that if the Congress is going to carry that out, they have to carry out real oversight and make sure the government's accountable to the American people. If you don't do that, corruption, incompetence sets in.

We've given a lot of powers to our government in the fight against terrorism and others. And the check and balance is to make sure there's oversight.

Do you believe in the general principle of the Congress having major oversight powers?

ALITO: I don't think there's any question about that.

LEAHY: Well, let me go -- and I was thinking of this as we were talking about the Schiavo case. And I don't want you to have to get involved in what many thought was, kind of, a sorry exercise when people are already suffering enough -- sorry exercise by the Congress. So I won't talk about the House committee's unbelievable subpoena to Terri Schiavo.

But let me ask you this: Could this committee, the Judiciary Committee, issue a subpoena for a defendant on death row in a state prison if we believed he was about to be executed and thought he was innocent?

ALITO: Could this committee issue a subpoena...

LEAHY: And enforce it?

ALITO: ... to have the defendant come and testify before the committee?

LEAHY: It's an hour before execution, for example, and make it even a tougher case.

ALITO: It's not a question that I ever thought of. Sitting here I can't think of an objection to it, but I would have to hear whatever arguments there were to be made.

LEAHY: You know, this may seem to be bouncing around here a little bit. I'm trying to pull together my own mind after looking at the transcript last night of some of the things you were saying. And you were in a discussion with a number of senators about views of the court, or how the courts -- how the American people view courts and how, basically, in a democracy, courts have to have the respect of people if they're going to be able to carry out their orders.

Brown is probably one of the key examples of that where the chief justice spent two and a half years until he got a unanimous court decision.

Justice O'Connor gave a speech decrying the present climate of antipathy between the judiciary and some members of Congress, and I've spoken with her and others and the late chief justice about this.

She expressed concern about efforts to limit federal court jurisdiction in areas that some members of Congress think the federal court should not be involved. We've seen a number of efforts to strip the federal courts of jurisdiction when some members of Congress felt they disagreed with it.

LEAHY: Now, I thought some of these issues were settled by Marbury and when Chief Justice Marshall said it is emphatically the province and duty of the judicial department to say what the law is.

Now the court-stripping bills are not without precedent. Recent efforts have failed. I recall one where three senators finally talked it down, until it ran out of time. I was one of the three. Senator Lowell Weicker of Connecticut was one of the other three.

On the way out, the third one put his arm around us and said, "I think we're the only true conservatives in this Senate." We both said, "Thank you, Barry Goldwater. We appreciate you joining us in this."

I took it as a great compliment.

Now, imagine that in the early 1950s, Congress enacted a law that purported to strip all federal courts, including the Supreme Court, of jurisdiction to hear cases and appeals involving segregation of public schools. Would such a law have been constitutional?

ALITO: There's a debate among scholars about the extent of the authority of Congress to structure the appellate jurisdiction of the Supreme Court. There are those who say that Congress has the authority to eliminate appellate jurisdiction by topic and they rely on the language of Article III.

ALITO: And there are those who say that to take away jurisdiction over a category of cases such as that would be a violation of another constitutional provision; in that instance, a violation, perhaps, of the equal protection clause.

And there's this debate. It's not something...

LEAHY: Have you taken part in that debate?

ALITO: Pardon me?

LEAHY: Have you taken a position in that debate?

ALITO: I have not taken part in that. And I've read...

LEAHY: Would you like to?

ALITO: Not at this time.

(LAUGHTER)

LEAHY: I don't know why that surprises me.

ALITO: And the case law is not definitive on this question, according to the scholars. Ex Parte McCardle is a case that can be interpreted in a number of different ways.

LEAHY: You know, we had many in the Congress at that time, had they thought that Brown v. Board of Education was about to come down the way it did, probably would have made efforts to strip the authority of the Supreme Court to hear it.

And I'm afraid that, as we find some of these efforts where the courts become a very convenient whipping boy to people looking for votes or whatever, that that might happen again. And I'd suggest that you think long and hard on it.

Let me ask you this. On more than one occasion, the House of Representatives has included a provision in an appropriations bill -- and we all agree that the Congress has the power of the purse -- but in an appropriations bill saying that none of the funds can be spent enforcing a particular court decision. Pick something that they feel is unpopular at the moment, so they say, "No money can be spent to enforce it."

LEAHY: And let us say the court has ruled, basically, on a constitutional issue, saying: "This shall be in force." The Congress says: "No, we won't allow money to be spent."

Does that violate the Constitution?

ALITO: Well, that's also a provocative constitutional question.

I can't recall an instance where that has been done with respect to a constitutional decision. Perhaps it has been.

I do recall, back during the 1980s, that it was done with respect to an issue of antitrust. And I would assume that if there wasn't -- well, obviously, if there isn't a constitutional question raised by that limitation on the expenditure of funds, and if you're talking about a nonconstitutional question, maybe there is no constitutional issue raised, there wouldn't be an obstacle to Congress's doing that.

With respect to a constitutional question, that's a provocative constitutional issue that -- I don't know the answer to it. And I cannot think of precedent on that point. I don't believe there is any.

LEAHY: Well, let's take a nonconstitutional. I want to make sure I understand your answer.

The Congress decision has come down of whatever nature. You mention antitrust -- whatever it is, it comes down from the court. And it is going to require some enforcement. And the Congress says: "No, we're not going to put the money in there."

LEAHY: Can the Congress do that?

ALITO: Well, I'd have to know the facts of the case and hear the arguments on both sides of it.

Unless there was a constitutional objection, then that falls within one of the most important powers of the Congress, the expenditure of funds that Congress exercises.

The framers wanted Congress to have the control of the purse because Congress is the branch that's closest to the people. And I would think that -- and Congress obviously has great latitude in this area.

I don't know what constitutional objections would be raised to doing that with respect to a nonconstitutional question. But I'd have to understand what exactly was going on.

LEAHY: Well, it's something to keep in mind because it may happen.

You know, we can grandstand -- Congress can grandstand the way it did on the Schiavo case, you have to wonder what else may come down.

One of the advantages or disadvantages of being here for a long time -- I've actually been here for the hearings on every member of the Supreme Court, including that of former Chief Justice Rehnquist. And Senator Specter and I have served here together a long time. And I went back to one of his questions. He asked then Justice Rehnquist whether Congress can strip the Supreme Court of jurisdiction over First Amendment cases involving freedom of speech, press or religion.

And I think the chairman remembers this. He can be a rather tenacious questioner, as I know from some of my weekend phone calls from him.

(LAUGHTER)

LEAHY: But he kept pushing then Justice Rehnquist until he finally got an answer. In the end, then Justice Rehnquist gave his view. He said that Congress could not remove the court's jurisdiction over First Amendment cases.

So let me ask the same question that Senator Specter asked in 1986: Does Congress have the authority to say the Supreme Court does not have jurisdiction over First Amendment issues of freedom of speech, press and religion?

ALITO: Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago about taking away the Supreme Court's appellate jurisdiction over a topic of cases. It's not a question that I have -- obviously have had to deal with in my capacity as a judge or something that I've written about or studied in any sort of a focused way.

My understanding of the writing on the question is that there's a division of thought among leading constitutional scholars on the issue. And there are some who argue that Congress has plenary authority to define the appellate jurisdiction over the Supreme Court and there others who argue that if Congress takes away the authority of the Supreme Court to hear a particular type of case, that there could be a violation of another constitutional provision. And, in that instance, it would be the First Amendment.

ALITO: And as a matter of constitutional law, I don't feel I can go further than that.

LEAHY: But, Judge, this is somewhat similar to the initial answers given by then-Justice Rehnquist. But he ultimately came down and said in that hearing that Congress could not remove the court's jurisdiction over First Amendment cases.

Are you telling me that -- and I just want to make sure I fully understand your answer -- you're not willing to go to the extent then- Justice Rehnquist did at his hearing?

ALITO: I gave a speech a while ago addressing this question from a practical standpoint or touching on it from a practical standpoint. And I said I thought that doing something like this would be an awkward and undesirable way of proceeding because it would lead to a lack of uniformity in decisions.

If jurisdiction is taken away from the Supreme Court, but jurisdiction remains in the courts of appeals on it, then conflicts in the circuits would develop and you'd have conflicting decisions potentially governing in different parts of the country and no way to resolve the issue.

And if the jurisdiction was taken away from the federal courts in general, then you would potentially have conflicting state court decisions. So the First Amendment, or whatever constitutional provision was at issue, would mean something different potentially in Vermont than it did in New Hampshire or in some other state.

So there are undesirable practical consequences of proceeding in that way.

LEAHY: Your answer would be the same if I was asking, I assume, asking the question of the Fourth or the Fifth or Sixth Amendment?

ALITO: It would be, Senator. I have just not studied this issue in enough depth to be able to give an answer. I would have to study it in depth and probably hear it in the context of the case.

What I do know is that there's a division of authority among leading constitutional scholars. And I would not want to hazard an answer to the question here without going into the question, studying the question in considerably greater depth than I have.

LEAHY: This will be my last. And I appreciate the courtesy of the chairman who, I might say, has run this hearing with total fairness, as he always does. I may have some follow-up questions. This will be my last chance to ask you anything.

Under your theory of unitary executive are citizen suit provisions, such as those in our environmental laws, allowing citizens to act basically as a private attorneys general and sue polluters, are they constitutional?

ALITO: I don't see a connection between the unitary executive theory and that issue.

And I think Congress has the authority to create a private cause of action for anyone that Congress chooses to create such a cause of action for, subject only to whatever limitations are imposed by the Constitution.

ALITO: But we often grapple with the issue of whether Congress intended to create a private cause of action for a particular class of plaintiffs. That's a difficult issue that comes up with some frequency in federal litigation.

But where Congress speaks directly to the question and defines the category of plaintiffs who can bring a suit, a citizen suit or whatever it is, then that's definitive; of course, subject only to whatever limitations the Constitution imposes.

LEAHY: Judge, that's an answer -- substance of what you said is something, obviously, I would like. But I'm still troubled by it, because in November of 2000, right after the presidential election, you came and spoke to a meeting of the Annual Federalist Society Lawyers Convention about the powers of the president.

And when you discussed your theory of a unitary executive, you criticized the Supreme Court's upholding the independent counsel statute, among other things.

Is your answer today different than what you were saying then?

ALITO: What I said in that speech was that the Constitution confers the executive power on the president. And when we are dealing with something that is within the president's executive power -- without getting into the scope of executive power; and there, I was focusing on the president's duty to take care that the laws are faithfully executed; that's explicitly set out in the Constitution, so there can't be any debate about whether or not the president has that power -- when we're dealing with something that is within the scope of the president's executive power, the president should have the authority to control the executive branch.

ALITO: And the latest expression of the Supreme Court on that issue at the time was the Morrison decision. And the Morrison decision formulated the governing standard in what I would call functional terms.

And it said that Congress has the authority to place restrictions on the president's ability to remove inferior executive officers provided that, in doing so, Congress does not take away the president's authority to control the executive branch.

And I was talking about the importance of maintaining the principle that the president is the head of the executive branch and should control the executive branch.

LEAHY: But you did, at that time, criticize the Supreme Court upholding independent counsel statute, did you not?

ALITO: I said that it was inconsistent with what you could call the pure theory of the unitary executive.

But at the time, of course, Morrison had been decided. It was a resounding 8-1 decision and it is a very important precedent of the court.

LEAHY: If you were there it might be 7-2; is that what you're suggesting?

ALITO: Well, if it comes up before me, if I'm confirmed, then Morrison is a strong expression of the view of the Supreme Court on the question and an 8-1 precedent on an issue that was important and controversial at the time when it came up before the court.

ALITO: And it was very clear and, as I said, a resounding decision by the Supreme Court on the question.

LEAHY: Well, I'm now intruding on other senators' time. And I may do a follow-up question with you.

Thank you for your answers. We've obviously agreed on some things, disagreed on others. And I appreciate you taking the time to answer.

Mr. Chairman, I appreciate your time.

SPECTER: I'm going to use just a little of my reserved time to comment on what Senator Leahy raised about the issue with Chief Justice Rehnquist on his statement that you could not take away the jurisdiction of the Supreme Court of the United States on First Amendment issues.

That was as interesting a dialogue as I've had in my tenure here, and I've had a few. And it arose in a curious context. I'd asked the chief justice about the question, and he refused to answer.

And over night, the staff had found an article written by a young Arizona lawyer named William H. Rehnquist in 1958 which was published in the Harvard Law Record, not the Harvard Law Review but the Harvard Law Record. And, in that article, lawyer Rehnquist said that the Senate Judiciary Committee was derelict in its duty in questioning Justice Whittaker at his confirmation hearings in not asking pointed questions about due process or equal protection.

And when my turn came, I came back to then Justice Rehnquist and said, "How about it? Are you that William H. Rehnquist?"

SPECTER: And he admitted he was; didn't have much choice.

And I said, "Well, how about his article?" And he emphatically said, "I was wrong."

(LAUGHTER)

That provided...

(UNKNOWN): He was under oath.

(LAUGHTER)

SPECTER: That provided an opening, and I proceeded to continue the line of questioning. And finally he allowed as to how Congress couldn't take away the court's power over the First Amendment.

Seems to me patently clear that the Congress cannot take away the jurisdiction of the Supreme Court on constitutional issues -- cannot do it. That's the principal function of the Supreme Court of the United States, is to interpret the Constitution. And if the Congress can take away that authority, the court's authority would be vacuous.

But then, as you might expect, I asked him about Fourth Amendment search and seizure and Fifth Amendment privilege against self- incrimination -- went right down the line. He refused to answer every question.

And I said, "Well, why will you answer questions on the First Amendment and not on the rest of them?" He wouldn't answer that either.

(LAUGHTER)

Chief Justice Rehnquist was confirmed 65-33, which confirmed an observation which I have made from time to time, Judge Alito: that nominees just about as many questions as they think they have to to be confirmed.

Now, you may turn out to be a notable exception, but I think that's a valid generalization. And it also confirmed my experience that nominees remember these proceedings and nominees are influenced by these proceedings in very subtle ways.

SPECTER: We don't extract promises, but when Senator Leahy very adroitly asks you about the rule of four on granting cert -- four justices say, "A cert's granted" -- but it takes give to stay an execution in a capital case, how ridiculous can you be?

And Senator Leahy wondered if you'd remember that. Well, I predict you'll, if confirmed, remember that. In fact, I predict you'll remember it even if you're not confirmed.

But to this day, justices comment to me about questions they had here. Every time I see Justice Souter, he says he still hasn't made up his mind on whether Korea was a war or not. And the other justices -- I won't go into any more detail.

I'm going to reserve the balance of my 20:54.

Senator Hatch?

HATCH: Well, I'll reserve my 25 minutes.

SPECTER: Senator Kennedy, you're recognized for up to 25 minutes.

KENNEDY: Thank you. Thank you.

Good morning.

ALITO: Good morning, Senator.

KENNEDY: Just to initially follow up on the last area of questioning by Senator Leahy about the unitary presidency, I've asked you questions about this earlier in the week and my colleagues have. I'm not going to get back into the speech you gave at the Federalist Society.

Well, I'll mention just the one part of it that is of concern: "If the administrative agencies are in the federal government, which they certainly are, they have to be in one of those branches -- legislative, executive judicial -- and the logical candidate is the executive branch.

And the president, it continues, the president has the power and the duty to supervise the way to which the board and the executive branch officials exercise the president's power, carrying federal law into execution."

KENNEDY: So we asked you about that power and that authority. And you responded, as I think you just repeated here, that the Humphrey case was the dominating case on this issue. Am I roughly correct? I'm trying to get through some material.

ALITO: Yes. It was the leading case. It was followed up by Morrison cases.

KENNEDY: Followed up by the Morrison case as the controlling case on the administrative agencies.

What you haven't mentioned to date is that the theory -- what you haven't mentioned to date is your dissent from the Morrison case. We've been trying to gain your view about the unitary presidency. Most people believe we have an executive, legislative and judicial, and now we have this unitary presidency which many people don't really kind of understand and it sounds a little bizarre.

We want to know about -- you've indicated support for it. You've commented back and forth about it. You've indicated the controlling cases that establish the administrative agencies. You refer to the Morrison case as being guiding, the authority.

But then in your comments about the Morrison, you then proceed to outline a legal strategy for getting around Morrison.

This is what you said: "Perhaps the Morrison decision can be read in a way that heeds, if not the constitutional text that I mentioned at least the objectives for setting up a unitary executive." That could lead to a fairly strong degree of presidential control over the work of the administrative agencies in the area of policy-making.

Our questions in this hearing is: What is your view of the unitary presidency?

KENNEDY: You've responded in a number of our people, but we were interested in your view and your comments on the Morrison case, which you say is the controlling, but we want to know your view.

And it includes these words: that could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making.

Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?

ALITO: I don't think that it would, Senator. The administrative agencies -- the term administrative agencies is a broad term, and it includes...

KENNEDY: The Federal Reserve?

ALITO: It includes agencies that are not regarded as so-called independent agencies. It includes agencies that is are within -- that are squarely within the executive branch under anybody's understanding of the term, agencies that are headed by a presidential appointee whose term of office is at the pleasure of the president.

And that's principally what I'm talking about there, the ability of the president to control the structure of the executive branch, not agencies -- the term administrative agencies is not synonymous with agencies like the FTC which was involved in the Humphrey's Executor case where the agency is headed by a commission and commissioners are appointed by the president for a term of office and there are conditions placed on the removal of the agency -- of the commissioners.

KENNEDY: Well, the point, Judge -- the answers you gave both to my colleagues, Senator Leahy, Durbin and to me, in the quote, "The concept of a unitary executive does not have to do with the scope of executive power," really was not accurate.

KENNEDY: You're admitting now that it has to do with the administrative agencies. And this would have a dramatic and important reconsideration of the balance between the executive and the Congress.

I haven't got the time to go through.

But we're talking about the Federal Reserve, Consumer Product Safety, the Federal Trade Commission, a number of the agencies that would be directly considered and that have very, very important independent strategy.

ALITO: Senator, as to the agencies that are headed by commissions, the members of which are appointed for terms, and there are limitations placed on removal, the leading precedent is Humphrey's Executor. And that is reinforced, and I would say very dramatically reinforced, by the decision in Morrison which did not involve such an agency. It involved an officer who was carrying out what I think everyone would agree is a core function of the executive branch, which is the enforcement of the law, taking care that the laws are faithfully executed.

KENNEDY: But the point here is you take exception to Morrison. You're very clear about -- we're interested in your views. We understand Humphrey's and Morrison are the guiding laws. But we've talked about stare decisis and other precedents.

But you have a different view with regards to the role of the executive now, an enhanced role, what they called the unitary presidency. And that has to do as well with the balance between the executive and the Congress in a very important way in terms of the use of administrative agencies.

I haven't got the time to go over through. But we did have some discussion about those agencies and how it would alter the balance of authority and power between the Congress and the executive.

KENNEDY: That's very important. It's enormously interesting. We've has Professor Calabrese from Harvard University spell this out in great detail now, and I know you've separated yourself a bit from his thinking to the extent that he would go in terms of administrative agencies.

The point is, it would be a different relationship if your view was the dominant view in the Supreme Court between the executive and the Congress. And that's really the point.

ALITO: Senator Kennedy, what I've tried to say is that I regard this as a line of precedent that is very well developed, and I have no quarrel with it. And it culminates in Morrison in which the Supreme Court said that even as to an inferior officer who's carrying out the core executive function of taking care that the laws are faithfully executed, it is permissible for Congress to place restrictions on the ability of a president to remove such an officer, provided that in doing so there is no interference with the president's authority. And they found no interference with that authority there.

And that is an expression of the Supreme Court's view on an issue where the claim that there should be no removal restrictions imposed is far stronger than it is with respect to an independent agency like the one involved in Humphrey's Executor.

KENNEDY: Well, the point is that you've differed with the Morrison and outlined a different kind of a strategy.

I want to move on. I want to come back just briefly again to the Vanguard issue, which continues to trouble and puzzle me by your answers to me and others.

Now, just to get back to the starting point, in your sworn statement to the committee when you were nominated to the circuit court in 1990, on page 15 of that statement you wrote this about your recusal practices: "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard Companies."

KENNEDY: So according to your sworn promise, you were going to recuse yourself from cases involving the Vanguard Companies, is that correct?

ALITO: I said I would disqualify myself from any cases involving the Vanguard Companies.

KENNEDY: Recuse. All right.

You also said you'd recuse yourself from any case involving your sister's firm...

ALITO: That's correct.

KENNEDY: ... in cases in which you were involved in the U.S. Attorney's Office. Is that correct?

ALITO: Yes, that's correct.

KENNEDY: And there's been some discussion as to whether that commitment covered only the initial period of your judgeship. And I'm not going to go on into that. I'm not going into that.

I just want to know about the steps you took to meet your commitment to the committee even in the initial years. On Tuesday, you told Senator Feingold that you had no recollection of whether you put Vanguard on your recusal list when you were first appointed to the bench in 1990.

Is that still right?

ALITO: That's correct. I don't have the initial list that was submitted to the clerk's office. And I think I clarified, in response to Senator Feingold's question, that that is a list that is used by the clerk's office to make the first cut on recusal issues. But it is not by any means the last word.

KENNEDY: OK.

And in 1990, you owned $80,000 of Vanguard funds. Is that right? And over the year it grew to hundreds of thousands. Is that correct?

ALITO: It grew, yes.

KENNEDY: So you were getting reports from Vanguard now either monthly or quarterly or annually, were you not -- reporting?

ALITO: Yes, I was.

KENNEDY: All during this period of time?

ALITO: Yes.

KENNEDY: Do you know whether Vanguard was on your recusal list in 1991?

ALITO: I don't know what was on the list that was with the clerk's office prior to the time when the system was computerized.

ALITO: And I have seen recently -- and I believe you have -- copies of the list that were on the computer. And those lists do not include Vanguard. There's no question about that.

KENNEDY: We received your standing recusal list from the 3rd Circuit earlier this week. It's dated January 28th, 1993. Vanguard is not on it. You have your sister's law firm on it, you have your cases from the U.S. Attorney's Office on it, but not Vanguard, your largest investment.

Here are the recusal lists for 1994, 1995, 1996 and Vanguard is not on it any of them either.

Do you have any reason to disagree with the report from the clerk of the court?

ALITO: I don't, Senator. I don't know whether -- I have no comment on the list. That's the list that they had. I don't know exactly how that list came about, but that's the list they have.

KENNEDY: What does it say at the top of 1/28/93 list under the date? As I understand it, it says no changes.

ALITO: As of 1/28/93, no changes. That's correct.

KENNEDY: This was '93. So there were no changes in that from '92. And you've listed probably eight or nine different items on there, have you not?

ALITO: There are eight items listed.

KENNEDY: OK. So you have eight items on there. Vanguard isn't on. And it says no changes from the previous year. So I assume that means '92 list was the same. So you did not have Vanguard on the '92 list either.

Do you remember whether you ever placed Vanguard on your recusal list at anytime between the time you were sworn in and January 1993?

ALITO: As I said, I don't have a copy of lists that predate this. In fact, I didn't have a copy of these lists. And I don't know -- obviously, I can't recall what was on their earlier list.

KENNEDY: Well, in 1994, you removed the U.S. Attorney's Office from your recusal list. Is that right?

ALITO: Yes.

KENNEDY: So you did revisit the recusal list at that time?

ALITO: I notified the clerk's office to take the U.S. Attorney's Office off the list. I actually think I have a copy of the letter that I sent there. I don't believe that I looked at the list and crossed it off the list.

I sent them a letter and I outlined -- I say, it's now been four years. This was another instance of my going beyond what I had to do. I recused myself in everything from the office, not just things that were there while I was in office.

And after the passage of four years, I thought that the cases that I had had any possible connection has washed out.

And so, I sent a letter, and have a copy of the letter, saying, take it off this list but notify the U.S. Attorney's Office and the public defender's offices that they should notify the clerk's office if any case comes up in which they have any reason to believe that any aspect of the case was in the U.S. Attorney's Office while I was there.

KENNEDY: Well, I just mentioned that one of the things you had to do was put Vanguard on the list, was it not, because you gave assurances to the committee, sworn testimony, that you were going to recuse yourself? That was one of the things.

ALITO: Senator, if it was not on the initial list, then that would be an oversight on my part. I said, in answering the question to the Senate, I don't believe conflicts of interest are likely to arise. They rarely do arise with respect to mutual funds.

That's one of the main reasons judges and other people who have to worry about conflicts, invest in mutual funds. And no Vanguard case -- no case involving Vanguard -- came before me for 12 years.

KENNEDY: Well, the point is judges, as I understand and as their responsibility, take the whole issue on recusal extremely seriously and review those lists very, very carefully. And given the assurances and the pledge and the promise under oath to the committee and not to find out that it's on your list.

And over the periods of these last weeks, we've heard so many explanations, Judge. This is what confuses us.

We heard, first of all, that it's a computer glitch. And then we hear, "Well, it doesn't really apply because it's an initial service list. So Vanguard didn't -- I wasn't in it because I didn't make the decisions on it until after I'd been in 12 years. I made the pledge to the committee. I don't know how good that pledge was, or how many years it was good, but that initial pledge -- initial service meant I didn't have to do it."

And then we heard the excuse, "Well, it was a pro se case, and we had different computers." That was what was mentioned in my office, "It's a pro se case, and we have different computers. They're different computers in the clerk's office than exist in the law firms here in Washington from all over the country."

I could never quite understand it, because pro se, obviously talking about individuals, you'd think that might even have a higher kind of a requirement.

But the facts are that you never put that Vanguard on your recusal list and all of these papers were in your control. And that, I think, is a matter of concern -- should be to all of us for the reasons.

ALITO: Senator, can I just say a brief comment on that?

I've tried to be as forthcoming in explaining what happened here as I possibly could be. And I am one of those judges that you described who take recusals very, very seriously. And I served for 15 and a half years. I sat on the merits on well over 4,000 cases.

ALITO: In addition to that, let me just mention the statistics for a recent year. And I think these are typical of my entire period of service.

During the last calendar year, I received over 500 petitions for rehearing -- most of those are in cases I didn't sit on initially; over 400 motions -- most of those are in cases that I didn't hear on the merits.

And many of those are just as important as appeals on the merits because they involve things like whether someone is going to be removed to a country where the person claims that they will be subjected to persecution or there are applications by habeas petitioners for permission to take an appeal in a habeas case. And if we don't issue the certificate of appealability, that's the end of the matter for that petitioner, who may be serving a very length sentence or a life sentence.

So we're talking about well over a thousand cases a year. And this is over a course of 15 years. This Monga case is one case -- and I've said there was an oversight on my part in not focusing on my personal practice when the issue came before me. And when the recusal issue was brought to my attention, I did everything that I could to make sure that nobody could come away from this with the impression that this Ms. Maharaj got anything other than an absolutely fair appeal.

But I've tried to explain the whole thing. I have not given conflicting answers. But I've been asked a number of different questions and there are a number of steps that were involved in what took place.

The fact that it was a pro se case -- I mention that not because the pro se cases are any less important than any other category of cases; they're very important. But it is the fact that our court uses a different system.

ALITO: For pro se cases, we don't have these clearance sheets. And that's when I have typically focused on the issue of recusal.

KENNEDY: Well, I thank you, Judge.

I think if we had in the beginning -- we all make mistakes and all of us, and I've certainly made more than my share. But when we have a statement on this, I think we could have cleared this all up in the very beginning if you just said, "It was a mistake, it wasn't on the list, it should have been on the list," as we're saying now, we would never have had to get all this -- go through this.

But we've had a series of explanations: "The light not going off when I looked over the Vanguard case," the computer glitches, the changes of the computers, "I wasn't told by my clerks." We had all of those statements. And so this was what troubles many of us on the committee about getting the straight answers on an issue which is of great importance.

Mr. Chairman, I want to just, and will use the remainder of my time with a brief comment.

I want to thank our chairman for the fair and dignified way that he's conducted the hearing.

I thank our ranking, Senator Leahy, for his usual courtesies as well.

And I thank Judge Alito for your willingness to serve. And thanks to your family for being here and for the support they've given throughout these hearings.

These stakes are very high and that was reflected in the variety of questions posed over the past three days.

We started these hearings seeking answers. We've come with even more questions about Judge Alito's commitment to the fairness and equality for all.

Unitary executive: We discussed Judge Alito's expansive views on presidential authority. He distanced himself from the theory of the so-called unitary executive, one that promotes extremely expanded executive power.

He gave the committee the platitudes about Supreme Court precedent on the Constitution, but his comments before this committee run away from his statements of the past, some as recently as five years ago, that embrace this fairly radical, and I believe bizarre, theory.

KENNEDY: Professor Steven Calabresi, one of the originator of the unitary executive theory, says that, "The impact on this nation is vast and dramatic. It obliterates the independence of agencies that protect the public, such as the Consumer Product Safety Commission, the Election Commission, Security Exchange Commission and much more."

It makes no sense to describe the effects of this bizarre theory in any other terms. That's how its founders brazenly described it.

Somehow Judge Alito expects us to buy his unique and lonely portrayal of this radical theory as something less than it is.

On the Concerned Alumni of Princeton, much has been made of the wide interest in Judge Alito's interest in this organization, and its, frankly, bigoted views. I was pleased that Judge Alito distanced himself from its repulsive anti-woman, anti-black, anti-disability, anti-gay pronouncements; views that we especially pronounced at the time that Judge Alito believes he joined.

But we still do not have a clear answer to why Judge Alito joined this reprehensible group in the first place. We still do not know why he believed that membership in the group would enhance his job application in the Reagan Justice Department. We still don't know why he chose this organization among so many other organizations that he likely belonged to, but somehow can't remember why.

In the Vanguard, some of our Republican colleagues find it shocking that we would even question Judge Alito about his failure to recuse himself from Vanguard cases. But the real shock is that Judge Alito failed to meet his sworn promise to this committee more seriously.

He says it was an oversight that he corrected 12 years after he made that promise. But now we know, from his own testimony and records, that he apparently never put Vanguard on the recusal list, even immediately after his promise to this committee.

KENNEDY: He has failed to give us any plausible explanation. The bottom line is that he just didn't think his commitment to the committee and to the United States Senate was important enough to honor.

In the 1985 job application in my office, Judge Alito tried to distance himself from the ideological views and legal opinions expressed in the '85 job application to the Reagan Justice Department. He brushed it off as just a job application.

Now he has tried, before the committee, to distance himself from the stunning statement that the White House and Congress somehow are superior to the Supreme Court, the keeper of our liberties.

He didn't back away one inch from his view that a woman's right to make her own reproductive decision is not protected under the Constitution. He didn't back away from his criticism of the principle of one person, one vote.

And on the cases he decided, in case after case, we see legal contortions and inconsistent reasoning to bend over backward to help the powerful. He may cite instances to think that he helped the little guy, but the records clear that the average person has a hard time getting a fair shake in Judge Alito's courtroom.

We're not expecting judges to produce particular results in their decisions, but we do expect fairness, for understanding the real-world impact of their decisions.

Frankly, it would be more comforting if Judge Alito gave individuals the same benefit of the doubt in his courtroom that he's asking from this committee on Vanguard, CAP, the unitary executive and women's privacy.

Now the debate over the nomination continues. In the end, this debate really is about the path of progress and the kind of America we hope to become.

America is noblest when it is just to all of its citizens in equal measure. America is freest when the rights and liberties of all are respected. America is strongest when all can share fairly in its prosperity. And we need a court that will hold us true to these guiding principles today and into the future.

Thank you very much, Mr. Chairman.

SPECTER: Thank you, Senator Kennedy.

Senator Hatch has stated his wish to reclaim at this point some of his reserved time.

Senator Hatch?

HATCH: I don't intend to be very long, but I really believe that bringing up Vanguard or the Princeton matter goes beyond the pale at this point in this hearing. And let me just make this case.

Some of your critics, Judge, have focused a lot of attention on the actions over the Vanguard matter. And I think most people who think think this is really a case of much ado about nothing.

Certainly no law required you to recuse yourself in that case. As a matter of fact, the law -- helped put together by one of the leading Democrat ethicist professors of law -- reads as follows: "Financial interest means ownership of a legal or equitable interest, however small, or a relationship as director, adviser or other active participant in the affairs of a party, except that ownership in a mutual or common investment fund that holds securities is not a, quote, 'financial interest,' unquote, in such securities unless the judge participates in the management of the fund."

Now, you did not participate in the management of the fund, right?

ALITO: No, I certainly did not.

HATCH: OK. That's what the law says.

So what's this big case that's being made? It must be that since you signed -- among dozens of pages -- the committee form that says in the initial service, you agreed to recuse yourself in the Vanguard matter.

HATCH: And then you made a mistake 12 years later, which you rectified. In other words, you lived up to to your word in every sense of that term. Whether or not you considered that initial service or not, but anybody who looks at it would have to say, "My gosh, that doesn't mean 12 years from now."

But you even ignored that and said, "I recognize that I made a mistake; I recused myself even when I didn't have to recuse myself and did everything I could to live up to my word," which you did. In other words you lived up to your word.

That's a fair interpretation, isn't it?

ALITO: It is, Senator. I said, even if you read the answer as setting out a promise that would exist -- that would be binding on me for the entire term of my judicial service, I did disqualify myself in the only Vanguard case that ever came before me.

HATCH: And so to imply somehow or other that you were dishonest because you lived up to your word in the end I think is a little bit beyond the pale.

The ABA reviewed this matter and found that you have an excellent record for integrity. You earned, for the second time, the highest American Bar Association rating, of well qualified.

Now, I put in the record yesterday letters from several ethics professors who have examined this issue and found nothing improper.

They agree that you lived up to your word and you didn't have to, nor will you have to in the future. That's what that law says in 28 U.S. Code, Section 455(d)(4)(i). That's what it says.

Now, I might add that includes a letter from Professor Geoffery Hazard. Back when Justice Breyer was up for confirmation and questions were raised about the propriety of him hearing a case in which some argued -- falsely, I think -- that he had a financial interest, my friend from Massachusetts, Senator Kennedy, favorably cited a letter from Professor Hazard that was favorable to Justice Breyer.

HATCH: And by the way, I'm not going to judge the two cases, but it was every bit as much a case as this weak thing that has been brought against you.

Now, what is going on here is nothing but an attempt to make a big deal about nothing, a small thing. And I think it's being done with a bit of old bait and switch, if you ask my opinion.

I might add that when Judge Breyer -- what happened there in the case of Breyer, I reviewed it, I investigated it, and when the facts showed that he did no wrong, as they show you've done no wrong, I came out of the blocks and defended him. And I'm glad I did because he, like you, is an honest man.

Neither Justice Breyer or you have gone into public service to make money. That's pretty apparent.

Now, to have this like you've done something wrong because you made a mistake and then you rectified it, my gosh, how many times do we have to beat that old dead horse?

With regard to the other thing, I have my own opinion as to why that's repeatedly brought up, when you have adequately explained that you didn't remember much about it or anything at all.

Now we find that the Rusher memoranda contained no reference to you. He never heard of you before now. And it makes you wonder: Why are they bringing that up? Well, I've got my opinions on that, and I think my opinions are right.

The fact of the matter is you've been straightforward here, you've honestly answered the questions, you've answered more questions than almost any Supreme Court nominee in my 29 years in the Senate and I don't think you've been fairly treated.

HATCH: And it makes everybody wonder: Why would anyone want to do these jobs?

I know Law Review graduates (sic) who will make more than the chief justice this year, new graduates from law school.

So it's apparent you're going into this because you love your country, you want to serve it. And you've done it well for 15 years. And anybody who knows you knows that, and I know you.

So I think it's just wrong to keep bringing these phony issues up. And you have to ask, "Well, why are they doing it?" Because they're so phony.

That's all I care to say. I reserve the balance of my time.

SPECTER: Thank you, Senator Hatch. Your 18 minutes and 9 seconds will be reserved.

HATCH: Thank you.

SPECTER: Senator Biden has asked for 20 minutes. We're going to be a little more flexible this final round because I see light at the end of the tunnel, quite frankly. I see our conclusion of these hearings probably not tonight, but tomorrow not too late.

We've started all the sessions exactly on time, and we've held to the time limits up until now, which I think we have to do if we want to move ahead.

If you want start to slip on when you start the timing it just gets out of hand, but at this juncture on a final round, we have a little more flexibility. I see the light at the end of the tunnel.

SPECTER: And, Senator Biden, you're recognized for up to 20 minutes, as you have requested. And if you go a little more, my gavel will stay put.

BIDEN: Well, thank you, Mr. Chairman. I'll try not to.

Judge, I heard the chairman -- and I happened to be doing something on Darfur. And I was in the conference room and I heard the chairman say that -- which I agree; he and I have talked about this -- nominees tend to answer as many questions as they think they have to in order to get confirmed. And I would say that that's been the case with all nominees, basically, since Judge Bork.

I'd also add another, I think, truism that's developed is they tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them.

And it all goes to, kind of, a central point here is: What is the public entitled to know about what you think, or what anyone thinks, before they go on the court?

And I realize there's this dynamic tension between your independence as a nominee, wand to be an independent justice, and answering questions.

But having said that, let me go to an area that I hope you'll engage me in. And it goes to executive power.

I have had the dubious distinction, because of my role in the Judiciary Committee and on the Foreign Relations Committee, in the last three or four times forces have been used by a president, to be the guy in charge of -- at least on my side of the aisle -- drafting or negotiating the drafting of the authority to use force, whether it was President Clinton, before that President Bush and even before that the discussion back on Lebanon, with President Reagan, et cetera.

So it's something I've dealt with a lot. Doesn't mean I'm right about it, but I've thought a lot about it.

And now there is a school of thought that's emerging within the administration that is making -- not illegitimate -- an intellectually thought-out claim that the power of the executive in times of war exceed that of what I would argue a majority of the constitutional scholarship has suggested.

BIDEN: And the fellow -- a very bright guy -- who is referred to as the architect of the president's memorandum on the ability of the presidents to conduct military operations against terrorists and nations supporting them is Professor Yoo.

He's written a book called "The Powers of War and Peace." And he makes some claims that are relatively new among the constitutional scholars in his book. And he had urged, when he was at the administration, the president had these authorities.

For example, he says that, "The framing generation well understood that declarations of war were obsolete." He goes on to say, "Given this context, it's clear that Congress' power to declare war does not constrain a president's independent and plenary right, constitutional authority over the use of force."

And he goes on and he argues, as you well know this argument -- I mean, not from your court, just as an informed, intelligent man -- there's a great debate now of whether or not the administration's internal position is correct. And that is, the president has the authority to go to war absent congressional authorization.

And it was a claim made by Bush I and then dropped. Bush I argued that the only reason the declare war provision is in the Constitution is to give the president the authority to go to war if the president didn't want to. That was the claim made.

Similar claim made here, so I want to ask you a question.

Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there's an immediate threat to our national security?

ALITO: Well, that's a question that I don't think is settled by -- the whole issue of the extent of the president's authority to authorize the use of military force without congressional approval has been the subject of a lot of debate.

The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war, and obviously that means something. It gives Congress the power of the purse, and obviously military operations can't be carried out for any length of time without congressional appropriations. Congress is given the power to raise and support an Army, to maintain a Navy, to make the rules for governing the land and the naval forces.

The president has the power of the commander in chief. And I think there's been general agreement and the Prize cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.

BIDEN: Is that the deciding question, if the Congress does not have the time to act?

ALITO: Well, the Prize cases I think are read to go as far as to say that in that limited circumstance the president can act without congressional approval.

A lot of scholars say that what's important as far as congressional approval is not the form, it's not whether it's a formal declaration of war or not, it's whether there is authorization in one form or another.

The war powers resolution was obviously an expression of the view on the part of Congress...

BIDEN: If I can interrupt, Judge, since I'm not going to have much time. The war powers resolution is a legislative act. I don't want to get into that. I'm talking about the war clause.

And the administration argues and Yoo argues that, quote, "I do not think the president is constitutionally required to get legislative authorization for launching military hostilities."

And that's a pretty central question. That means, if that interpretation is taken, the president could invade -- and maybe there's good reason to -- invade Iraq -- excuse me, invade Syria tomorrow or invade Iran tomorrow without any consultation with the United States Congress.

And that's a pretty big deal. Up to now, Fisher and Henkin and most of the scholarship here has said, "No, no, no. The president's authority falls into the zone where he needs it for emergency purposes, where he doesn't have time to consult with the Congress."

But you seem to be agreeing with the interpretation of the president, Professor Yoo, that says, "Nope, the president has the authority, if he thinks it's necessary, to move from a state of peace to a state of war without any congressional authorization."

ALITO: I hope I'm not giving you that impression, Senator, because I didn't mean to...

BIDEN: Oh, OK, maybe you can...

ALITO: ... say that.

I have not read Professor Yoo's book or anything that he or anyone else has written setting out the theory that you've described.

ALITO: I've been trying to describe what I understand the authorities to say in this area. Generally, when this issue has come up, or variations of this issue have come up in relation to a number of recent wars -- there were a number of efforts to raise issues relating to this in relation to the war in Vietnam. There was an effort to raise it in relation to our military operations in the former Yugoslavia. In most of those instances they didn't -- in most of those instances were -- the cases were dismissed by the lower courts under the so-called political question doctrine that you described earlier.

BIDEN: You and I both know that's a different issue. The political question doctrine is a different issue than whether or not you think that -- I'm asking you as a citizen whether you think that as the administration is arguing -- for example, it argues that the case is made, and I'm quoting, "that the Constitution permits the president to violate international law when he's engaged in war." It just states it flatly. That's what the memorandum of the Justice Department states flatly. The president has that sole authority.

He argues the Congress would have that authority as well, just violate international law. He goes on to argue, as does the memorandum argue -- this is this administration's position, so that's why it's relevant. It says that the president may use his commander in chief and executive power to use military force to protect the nation, subject only to the congressional appropriations.

And that means that the argument the administration is making is the only authority that Congress has is to cut off funds. Let's say we didn't want the president to invade Iran.

BIDEN: The administration argues we could pass a resolution saying that, "You have no authority to invade Iran," and the president could the next day invade Iran. Our only recourse would be to cut off appropriations.

But, as you know, there's no way to cut off specific appropriations. You have to cut off appropriations for the entire military, which means it's a totally useless tool for the Congress in today's world. You know?

You can't say, well, I'm going to cut off only the money for the oil that allows the steaming of the ships to get from the East Coast to the Mediterranean sea and/or to the Persian Gulf.

So it's really kind of important, whether or not you think the president does not need the authority of the United States Congress to wage a war where there's not an imminent threat against the United States. And that's my question.

ALITO: And, Senator, if I'm confirmed and if this comes before me -- or perhaps it could come before me on the Court of Appeals -- the first issue would be the political question doctrine that I've described.

But if we were to get beyond that, what I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question...

BIDEN: OK.

ALITO: ... including particularly one that is as momentous as this. I've set out my understanding of what the Constitution does in allocating powers relating to war between the executive and Congress, and some of what some of the leading authorities have said on this question. But beyond that -- and I haven't read Professor Yoo's book or anything that he's written on this issue -- I would have to study the question.

BIDEN: I thank you.

Well, let me move to something you have spoken about, stare decisis. I know it's been raised a number of times. That's basically following precedent.

As a Circuit Court of Appeals judge, in layman's language, what does that mean, you're required to -- as a circuit court -- what does it mean that you're required to adhere to stare decisis?

ALITO: We are required to follow decisions of the Supreme Court, to start out with because it's a superior court. We when we sit as a panel, it is our practice and I think it's the practice of all the courts of appeals that one panel can't overrule a decision of another panel.

So it means that. When we sit en banc, it is a doctrine that counsels adherence to prior precedent.

BIDEN: But you're allowed in that -- like you did in ACLU v. Schundler, you concluded, which I think you had a right to do, that the precedent of your circuit was incorrect. And you ruled the other way.

I think you had a right to do that, right?

ALITO: We can't do that at the panel level. We can't say a prior panel decision is incorrect.

BIDEN: No, but you can when you sit en banc?

ALITO: When we sit en banc, we can.

BIDEN: When all the justices...

ALITO: That's correct.

BIDEN: OK. Now, how about for a Supreme Court justice; a Supreme Court justice is not required, is he or she, to follow the precedent of the Supreme Court?

Stare decisis doesn't apply there, does it? It may be practiced, but as a practical matter, no scholar say you're required, as a Supreme Court justice to adhere to precedent, are they -- is it?

ALITO: Well, stare decisis certainly applies. Stare decisis takes different forms. There's what some people call horizontal stare decisis, which means a lower court has to follow the higher court -- I'm sorry -- vertical stare decisis.

And then there are various forms of horizontal stare decisis which means a court either must or should follow its own prior precedents. And, on the Supreme Court, of course, when we're talking about whether the Supreme Court is going to follow a prior Supreme Court precedent, that's horizontal.

And there it isn't an absolute requirement to follow a prior precedent.

BIDEN: It is not?

ALITO: It is not an absolute requirement, but it is the presumption that the court will follow its prior precedents.

BIDEN: I understand that. But no one would argue that if you or any other justice broke from -- clearly broke from the precedent of a Supreme Court decision, that you're in any way violating your ethical responsibility as a judge.

BIDEN: You're entitled to do that. Not that you would, but you're entitled to do that, and no one would question that as a matter of right. Is that not correct?

ALITO: I think people would question it, if you disregarded the factors that go into the stare decisis analysis. If you said I don't believe, I'm not absolutely required to follow prior Supreme Court precedent, and I regard every question as a completely open question, I think...

BIDEN: With all due respect, the way it would likely take the form is a justice could say I disagree with the line of cases that say that, you know, a president needs congressional authority, or that a, whatever the line of cases are.

They're not likely to say I disregard stare decisis. It's like what Scalia said in the abortion case, he said, "Look, we just look at this head on. Roe v. Wade is wrongly decided. We should just say so." And he's entitled to do that. And if he had a majority -- I'm not suggesting what you would do on that -- he's entitled to do that, and that wouldn't be a violation of any written or unwritten code that relates to a Supreme Court justice's conduct, would it?

ALITO: Different justices and different judges have different views about stare decisis, but my view is that you need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important.

ALITO: But I've also said it's not an inexorable command.

In the area of constitutional law, there has to be the ability to revisit a case like Plessy v. Ferguson. I don't think anybody would want a system of stare decisis that made that impossible.

BIDEN: OK.

My time -- three minutes left -- I'd like to try to get quickly to another area here, if I may, that you've been questioned on, this notion of unitary executive and the questions referencing Morrison and the dissent of Scalia, et cetera.

As I reach and teach the dissent of Scalia -- and I won't take the time, in the interest of time, to read his exact language -- he has a very scathing and intellectually justifiable, many would argue, criticism of the test employed by the majority in that case to determine whether separation of powers has been breached. He argues there are very bright lines, that there can be no sharing of any of the power. If it's an executive power, it's an executive power and it's executive power.

He would argue that the alphabet agencies -- the FDA, the FCC, the EPA -- they are really not constitutionally permissible because the FDA makes a legislative judgment, it makes a judicial judgment, and it imposes fines and penalties, and so therefore it does all three things as sort of the bastard child.

But most of the -- the majority of the justices say that as long as the power one branch is using does not unduly trench upon the power of the other branch, or it does not substantially affect its ability to carry out its powers, then that's permissible.

BIDEN: Which school of thought do you fall into?

ALITO: Well, different issues are presented in different factual situations.

BIDEN: That's why I didn't give you a specific issue.

ALITO: Well, I think you need a specific issue in order to answer it's. For example...

BIDEN: OK, the FDA, is it constitutional, Federal Drug Administration?

ALITO: I don't know whether there are statutory restrictions on the removal of the FDA commissioner.

BIDEN: No, but there are. The FDA does exercise judicial power. It makes judgments -- "You, drug company A, violated the law."

ALITO: And I don't know any constitutional object to that.

BIDEN: Well, Scalia?

ALITO: I don't know that he would have a constitutional objection to that. My understanding is that he would not have a constitutional objection to their doing that, but I could be mistaken.

And I wouldn't want to prejudge my constitutional question that might be presented to me. But I'm not aware of a constitutional -- if there isn't any limitation on removal, then there obviously isn't a removal issue there.

As to the agencies where there are restrictions on the removal of commissioners who are appointed for a term, that issue is dealt with in Humphrey's Executor and Weiner and in Morrison. And Morrison was 8-1 and the other cases would be, sort of, a fortiori from Morrison.

BIDEN: Well, my time's up. And hopefully someone will pursue this unitary executive issue about private suits, because I thought what you explained was a little inconsistent, or I don't understand it. But I'll let someone else do that.

Thank you very much.

SPECTER: Thanks very much, Senator Biden.

Senator Grassley has asked that his time be reserved. Senator Grassley has other duties which he had to attend to. He was here earlier; will be back. He's also chairman of the Finance Committee.

Just a word, when senators come and go -- everybody has many committees and many constituents and many visitors and many callers. So when they're not here, you can conclude they're otherwise engaged.

And Senator Grassley is now.

SPECTER: But his time is reserved.

Senator Kohl has asked for 20 minutes.

Senator Kohl, we'll set the clock at 20 minutes for you. And as I said earlier, we have some flexibility here.

KOHL: I thank you very much, Mr. Chairman.

Judge Alito, elected officials make decisions on issues every day as we try to best represent the people of our states. And if our constituents do not think that the choices we make reflect their opinions, then every few years they have an opportunity to vote for someone else.

As you know, that's not the case with the courts. Once confirmed, federal judges have lifetime tenure and are virtually unaccountable.

And that lifetime tenure can result in a judge or in a court that is removed from the thoughts and opinions of most Americans. As public opinion changes on an issue, the court may cease to reflect the views of the country.

If the courts take positions contrary to what most Americans think about an issue or a decide case, very important case, in a way that is clearly out of the mainstream of American thought, what can be done about it? And do you think that the courts need to consider public opinion when deciding cases?

ALITO: I think that the courts were structured the way they are so that they would not decide their cases based on public opinion.

If the framers had wanted the federal courts to follow public opinion, then they would have made federal judges elected officials, as state judges are in many states.

ALITO: They gave them lifetime tenure because they thought there was a critical difference between deciding cases under the Constitution and the laws and responding to public opinion.

Now, they gave the courts limited authority because they wanted most of the decisions that affect people's daily lives to be made by the branches of government that are directly responsible to the people, so that the people can control their own destiny.

The framers' theory was that sovereignty lay with the people and the government was legitimate only insofar as it responded to the people. And that's why Congress is structured the way it is, that's why the presidency is structured the way it is.

But the courts were viewed -- the courts are not a democratic institution. And they were structured the way they are because they saw a difference between the judicial function and the other functions that are performed by the branches of the federal government.

KOHL: Well, and yet the courts, particularly the Rehnquist court, has struck down more laws than any court in recent memory, in response to your comment about the legislatures as being involved in the daily lives of people. And the rate that they've been striking down laws during the Rehnquist court was six times faster than during the first 200 years of our republic.

So how do we deal with the fact that while the legislature, in your opinion, is supposed to represent the daily lives of people, the courts, particularly Supreme Court in recent years, has been striking down the laws of the legislature more often than ever before?

ALITO: Acts of Congress are presumptively constitutional and I don't think that saying that is just words.

ALITO: I think that means something. Members of Congress take an oath to support the Constitution and I think that the presumption of constitutionality means a lot.

And I think that judgments that are reached by the legislative branch in the form of findings of fact, for example, are entitled to great respect because of the structure of our government, the fact that the basic policy decisions are supposed to be made by the legislative branch and carried out by the executive branch, and also for the practical reason or the functional reason that Congress is in a better position to evaluate conditions in our country and conditions in our society and to make findings and to determine what's appropriate to deal with the social and economic problems that we face.

So I would certainly approach the question of determining whether an act of Congress is constitutional with a heavy presumption in favor of the constitutionality of what Congress has done.

Now, ultimately, Marbury v. Madison decided the question that when a case or controversy comes before the Supreme Court, and the constitutionality of an act of Congress is challenged, it is the duty of the court to decide the question. Unless we were going to go back to 1819, then that's the practice that the federal courts have to follow. But they should always do that with an appreciation of their limited role and the role that the legislature is supposed to play.

KOHL: All right. As a follow-up to that, would you comment on term limits for federal judges or age limits for federal judges?

KOHL: As you know, if a judge so wishes, he or she can serve forever. Do you think that's a good thing in our society?

Should judges be term limited? Should judges, at least, be age limited? Or should they serve just as long as they wish?

ALITO: Well, those are issues that are decided by the Constitution. The framers said that federal judges have life tenure. So, without amending the Constitution, I don't think you could make, you could you have judges serve for a term of years or impose an age limitation on...

KOHL: What is your opinion?

ALITO: On federal judges? I'm not really sure. I understand the arguments in favor of doing both of those things. And state courts do that.

And, although I said yesterday, I didn't think we should look to foreign law in interpreting our Constitution, I don't see a problem in looking to the practices of foreign countries in the way they organize their constitutional courts.

And I believe that many of them do have term limitations on the length of service of a member of the highest court and other members of the judiciary.

So, there are arguments on both sides of the question. If you had a short term of years, you would have a judiciary that was like an elected judiciary. And you would have the advantages and the disadvantages of that kind of structure.

ALITO: But there are arguments on both sides of the question. And it's for other people to decide...

KOHL: Right. We're asking you -- you know, I appreciate that and I appreciate your thoughtfulness. But again, this is the only time -- today may be the last time -- that we ever have a chance as a nation to talk to you.

So you have a thought on it? I mean, I can't believe you don't have a thought. You know, we're not going to amend the Constitution tomorrow based on your thought that you expressed today.

But what is your thought? Do you think it's a good thing for judges to serve unaccountably forever, no age limits, no term limit? Or do you think it might be the best thing for our society for judges, after a reasonably long period of time if you so wish or at a certain age, to phase themselves out?

ALITO: If I had been a delegate to the Constitutional Convention in Philadelphia in 1787, which is a little hard for me to imagine, but if I had been there, and knowing the way things work out, I guess I would narrow the range of possibilities down to -- the range of options that I would consider down to either life tenure or a long term of years so that the judiciary would be insulated from being swayed by popular opinion during a particular period as to the constitutional questions that come before them.

And as between those, I'm not sure which I would choose. If the judiciary is going to exercise the power of judicial review in enforcing constitutional rights, then I would think that one of those two options would be the best.

But I wasn't in Philadelphia in 1787. So I have (inaudible) on that question.

KOHL: Judge, at the end of its term last year, in a 5-4 decision, the Supreme Court ruled in Kelo v. City of New London that it was constitutional for a local government to seize private property for private economic development.

Many people are alarmed about the consequences of this ruling because of the words of Justice O'Connor. Under the logic of the Kelo case, quote, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton, any home with a shopping mall or any farm with a factory," unquote.

KOHL: So what is your view of the Kelo decision, Judge Alito?

ALITO: Well, what I can say is that it's a precedent of the court, and it built on the Midkiff decision, which had been handed down a number of years earlier.

I know that it touches some very sensitive nerves. When someone's home is being taken away, using the power of eminent domain, that is a blow to a lot of people.

Even if they're going to get compensated at fair market value for their home, the home often means more to people than just dollars and cents. It's a place that often involves a lot of emotion. They have emotional attachments to it. They've lived in it a long time. They're familiar with the neighborhood. They want to be with the neighbors they like. They want to stay in the same area. They may have emotional attachments to things in the home.

So it's a tremendous blow. And I suppose that when -- I would imagine that when someone's home is being taken away, a modest home, for the purpose of building a very expensive commercial structure, that that is particularly galling.

But Kelo was the decision of the court, and I've got my view about stare decisis. And should that issue come up again, then obviously the stare decisis factors would have to be considered. The stare decisis question would have to be the first question addressed. And the factors that I've discussed would have to be weighed.

KOHL: Well, your comment is, "On the one, and on the other hand," and I do appreciate that.

KOHL: But I'd ask you, if you would, venture an opinion more precisely, specifically, do you agree in general with Justice O'Connor's dissent?

ALITO: Well, Senator, I don't think I can answer that beyond what I've said.

If the issue were to come before me and if I'm confirmed, then I would first have to consider whether there's any reason for not following Kelo, which is a precedent of the Supreme Court and grew out of the earlier precedent that I discussed, that I mentioned.

Now, I'm not suggesting which way I would decide that question of stare decisis, but that is the way our legal system works; that decisions are presumptively to be followed. And I would have to address that question.

If I got beyond it, I would have to go through the whole judicial process that is set up so that questions of constitutional law and other questions are decided in the best way, reading the briefs, listening to the arguments, participating in the conference and only after that reaching a decision on the merits of it.

KOHL: All right.

As a follow-up, Judge Alito, if confirmed you'll be replacing Justice O'Connor, who is a justice who will be remembered by history as one of the most influential justices of the 20th century. She's also, as you know, a much beloved person.

How will you be different from her, Judge Alito? How do you think Justice O'Connor ought to be remembered, Judge Alito? And how are you like or not like Justice O'Connor as a judge?

ALITO: She certainly will be remembered from many reasons and I think with great admiration. I think she is held in great admiration by the American people at this time, and I think that when people look back they will have great admiration for her work.

She obviously was a pioneering figure, and was an inspiration for many people who want to pursue legal careers and other careers.

She has been a very dedicated justice and has been known for her meticulous devotion to the facts of the particular cases that come before her and her belief that each case needs to be decided on its complex facts, and that's something that is an important part of our judicial process.

I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication, which is what I think the Supreme Court and the other federal courts should carry out. I think that is a central feature of best traditions of our judicial system.

KOHL: She was seen as someone who in a general way was a dissenter of the court. You never had an idea whether she might look a little left or a little right, but she was seen as the center of the court, which as you know is central to your nomination.

And you've said you had great respect for her. You've said you respect her as a justice who did look at the facts and made judgments based on those facts, which is -- I think, you would say about yourself -- umpire calling balls and strikes, pretty much as they see them.

Do you see yourself as a justice, if you're confirmed, who in many ways will fill the same role as Justice O'Connor has filled?

ALITO: I think that anybody who is appointed to any judicial position has to be himself or herself. And I don't think that anybody can try to replace the person or can duplicate the approach of the person who that person is replacing.

ALITO: We all have to proceed in accordance with our own abilities and our own outlook.

And so I don't think that -- I think we all have to be who we are. But I think we can emulate the great jurists of the past. Which is not to say that we can equal them, but we can look at what they've done and see the things that they've done very well and try to approach what they've done in various areas.

And I think that I certainly would try to emulate Justice O'Connor in the ways that I've described. I wouldn't flatter myself to say that I could equal her in any of those ways, but I would certainly try to emulate the conscientious and dignified way in which she's gone about the performance of her judicial duties.

KOHL: You may have answered this question already, but as I said, she was at the center of the court -- at least viewed as a person at the center of the court and served a very useful purpose in that respect.

Is it, in your opinion, likely that you might turn out, in a general way, to be that kind of a justice?

ALITO: I can only answer that, really, by saying what I think I've said before, which is that I'd be the same sort of justice in the Supreme Court as I've been a judge on the court of appeals.

ALITO: I am my own person, with whatever abilities I have and whatever limitations I have. And I think if anybody looks at my record on the court of appeals they can get an idea about the way I approach the work of being a judge. And that's what I would try to do on the Supreme Court.

I don't think I can do anything other than that, and that's what I think I should do, and that's what I would do if I'm confirmed.

KOHL: Judge Alito, I thank you very much.

Mr. Chairman, I thank you very much.

SPECTER: Thank you, Senator Kohl.

We'll take our break now and resume at 10 minutes after 11:00.

(RECESS)

SPECTER: Welcome back, Judge Alito. A thought just crossed my mind that this is the only time when you walk into a room that everybody doesn't stand up.

(LAUGHTER)

ALITO: That happens to me all the time at home, Senator.

(LAUGHTER)

SPECTER: I'm not saying when you come home, Judge Alito. The reception for a judge or a senator or even the chief justice is very different at home than when he walks into a room and a bailiff shouts, "All rise." Just crossed my mind that we weren't all standing up. But as Chief Justice Roberts said, this is a discussion among equals; that is, until you're confirmed, if confirmed.

Senator Kyl?

KYL: Mr. Chairman, I'll reserve my questions for now. Thank you.

SPECTER: Senator Kyl is reserving his time.

Senator Feinstein is about to join us, coming in, so we'll await her arrival, which should be imminently.

I think Senator Feinstein is going to be a few moments or more, so let's turn to Senator Feingold.

FEINGOLD: Mr. Chairman, if that's your wish, I'd certainly defer to Senator Feinstein if she wants to reclaim her time when she comes. But I'll get started if you want.

SPECTER: Let's wait another minute or two for her. She's not in the back room and she's not in the corridor. But let's wait another minute or two for her.

SPECTER: Senator Feinstein, you have made another dramatic entrance. We were all assembled for the committee action on Chief Justice Roberts' when you were on the floor in your position on the Appropriations Committee, managing a bill, and the 17 of us were there.

FEINSTEIN: Not quite, but I thank you for that...

SPECTER: And you walked in with drama, as today. You have asked for up to 10 minutes, Senator Feinstein. We will set the clock at 10, but as I have indicated, we have some flexibility. We see the light at the end of the tunnel.

FEINSTEIN: I may take 20, if that is all right with you, Mr. Chairman.

SPECTER: We'll reset the clock at 20, Senator Feinstein.

FEINSTEIN: Thank you.

Good morning, Judge Alito.

ALITO: Good morning.

FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law.

And you made comments about the balance of powers, that all branches of government are equal.

There are three of us on this committee -- Senator Hatch, Senator DeWine and myself -- that also serve on the Intelligence Committee.

FEINSTEIN: And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America's intelligence activities.

And so this question of presidential authority at a time of crisis -- not necessarily a full declaration of war state to state, but a time of crisis -- because very prescient right now.

And I wanted to talk to you a little bit about the president's plenary authorities as commander in chief -- "plenary" meaning unrestrained and unrestrainable, his plenary authorities to defend the United States -- and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role.

Now, we have explicit powers, as you've said, under the Constitution. And in Section 8, we have the explicit power to raise and support armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It's headed by a general.

So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic).

Now, again to the Jackson test. When the president's power is in least is when the Congress has legislated. And this is where the national -- excuse me -- the Foreign Intelligence Surveillance Act, known as FISA, comes in.

FEINSTEIN: And FISA is very explicit. And let me read a part of it to you.

"Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted."

It does provide -- you used the word "general." It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go -- the attorney general can authorize, provided they go to the FISA court within 72 hours.

I was concerned; there are two questions in this one statement.

FEINSTEIN: The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?

ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute.

But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed.

So he is given the responsibility of making sure that the laws are carried out.

FEINSTEIN: Let me press you on "unconstitutional." Very few of us on this committee are not lawyers. I'm one of them. So let me just speak in common, everyday terms.

There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done.

As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words "deter and preempt any future acts of terrorism or aggression against the United States."

FEINSTEIN: And he refused to do it.

And, Mr. Chairman, if I could place this...

SPECTER: Without objection.

FEINSTEIN: ... statement in the record, since we are going to be having hearings on what's happened. I think this is an inappropriate bit of legislative history. I'd like to place it in the record.

SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.

FEINSTEIN: Thank you.

So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans.

The question then comes, I guess, does the plenary power of the president supersede this?

ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions.

The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force?

And I don't know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other.

Of course, there's a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation.

But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law -- or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that's being dealt with?

ALITO: And I think legislative history can be appropriately consulted.

And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation.

Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question.

And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.

FEINSTEIN: Let me stop you right here, because that's right.

Because detention is a necessary following of an authorization of military force, so detention is logical.

When you've got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without -- and I'm not saying there isn't a reason to do this.

FEINSTEIN: What I'm saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn't that law prevail?

ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter.

Then, depending on how that issue was resolved, it would be -- it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson's method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization...

FEINSTEIN: There was. No statutory authorization to wiretap, right?

ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would...

FEINSTEIN: But, if there wasn't...

ALITO: There might be a constitutional issue. Let me stop there.

There would be a Fourth Amendment issue, obviously.

If you went beyond -- if you determined that there was not statutory authorization, then as far as the issue of presidential power is concerned, you would be in Justice Jackson's scheme, in the category where the president -- you would have to determine if this is the argument that is made; whether the president's power, inherent powers, the powers given to the president under Article II, are sufficient, even taking away congressional authorization, the area where the president is asserting a power to do something in the face of an explicit congressional determination to the contrary.

FEINSTEIN: Now, in my lay mind, the way I interpret that -- and correct me if I'm wrong -- is that you essentially have a conflict, and that it hasn't been decided whether one trumps the other.

ALITO: I think that's close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.

FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?

ALITO: Well, I'm not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential -- he said it expressly -- presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.

FEINSTEIN: OK. Enough of that. Let me move on.

In WR Grace v. the EPA, a chemical company released large amounts of ammonia into the local aquifer in Lansing, Michigan. Under the Safe Drinking Water Act, the EPA ordered the chemical company to clean up the discharge to reduce the concentration of ammonia to a level that wouldn't threaten the health of the community.

FEINSTEIN: The chemical company challenged this EPA decision. You cast, as I understand it, the decisive vote to overrule the EPA, permitting the company to leave more ammonia in the aquifer, despite the EPA's determination that this level of ammonia would continue to endanger the water supply.

In her dissent, Judge Mansmann urged deference to the EPA in matters of science, noting that, quote, "The high degree of deference we are to accord the EPA is a cornerstone to the EPA's power, enshrined in the Safe Drinking Water Act, to protect the public health, the environment and public water supplies from the pernicious effects of toxic wastes," end quote.

Do you agree with the dissent that a reviewing court must generally be at its most deferential when reviewing factual determinations within an agency's special area of expertise?

ALITO: I do agree with that. I don't think there's any question about that.

FEINSTEIN: Do you believe that where an agency is taking action to protect the health of citizens, additional deference should be given?

ALITO: I think that deference is owed to the expertise of administrative agencies. That's an important part of administrative law. And when you're dealing with an agency like the EPA, you would defer to their area of expertise. And I think that's correct.

FEINSTEIN: Should the EPA be accorded the same deference as other governmental agencies?

ALITO: I don't see why it should not. It's the expert on environmental questions.

ALITO: And, for example, if the EPA issues regulations interpreting a statutory provision and its given broad authority under the environmental laws frequently to implement choices that are reflected in the legislation, then I think that it's entitled to a broad measure of deference under the Chevron decision if it issues rules and if any reasonable interpretation of the statute is entitled to deference from the courts.

FEINSTEIN: OK. Let me go way back.

And I recognize that time has gone by and I recognize you were in a different position, but these questions are really aimed to point out the importance of the commerce clause to us.

In 1986, Congress passed the Truth in Mileage Act to prevent odometer fraud. As deputy at the Office of Legal Counsel, you recommended that President Reagan veto the bill because you believed it violated the principles of federalism.

In the draft statement for the president, you wrote, "It is the states and not the federal government that are charged with protecting the health, safety and welfare of their citizens," that's a quote. President Reagan did sign the Truth in Mileage Act.

Does it remain your opinion that it is the states, not the federal government, that are charged with protecting the health, safety and welfare of Americans?

ALITO: Both the federal government and the states have responsibilities in those areas.

Historically, the primary responsibility with respect to those concerns has been with the states. But with the expansion of federal regulatory programs, the federal government has taken on broader and broader responsibilities in those areas and now has very substantial responsibilities in all of those areas under regulatory schemes that have been in place for a long time and I don't believe are being challenged on constitutional grounds at this time.

If I could just say a word about that memo, which I read for the first time in 20 years recently, it's a brief statement. And as I read it, what it is primarily expressing it is not an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan ministration.

The Reagan administration had a policy of implementing its view of federalism concerns through policy-making decisions.

ALITO: In other words, its policy was to go further in respecting what it viewed as the federalist system -- as our federal system of government than the Constitution required, to go further as a policy matter.

And as I read the brief statement, that's what was being expressed there.

FEINSTEIN: So if I understand that, quickly, what you're saying is, this was written as staff in an administration to follow a policy.

But are you also saying, as a judge, this would not necessarily be a position that you would hold in any case?

ALITO: As a judge, I would have no authority and certainly would not try to implement any policy ideas about federalism.

Congress can implement policy ideas about federalism. The Garcia case, in fact, is based on the view -- this is what the Supreme Court said there -- that the primary way in which the federalism concerns that were expressed in National League of Cities was to be implemented in the future was through policy decisions made by Congress.

They said the states are represented in Congress through the membership in the Senate. And protection of the prerogatives of the states should be left to policy decisions made by Congress or decisions made by Congress in implementing its view of how the system of federalism should work.

ALITO: And an executive, a president, can take a similar approach. A president can say: Although the Constitution allows the authority of the federal government to go this far, as a policy matter, I do not want to go along with legislation that goes up to the limits of what the Constitution allows. As a policy matter, I want to stop short of that. As I read this memo, that is what we were saying there.

FEINSTEIN: Thank you very much.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Feinstein.

Senator Grassley has stated his interest in claiming some of his reserve time.

Senator Grassley?

GRASSLEY: A small part of it.

Number one, to make a point that I hope would put a lot of my colleagues who have raised questions about some theory you have about this or that; that whatever political science theories you might have about the executive branch of government, I do not worry about that and I would hope my colleagues would not worry about that because you could have a hundred theories and they could be all crazy. But is it not right that you are a person that is bound by the Constitution to only hear cases and controversies that come before the Supreme Court?

And so, you know, whatever comes before you, you are responsible for deciding it within the constitutional case and controversy.

Secondly, it seems to me that you are a person who has the judicial temperament, as you said so many times, that you are going to keep your own personal views out of it.

It seems to me that you are a person that has indicated to us that you are going to look at a case within the four corners of the law and the facts that apply to that case and nothing more.

GRASSLEY: So any theories you might have about -- what was it called, unitary executive or something -- what's that got to do with your deciding a case?

ALITO: Senator, you are exactly right. If cases involving this area of constitutional law come before me, I will look to the precedents of the Supreme Court. And that's what I think I've been trying to emphasize.

And there are governing precedents in this area. There is Humphrey's Executor and Wiener and, most recently, Morrison, which was an 8-1 decision.

GRASSLEY: Then the other thing -- I'd take an opportunity to just tell you something and not want any response. But that is on the False Claims Act.

This act was originally passed in 1862 because Lincoln didn't have enough people to prosecute fraud by military people against the government. So he empowered individuals to do that under qui tam.

And then in 1942, I think it was, the law was gutted by taking out the qui tam provisions, probably because of World War II and the necessity of getting the job of military construction done.

And then in the 1980s we found a heck of a lot of military -- fraudulent use of taxpayers' money.

GRASSLEY: We held a lot of hearings on that. It came that there wasn't enough being done by the Justice Department to take care of it. We saw the Justice Department making a lot of global settlements.

You know, some company that had done a massive amount of wrong in many areas, and maybe having the Justice Department settle one little dispute, but give a global settlement so that they'd never be prosecuted for anything after that, it led us to beefing up the False Claims Act by putting the qui tam provisions in it.

And it was a terrible thing to get through Congress. I think six months after we voted out of committee, we had every senator putting a hold on it, some bequest of somebody in the defense industry. And you take care of that little problem, and another put a hold on it, and another one put a hold on it.

And finally, the last person was a friend of mine that had a hold on it. I said, "Why did you have a hold on it?"

"Well, some of my friends said that's bad for the defense industry."

And I talked to him about it, and he says, "You know, you're absolutely right."

And we got the last hold off and we got it passed and we got it signed by the president of the United States.

And then over the last several years, we have had the defense industry going, trying to gut it again. Then we had the hospital association trying to gut it because we were using it in medical care.

And it's brought in $12 billion into the federal treasury. And I think it's even had the benefit of discouraging a lot of activity that would go on normally that saved the taxpayers' money without prosecution.

But there are people in the Justice Department, the professional people in the Justice Department, doesn't want some citizen looking over their head and doing their job for them when they aren't doing it.

GRASSLEY: And a district judge in the mid-'80s, or maybe it was the late '80s, in, I think, a General Electric case someplace in Ohio -- when the Justice Department was trying to cut back the award that the relator was going to get, said to this Justice Department guy, "Don't you get it? You wouldn't even have a case if it wasn't for this whistleblower coming forward to make their statement and to make their case."

And, you know, it's grown into quite a thing now.

The only thing I regret about it -- there's a lot of lawyers that are tort attorneys out there getting rich off of it, but there's also a lot of coming in to the federal treasury. And about 15 percent is what it would cost the federal government anyway to bring in the same amount of money if they prosecute it, but they won't prosecute it. And they don't know about all of it. And you've got to rely on the whistleblowers to get the information out there.

So when you're in your very private meetings that you have after you get on the Supreme Court and you're talking about these things, I hope you'll remember that this was meant to serve a worthy purpose, is serving a worthy purpose. And I'd like to have you look at it in a very unbiased way.

(LAUGHTER)

I reserve the rest of my time.

SPECTER: Judge Alito, Senator Grassley's going to follow that up with a strong letter.

(LAUGHTER)

GRASSLEY: The chairman remembers we even had to subpoena William French Smith one time in this whole process.

LEAHY: Chuck, I think we know where you stand on this.

GRASSLEY: OK.

SPECTER: To use a little bit more of my time, Senator Grassley did more than subpoena Attorney General William French Smith; he started proceedings to hold him in contempt.

And that was at about a time when Attorney General Smith was inviting some members of the Judiciary Committee to have lunch. And he was very dour during the entire lunch as far as his attitude toward me and I found out why at the end of the lunch: He wanted to know why I wanted to hold him in contempt. He'd insulted Senator Grassley to the nth degree by confusing me with him.

(LAUGHTER)

Tell your Anita Hill story, Chuck.

GRASSLEY: Well, just to show you how they get mixed up, you know, he asked the questions of Anita Hill and I was sitting behind him, or beside him very quietly because only two Republicans were going to ask questions.

And I went back to my constituency and everybody said to me, "You were awful to Anita Hill. You just treated her awful," because they got me mixed up with him.

(LAUGHTER)

SPECTER: Wait. I didn't know you're going to tell that part of the story.

(LAUGHTER)

GRASSLEY: I thought that's the only part we talked about.

SPECTER: We're just trying to use a little time over here to give you just a little respite from the...

LEAHY: Fortunately, none of this is on television so nobody knows what we're saying here on this story.

SPECTER: Senator Feingold, you haven't told me how much time you'd like to have.

FEINGOLD: I think 25 minutes with flexibility. Maybe I won't have to use it all.

SPECTER: So granted.

Set the clock at 25 minutes.

And you're recognized, Senator Feingold.

FEINGOLD: Thank you, Mr. Chairman.

Good morning, Judge. It's nice to talk to you in the morning for once.

And, thank you, Mr. Chairman, for the opportunity to ask a third round of questions. And I do appreciate the latitude on the time, if it's necessary.

(LAUGHTER)

First, Judge, I want to thank you for arranging to have put together the list of people who participated in your practice sessions.

I'm going to say that I am still somewhat troubled by the idea that you were prepared for this hearing by some lawyers who were very much involved in promoting the purported legal justification for the NSA wiretapping program.

Obviously, this issue of presidential power is so central to this hearing. In fact, my first questions will also be about this as well.

I note, for example, that one of the people who participated in these sessions was Benjamin Powell.

FEINGOLD: He recently advised President Bush on intelligence matters and was just given a recess appointment as general counsel to the national intelligence director.

I also see the name of White House Counsel Harriet Miers on the list. And she, obviously, is involved in the president's position on this matter.

So I'm just going to continue to think about this issue. And I hope that you and the department will, too. I think you would agree that at some point, in a situation like this, an ethical issue could arise.

Let me go back, though, to what many senators have asked you about, including most recently Senator Feinstein. I want to try again to clarify this issue of the constitutional authority of the president to violate a criminal statute.

You've said repeatedly that the president is not above the law. But you've also been careful to qualify this statement by saying that the president must always follow the Constitution and laws that are consistent with the Constitution. And that statement sounds good until you look at it real closely.

After all, everyone agrees that the president must follow constitutional laws. The question is whether presidents can claim inherent power under the Constitution that allow them, in certain cases, to violate a criminal law.

And your formulation seems to leave open the possibility that the president can assert inherent authority to violate the criminal law and still be following -- to use your words -- the Constitution and laws that are consistent with the Constitution.

So I'd like to ask you -- assuming that you've already done phase one, step one, the statutory analysis -- in your view, just because a law is constitutional as it's written, like a murder statute or FISA, that doesn't actually answer the question of whether the president can violate it, does it?

ALITO: I do not think I would separate the constitutional questions into categories. I think it follows from the structure of our Constitution that the Constitution trumps a statute. That was the issue in Marbury v. Madison. It would be rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example...

FEINGOLD: But it is possible, based on your answers, that a statute that has been determined, standing on its own to be constitutional, could in theory run in some conflict with an inherent, as you would say, constitutional power of the president, which in theory, even under Justice Jackson's test, could trump the seemingly constitutional criminal statute -- is that correct?

ALITO: I'm not sure what standing on its own means there. Somebody gave an example in a Law Review article I remember reading of a statute that said that a particular named individual was to be immediately taken into custody by federal law enforcement agents and taken immediately to a certain place to be executed.

Would the president be bound, under his responsibility to take care that the laws are faithfully executed, would the president be legally obligated to do that, even though it flies in the face of some of the most fundamental guarantees in the Constitution?

I think we would all say in a situation like that, no, the Constitution trumps the statutory enactment.

FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute?

ALITO: I want to be very precise on this. What I have said -- and I don't think I can go further than to say this -- is that that situation seems to be exactly what is -- to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do has been explicitly disapproved by Congress.

ALITO: So his own taxonomy contemplates the possibility that -- says that there is this category, and cases can fall in this category. And he seems to contemplate the possibility that that might be justified.

But I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don't think I can go beyond that.

FEINGOLD: I understand that's been your position. I've heard the repeated references to Justice Jackson's test. But all that test says in the end is that the president's power is at the lowest ebb at that point. And I understand, and obviously have enormous regard for Justice Jackson and that opinion in particular.

But I think in this time it leaves me troubled. I'm concerned that if we're simply going to rely on that in the end without getting a better sense of where you might come down in these kind of matters, that it really goes to the very heart of our system of government.

And if somehow that -- even if the president's power is at a very low ebb at that point, I think it still leaves open the possibility of enough ambiguity and vagueness that it could alter the basic balance between the Congress and the presidential power in a way that could affect our very system of government.

ALITO: Well, Senator, this is a momentous constitutional issue. It is the kind of constitutional issue that generally is not resolved -- well, let me say this. It often comes up in a context that is not justiciable.

But I think it would be irresponsible for me to say anything on the substance of the question here.

ALITO: And by not saying it, I don't mean to suggest in any way how I would come out on the question. I don't mean to suggest there could be a case where it would be justified or not.

Particularly, on an issue of this magnitude, I think anybody in my position can say no more than, "This is the framework that the Supreme Court precedents have provided for us. And when the issue comes up, if it comes up, if it comes before me, if it is justiciable, I will analyze it thoroughly." And that's all I can say.

FEINGOLD: And I respect your constraints in this regard.

And, frankly, this isn't so much about you or your appointment. This is about the possibility that you've raised that this may not be justiciable, which is going to be a very serious problem for our system of government if the United States Supreme Court cannot help us resolve these issues because of justiciability issues.

At a time of crisis like this in terms of the fight against terrorism, I think it raises one of the most important issues in the history of our country's constitutional debate. I don't think you disagree with that. But it really troubles me that the Supreme Court could possibly not help us resolve this.

ALITO: And I don't I want to suggest that it is or is not justiciable. We would look to the Baker v. Carr factors.

And that's something else that it would be very irresponsible for me to express an opinion on in this forum. And I want to make it perfectly clear that I'm not doing that.

FEINGOLD: Do you think it could ever be constitutional to admit evidence obtained by torture against an individual who is being charged with a crime?

ALITO: Well, the Fifth Amendment prohibits compelled self- incrimination. And it's long been established that evidence that is obtained through torture is inadmissible in our courts. That's the governing principle.

FEINGOLD: I take that answer to mean it could not be constitutional to admit evidence obtained by torture against someone accused of a crime.

ALITO: In all the contexts that I'm familiar with, that would be the answer.

FEINGOLD: Thank you for that answer.

I want to follow up on one question that Senator Leahy asked this morning about the constitutionality of executing an innocent person.

You said that the Constitution, of course, is designed to prevent that. We all agree on that.

But let's say that the trial was procedurally perfect and there were no legal or constitutional errors, but later evidence proves that the person convicted was unquestionably innocent. Does that person have a constitutional right not to be executed?

ALITO: The person would first have to avail himself or herself of the procedures that Congress has specified for challenging convictions after they've become final.

If this individual has been convicted and has gone through the whole process of direct appeal, either in the state system or in the federal system, then there are procedures. States have procedures for collateral attacks and there are procedures under federal statutes for collateral attacks on federal conventions and on state convictions. And the person would have to go through the procedures that are set out in the statute.

And the system is designed to prevent a person from being executed if the person is innocent. And actual innocence figures very importantly even in these sometimes complex procedures that have to be followed in these collateral attacks.

For example, usually, there's this doctrine of procedural default, which is not something that ordinary people are familiar with, but it means that if a state prisoner is challenging a state conviction, the state prisoner has to take advantage of the procedures that are available under state law.

ALITO: And if the state prisoner doesn't do that...

FEINGOLD: My question assumes that all that's been done and the process went through and there's no legal or constitutional or procedural problems, but evidence suddenly proves that the person convicted was unquestionably innocent.

The question is: Does that person in that posture have a constitutional right not to be executed?

ALITO: Well, then the person would have to, as I said, file a petition. And if it was an initial petition, it would fall into one category. If it was a second or a successive petition, it would fall into another category and the person would have to satisfy the requirements the Congress has set out for filing a second or successive petition.

FEINGOLD: You can't say that the person has a constitutional right not to be executed?

ALITO: Well, I have to know the specific facts of the case and the way it works its way through the legal system. The rules here are complicated. A person has a right. It is one of the most fundamental rights that anybody has. It is a fundamental right and a fundamental objective of our judicial system that nobody is to be convicted without proof beyond a reasonable doubt.

And if there's evidence that the person is not guilty of the offense, then that gets to the very heart of what our whole system of criminal justice is designed to address.

FEINGOLD: I'll stop on that topic.

But, you know, I think there's a real question here simply because somebody is adjudicated guilty but they are, in fact, innocent -- I would take the view that they still have a constitutional right not to be executed.

But I'm glad we could talk about that a bit.

We talk about affirmative action. In her opinion in Grutter v. Bollinger, Justice O'Connor recognized the, quote, "real-world significance and impact of affirmative action programs and policies." And she noted that American businesses need skills obtained through exposure to widely diverse people and cultures. A racially diverse officer corps is essential to the military's ability to fulfill its mission to provide national security. And diversity in colleges and university leads to diversity in civil society, which is, quote, "essential if the dream of one nation indivisible is to be realized," unquote.

Justice O'Connor expressly gave great weight to the views of military leaders who said a highly qualified, racially diverse military is essential.

How much weight would you give to that view?

ALITO: Well, I can speak to the issue of diversity in education from a little bit of my own experience.

A couple of years ago, as an adjunct law professor at Seton Hall Law School, I taught a seminar on civil liberties and terrorism. Because in the wake of the terrorist attacks on 9/11, it became apparent to me that there were going to be a lot of civil liberties issues raised, it seemed to me that these were issues of the utmost importance, so I put together a seminar on the question.

And the first time I conducted the class, we had a class with people of extremely diverse backgrounds relating to this issue. There was a student who had been in the special forces in Bosnia. There was a student who was a Muslim from the Middle East.

ALITO: There were a number of students who had been personally affected, in one way or another, by the terrorist attacks on the World Trade Center. There were students who felt very strongly about civil liberties.

And having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class.

So in that setting I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be.

And the Supreme Court has expressed the view that diversity is a compelling interest, having a diverse student body is a compelling interest. Justice Powell voiced that back in the Bacci case, and it's been reiterated in a number of cases, and, most prominently, most recently in the Grutter case.

FEINGOLD: Yes, in fact, in Gratz and Grutter, seven of the nine justices -- all but Justices Scalia and Thomas -- reaffirmed Justice Powell's determination of the Bacci case that the state has a compelling interest in promoting diversity in the classroom.

Do you think that increasing diversity in the classroom is a compelling state interest?

ALITO: Well, I've spoken to my own personal experience about its importance in education. And Grutter is a precedent that directly addressed this issue, and Gratz, in the context of education. And it's the Supreme Court's recent word on this issue.

FEINGOLD: I hope you'll think it fair that nothing about what you just said would suggest to me that you think it's anything less than a compelling state interest.

ALITO: It's a precedent. And the Supreme Court has dealt with this over a time, and that's the conclusion that they've drawn.

FEINGOLD: Do you believe -- on another subject -- that Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment?

ALITO: I can't think of a reason why Congress would not have that power, but I would have be presented with the arguments.

FEINGOLD: Thank you, Judge.

2001, you wrote an opinion overturning a public school district's anti-harassment policy that protected, among other people, lesbian and gay students. You said the school policy in the case Saxe v. State College Area School District violated the First Amendment.

The case was brought by students who believed that the policy interfered with their ability to speak out against the, quote, "sinful," unquote, nature and harmful effects of homosexuality, as compelled by their religion.

In your Senate questionnaire, you note that you won the Family Research Council Golden Gavel Award in 2001 for your decision striking down that policy. The Family Research Council is a leading conservative group that opposes gay rights.

In order for a policy protecting gay students from harassment to pass constitutional scrutiny, must it have an exception for harassment motivated by religious belief?

ALITO: Let me say what was at issue in the Saxe case, because that is the context in which I dealt with issues like this.

The Saxe case involved a very broad anti-harassment policy that had been adopted by a school district. It not only prohibited the expression of political viewpoints, but it went so far as to say that just about anything that any student would say about another student that would be offensive to that student, including comments on the way the student dressed or the things that they liked to do, would be a violation of the anti-harassment policy.

ALITO: And under the First Amendment, unlike in most other areas of the law, statutes can be challenged on overbreadth grounds. And that was the ground on which the statute was struck down in the Saxe case, that it was overly broad, that it prohibited a great deal of speech that was constitutionally protected.

The Supreme Court decided back in the Tinker case that students don't lose all of their First Amendment rights to freedom of expression when they enter the school grounds.

And Justice Brennan's opinion in that case set out the test that is to be applied there. The schools have greater ability to regulate student's speech than government has to regulate adult speech in general. But the authority of school officials to regulate the political speech by students -- in Tinker it was the wearing of an arm band to protest the war in Vietnam -- is not unlimited and there has to be a threat of disturbance on the school grounds or a violation of the constitutional rights of another student.

And so, any policy that regulated student expression, political expression in a school, would have to satisfy Justice Brennan's Tinker standard.

FEINGOLD: Thank you, Judge.

Does Congress have the authority to enact legislation that would protect gay students of harassment in schools that receive federal funding?

ALITO: That would fall within the South Dakota v. Dole standard, and the question would be whether the condition that's attached to the receipt of the federal funds is germane to the purpose of the funding, and that's a standard that gives Congress very broad authority.

FEINGOLD: So the Congress does have the authority in general; the question would be scope of it?

ALITO: Congress has the authority to attach all sorts of conditions to the receipt of federal money. It has to be clear so that the states understand what they're getting into, that if you take this money, there are conditions that go with it -- but provided that that clear statement requirement is satisfied, and provided that the condition is germane to the purpose of the funding, then Congress can attach conditions and it could do so in this area.

FEINGOLD: Judge, let me switch to an ethics issue that is not Vanguard. As you know, after your testimony concludes today, a number of outside witnesses are coming to testify about your nomination, including seven current and former judges from your court.

As far as I know, this is the first time that sitting federal judges have testified on behalf of the Supreme Court nominee. And I'm a little troubled by it. I hope to have some opportunity to question the judges about this, but I think it may raise something of an ethical issue for you.

If you are confirmed to the Supreme Court, how would you analyze a possible recusal motion if an appeal on a case from one of those sitting judges testifying on your behalf were to come before you? Will you have to recuse yourself from any case where one of these judges was involved in the decision?

ALITO: That's not a question that I've given any thought to before this minute, Senator, so I don't know that I could answer it and I would want to answer any recusal question very carefully.

FEINGOLD: Perhaps you could give me an answer after you've had a chance to think about it?

ALITO: I would certainly be happy to do that.

FEINGOLD: I appreciate that.

Well, Mr. Chairman, I think that is sufficient. Thank you very much.

SPECTER: Thank you very much, Senator Feingold.

We are on course to finish you before lunch time, Judge Alito. We have more potential questions from the Republican side, and we have two more Democratic side.

Senator DeWine, do you have any questions?

DEWINE: Mr. Chairman, I'll reserve my time.

SPECTER: Senator DeWine reserves his time.

SPECTER: Senator Schumer, you're recognized for up to 25 minutes.

SCHUMER: Thank you, Mr. Chairman.

SPECTER: With our conversation that you're going to ask new questions...

SCHUMER: That's what I want ask. But...

LEAHY: It's a new day.

(LAUGHTER)

SCHUMER: But I think some of my old questions, the ones I've asked before, should bother you. They bother me.

But, in any case, I do have a few other issues that I do want to talk to you about. But, first, there's just a general question on presidential power.

Let's just assume that it was found that the president's right to wiretap people, the way we're discussing it now in terms of the recent NSA revelations, was found constitutional.

Would there be a different standard if, say, the president -- does that necessarily allow the president to then go ahead and go into people's homes here in America, American citizens, without a warrant?

Does the one necessarily lead to the other?

ALITO: I would have to understand -- I would have to see the ground for holding the wiretapping or the electronic surveillance constitutional before seeing whether it would apply in the case of other searches and seizures.

SCHUMER: But let's assume it is constitutional.

ALITO: I'd have to know what the arguments were made about it and on what ground was found to be constitutional.

SCHUMER: So, it could follow, but might not? Is that what you are saying?

ALITO: It very well might not. I would have to know the constitutional grounds for the decision relating to the wiretapping and I have no idea what that would be.

It may well not extend to things like physical searches of homes.

SCHUMER: Is there a difference? Is there a constitutional difference between a wiretap and an actual physical search of the home on Fourth Amendment grounds? Is there any that you know in the cases?

ALITO: There are differences. Yes, there are certainly are.

SCHUMER: Thank you.

ALITO: General criminal wiretapping is subject to all the rules that are set out in Title III, which are thought to be based in large part on Fourth Amendment requirements. And the warrant requirement is very strong in the area of electronic surveillance.

When you're talking about other types of searches, the searches can take place in a variety of places for a variety of reasons.

SCHUMER: But if it can be done under the inherent power that the president has for the one, why couldn't it be done for the other? I'm not asking about the statute.

ALITO: There's also a Fourth Amendment issue.

SCHUMER: In both cases.

ALITO: In both cases. And the Fourth Amendment could play out very differently in those two contexts.

SCHUMER: Now I'd like to go back to some of the line of questioning that Senator Durbin explored yesterday when he mentioned the crushing hand of fate: Bruce Springsteen.

Judge Alito, I assume you believe that you will be able to be fair in every case that comes before you on the Supreme Court.

ALITO: I have no reason to think I will not be. I certainly will.

SPECTER: And you don't believe that you prejudged any legal or constitutional issue?

ALITO: I don't believe that I have.

SCHUMER: And you'll take care to apply the rules of law and procedure equally and evenhandedly no matter who the parties are, prosecution or defense?

ALITO: Certainly will, yes, Senator.

SCHUMER: Employer or employee?

ALITO: I will apply the laws evenhandedly to everyone.

SCHUMER: And I take it you believe that you've done just that on the 3rd Circuit while you were there.

ALITO: I believe I have.

SCHUMER: OK.

Now, yesterday, Senator Durbin asked about Pirolli v. World Flavors, and you remember that case. You discussed it with Senator Durbin.

And the case involved the claims of a mentally retarded man who brought suit against his employer for violent and persistent sexual harassment by his coworkers.

SCHUMER: Am I right?

ALITO: Those were the claims, yes.

SCHUMER: And the majority allowed the case to proceed, finding that the court had, quote, "discretion to consider issues not raised in the brief." And they did so to give the plaintiff his day in court. You exercise your discretion to vote against giving him his day in court because his lawyer failed to raise the argument in the brief.

As you told Senator Durbin, "There is a very important principle involved in appellate practice" -- these are your words -- "I think it goes with the idea of judicial self-restraint. And that requires parties raise issues in the trial court, and that if they do not raise the issue in the trial court, then absent some extraordinary circumstances, they should not be able to raise the issue on appeal, and that was the principle there."

Those are your words. Right?

ALITO: I believe they are. Yes.

SCHUMER: OK. Now I'd like to go to two other cases that you had when you are on the 3rd Circuit. The first one is Smith v. Horn, where a similar issue arose. That was a criminal case involving a habeas corpus petition brought by a criminal defendant, right?

ALITO: Yes, it was.

SCHUMER: And it turns out that in that case as well, just like Pirolli, one of the parties had failed to raise a relevant argument in its brief, right?

ALITO: Smith v. Horn was really not comparable to Pirolli, for a very important reason. Smith v. Horn was a habeas case. And so what is involved there is not simply a dispute between private parties -- and of course disputes between private parties are very important and individual rights can dissolve...

SCHUMER: I understand it's a government case. Let me just make -- I'm going to let you answer it. I just want to make the point here so everybody can understand. The majority in Smith v. Horn to say -- this time it was the government had failed to raise the issue in the district court brief. This time you were prepared to excuse that failure. This time you felt it was appropriate to consider the issue on your own.

I am at a loss to understand the difference. I'm going to give you a chance to explain, but I want to read what the majority in Smith v. Horn had to say about your indulgence of the government for failing to bring up an issue, just as the retarded person in that case did.

They said: "Where the state has never raised the issue at all, in any court, raising the issue ourselves puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates."

SCHUMER: So as far as I can see, the legal principle and procedural rule in each case was precisely the same. The only difference being that the first was a sexual harassment plaintiff who left out an argument, and in the second it was the government who did.

In the first case, you said to that retarded individual, "Sorry, you're out of luck." In the second case, you said to the government, "I'll make your argument for you." And that doesn't seem even handed to me.

Can you explain the difference, please?

ALITO: Yes, Senator.

As I was attempting to explain a couple of minutes ago, there is an important principle called the principle of comity that is involved in habeas cases. And it goes to a critical part of our concept of federalism, and it's something that Congress itself has very strongly recognized in the habeas corpus statute.

What I'm talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.

And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don't raise it.

SCHUMER: Now, that applies to the government as well as to the defendant?

ALITO: Absolutely.

The issue of exhaustion must be considered by the federal habeas court, even if the state prosecutor does not raise the issue of exhaustion. And why did Congress say that?

Congress said that because there's something more involved here than a dispute between the state prosecutor and the habeas petitioner; there is respect for the federal system of government involved. There is respect for the state court system involved.

SCHUMER: But the majority didn't agree with you in that situation, did they?

ALITO: The majority -- but what I'm saying, Senator, is that the underlying principle of comity makes this case, makes Smith v. Warren quite different from a dispute between private parties. Now, the Supreme Court has said that it is appropriate in certain circumstances for the court to consider procedural default sua sponte, and that's what I thought we should do there.

And my position on...

SCHUMER: Let me ask you -- I understand your explanation.

SCHUMER: I'm not sure I agree with it. But let me go on to another one. This is Dillinger.

In this case, it was with a corporation. The case is Dillinger v. Caterpillar. And it's also a case where a party didn't raise an issue at trial -- won't have the same explanation as the habeas case, obviously.

They didn't raise the issue at trial or on appeal -- this time the large company didn't: Caterpillar. And the majority held that it waived, and it sided with the plaintiff who was seriously injured in the accident, right?

ALITO: I don't have a recollection of all the facts...

(CROSSTALK)

SCHUMER: OK, well, let me tell you -- maybe this'll refresh your recollection.

The majority wrote that it was not appropriate to exercise its discretion -- again it was the majority -- to excuse the defendant companies waiver when the consequence of the decision would be to deprive a seriously injured plaintiff of a trial in conformity with applicable law. That's the majority.

You dissented, with the result, had you prevailed, that the accident victim's case would have been over.

The majority describe your approach as follows. Quote: "There is an insurmountable procedural difficulty with Judge Alito's position. Caterpillar never advanced this argument at trial, an oversight that Judge Alito excuses on a ground that a district court decision may be affirmed on an alternative ground, though not advanced at trial."

So in the Dillinger case, you also thought it was appropriate to use your discretion to excuse Caterpillar, isn't that right?

ALITO: Well, I'd have to refresh my recollection about exactly what was involved in the case.

SCHUMER: Can you explain the difference between the two for us; why in one case it was OK and why in another case it wasn't?

ALITO: Senator, I'd have to refresh my recollection of Dillinger.

But what you've just mentioned relates to the principle that it is appropriate for an appellate court to affirm a decision of a lower court on an alternative ground when the basis for that is apparent from the record of the case.

So if the facts -- if it's a purely legal issue, for example, and you're talking about whether you're going to affirm or whether you're going to reverse...

SCHUMER: But was that the case in Dillinger?

ALITO: Well, without refreshing my recollection, I wouldn't be able to say.

SCHUMER: Oh, OK.

ALITO: But what you read to me...

SCHUMER: I would posit to you that, again, it was an example of your seeming to have more sympathy for a certain type of plaintiff than another.


CQ Transcriptions
Thursday, January 12, 2006; 1:46 PM

The transcript picks up with the testimony of Sen. Jeff Sessions. Return to Part I by clicking here.

SPECTER: Senator Sessions, do you have any questions?

SESSIONS: Just a few. I would just respond to Senator Schumer and Senator Kennedy, and would note that that's not what the ABA has concluded. They've interviewed 300 of your colleagues, judges and lawyers who practice before you and against you, and they rate you the highest possible rating. They don't see you as an extremist, out of the mainstream or otherwise.

And I also want to thank your family for their patience in going through all of this and listening to those of us on this side as we expostulate on all sorts of things.

And I see your sister back there, in your own right a nationally known attorney.

Rosemary, it's good to see you here.

I understand you were debate partners in high school. It must have been an interesting household to have two prominent lawyers growing up.

So I'll ask you how that was and who was the best debater.

(LAUGHTER)

ALITO: Well, I'll take the Fifth Amendment on the second part of the question.

(LAUGHTER)

But it structured our arguments. So instead of arguing about things at home, we would argue about the issues that we were debating.

My wife insists that we actually argued a debate in front of her class. We didn't know each other at all at the time and didn't meet actually for many, many years later. But we did have a debate at her high school, which was about 20 miles away, and she insists she remembers seeing us debating in front of her French class.

SESSIONS: Well, it must have been an interesting thing. Apparently, your colleagues in school there were impressed.

SESSIONS: They predicted you would serve on the Supreme Court one day. And I think that's going to turn out to be a good prediction.

I would point out, Judge Alito, that you've been asked a lot about separation of powers, FISA act and those kind of things. This Congress has not clarified its position yet. As a judge, if some of these issues were to come before you involving congressional power or something, you would expect the Congress to have formulated its position first, would you not?

ALITO: That would certainly be very helpful.

These are very momentous issues and they're difficult issues and they have just come to the surface in the last few weeks. I couldn't begin to say how I would decide any of these issues without going through the whole judicial decision-making process. I think it would be the height of irresponsibility for me to try to do that.

SESSIONS: I would agree.

The chairman is going to be having hearings within a few weeks here to discuss many of these issues. And it's something that every senator will be engaged in, whether they desire to or not. And we'll have to think these important issues through. And I don't think they're ripe yet for a decision, that's for sure.

I would also note that, with regard to Justice Jackson's position on the president and his war-making powers and the question of when he is a high position and a lower ebb position, Chief Justice Rehnquist discussed that idea in Dames & Moore v. Reagan and, in fact, pointed out that that doesn't completely answer the question, those answers are not black and white, and that there's a spectrum running from explicit congressional authorization to explicit congressional prohibition.

SESSIONS: So there are many factors that must be considered, would you not agree, as you analyze those matters?

ALITO: Yes. You have to know the specifics of the situation.

SESSIONS: On the question of jurisdiction of the Supreme Court and whether Congress has the power to contain it in some way, it does appear there's language in the Constitution that indicates that, as you said yesterday. It's there.

My question to you is: Do you believe that the three branches of government owe it to our country and to our constituents to stay within our bounds and to avoid a constitutional confrontation, a constitutional crisis?

Isn't it better that if the courts to restrain themselves, that Congress would restrain itself and not go forward to an ultimate confrontation of those issues?

ALITO: It certainly is.

The issue of the ability of Congress to take away the Supreme Court's jurisdiction over a particular subject of cases is not something that I have previously addressed in writings, unlike a lot of previous nominees who had addressed that, and therefore, I think, felt that they were freer to discuss that when they came before the committee.

That's not something I've ever addressed in any writing, nor is it something that I've studied, other than to read some of the authorities who have addressed the question.

I did mention that I had given a speech expressing the idea that I thought that it was not a good policy idea. I can understand the motivation, but I don't think that it's good, as a matter of policy, to proceed in that fashion.

And I don't know what the argument would be, as I sit here, in favor of taking away jurisdiction over an entire class of cases. That would raise some serious constitutional questions.

SESSIONS: I would just say to you: I think we ought not to confront that question if we can avoid it. And that's why I have not joined in legislation, some of which has been filed in this Congress, to take jurisdiction away.

SESSIONS: But I do believe that is some power that's been given to the Congress; hopefully will not have to be used, hopefully that sword will never be drawn because the court will show restraint and remain within the constitutional powers that they have.

With regard to the unitary executive, there are just three branches of government in our Constitution. That's correct, is it not?

ALITO: That's all I see in it.

(LAUGHTER)

SESSIONS: Well, does every agency and department have to be within one or the other?

ALITO: I think they do.

That doesn't say that they can't be structured in ways that differ from each other depending on their function. And that doesn't address the issue of the separate issues of appointment or removal or whether -- well, let me just leave it there with appointment and removal.

But I think that the Constitution sets up three branches and everything has to be within one of those branches.

SESSIONS: One of the things that I learned as United States attorney is these agencies think they're independent entities. They think they're almost like nations. When they get together -- you probably had this experience -- they sign memorandums of understanding. Wouldn't you agree they sometimes look awfully like treaties?

ALITO: Yes, they do look like treaties between federal law- enforcement agencies and state law-enforcement agencies.

SESSIONS: But, of course, the federal government is one. They can't take two positions in a lawsuit, that's for certain.

With regard to interstate commerce, there is a limit to that, to the power of the government, I believe. In the Hobbs Act, in the racketeering act that Senator Schumer mentioned, doesn't it say within those acts that the extortion or the pattern of racketeering has to affect interstate commerce and that is an element the prosecutor must prove before a conviction can be obtained?

ALITO: Yes, that's right.

And the federal criminal statutes that I'm familiar with, almost without exception, have jurisdictional elements in them. That's the traditional way of casting them.

ALITO: There are a few areas where that's not feasible, such as drugs, but most of the statutes have jurisdictional elements right in them.

SESSIONS: And that's basically the Lopez holding, was it not? And in your opinion in Rybar, you specifically said all the Congress needed to do was to put in an interstate commerce nexus that would be proved to the jury, which -- I agree with you, having prosecuted hundreds of drug cases -- it's not ever been a problem in those cases to prove.

That would have solved the problem, isn't that correct?

ALITO: That's right. In firearms cases, that's just not a problem.

SESSIONS: Well, I think you've testified extremely well here. You have been most forthcoming. I disagree with the recent comment that you haven't been forthcoming.

I would say, and I think Senator Biden indicated, that we have not had a witness more forthcoming, more willing to discuss the issues than you have.

Thank you.

SPECTER: Make you, Senator Sessions.

I thought we were going to get to that light at the end of the tunnel before 1:00. It looks like we're going to be a little later than that. But we don't want to take a break now, so to the extent we could move ahead rapidly, it would be appreciated.

Senator Durbin, you had originally asked for 10 minutes, but I understand you want more time. How much would you like?

DURBIN: Senator, I will do it as close to 10 minutes as I can. But I might need a few extra; I want to reach the end of that same tunnel.

SPECTER: Let's set the clock at 10 with flexibility to exceed that.

DURBIN: Thank you very much.

Thank you, Judge Alito. Thanks to your family for putting up with this endurance test. And I appreciate your patience throughout.

First, let me address the issue of court stripping that was mentioned by my friend from the state of Alabama. I really hope that Congress will never draw that sword. We heard about it during the Schiavo case.

If we're going to have a truly independent judiciary, the thought that Congress will take away from the courts issues which we disagree with would really jeopardize it. And just editorializing, I hope we don't reach that point.

After you leave today, there will be a panel come before us of your colleagues on the bench from the 3rd Circuit. Was this your idea that they come and testify?

ALITO: No, it was not.

DURBIN: Were you asked if it was a good idea?

ALITO: No, I was not.

DURBIN: OK.

I understand it's never happened before, and that's why I asked you that question. I don't know who came up with this notion, but it does raise some interesting questions, which we've shared on a bipartisan basis about that testimony. But since you weren't involved in that decision-making, I'll drop it at that.

DURBIN: Then there will come some public witnesses. And one of those witnesses will raise a contrast between two decisions you made. And I'm going to give you a chance now to respond to that charge or that observation that will be made.

Fourth Amendment cases: one we've talked about a lot, Doe v. Groody; another we've talked about I think tangentially, which involves Leveto. I hope I'm pronouncing that correctly.

ALITO: Leveto; I'm not sure what the pronunciation is there.

DURBIN: Do you know which case I'm concerned with?

ALITO: Yes, I do.

DURBIN: In the Leveto case, a veterinarian and his wife, subject to Internal Revenue Service agents coming at 6:30 in the morning, detaining him, patting him down in the Internal Revenue Service investigation, holding him for six hours in his office.

Then they went to his home, found his wife in her nightgown, patted her down, held her incommunicado for a period of time.

And they brought a civil suit and said, "The government went too far. They didn't have the authority to do those things, to pat us down and search."

And your conclusion, writing the majority opinion, was, "Yes, they did go too far." There was a question about immunity, which I won't touch on, but at least from the Fourth Amendment point of view, you said that the government went too far.

Now, of course, the notorious case that's come up time and again of Doe v. Groody. In that case, of course, it's about a year earlier. There's a search of the premises and a John Doe search warrant looking for someone who might have been involved in drug dealing.

An affidavit attached to the warrant says that it could also involve persons on the premises who may be hiding drugs, but the affidavit is not part of the search warrant; it's maybe incorporated in general terms.

The majority of the court says that it was not incorporated; Judge Chertoff writing for the majority. Particularly egregious is the fact that a mother and her 10-year-old daughter were strip- searched pursuant to that search warrant.

In that case, you concluded that that was warranted, that was acceptable search.

The witness who comes before us is going to say, "Judge, how can you do this? You have a veterinarian here and his wife, IRS search. In their case, you said, 'They went too far when they patted them down and searched them.' The next case, involving a 10-year-old girl in a strip-search, you say, 'They didn't go too far.' How would you compare the two and draw the distinction between them?"

ALITO: Well, the Leveto case involved the issue of how long they could detain people who were present on the premises while they executed a search of the premises. And they detained these people for a very long time. I don't remember...

DURBIN: Six hours or more.

ALITO: It maybe even have been longer. It was a very long period of time.

There was no warrant for their arrest. There was no claim that there was a justification to seize them, other than the fact that they were present on the premises at the time when the search was being executed.

The Doe v. Groody case involved the question of the interpretation of a warrant.

ALITO: And the standard that is to be applied there -- the Supreme Court has told us -- is a practical, common-sense instruction. A warrant is not to be interpreted like a sophisticated commercial instrument that's drafted by parties.

The facts were -- you mentioned many of them -- that the affidavit prepared by the police officer said, "We have probable cause to search anybody who's found on the premises because we have probable cause to believe that this drug dealer will hide drugs on the people on the premises."

And they presented that to the magistrate and the magistrate issued the warrant, attached the affidavit to the warrant, and said, "The warrant is incorporated for" -- and I guess I left out the important fact that the officers -- they said, "We have probable cause to search anybody on the premises and that's what we want. We want authorization to search anybody on the premises."

And the magistrate granted the warrant and attached the affidavit to the warrant and said, "The affidavit is incorporated for the purpose of probable cause," which meant that the magistrate found that there was probable cause to search anybody on the premises.

But in the portion of the warrant where it said "person to be searched," it only mentioned...

DURBIN: John Doe?

ALITO: ... the John Doe. Now, if this were a bond, I think you would conclude that the only person you can search is John Doe. But it's a warrant.

And my view was that, viewing this from a practical standpoint, when the magistrate said, "Yes, you're right, there's probable cause to search anybody on the premises," those are the people he's saying can be searched.

But even if one didn't agree with that, you would go on to the qualified immunity question and say, "Could a reasonable police officer who says, 'I've got probable cause to search anybody who's on the premises and that's what I want,' and you go to the magistrate and the magistrate says, 'I agree with you on probable cause and here's your warrant,' could they reasonably think that the magistrate is saying, 'Yes, search anybody on the premises?'"

DURBIN: So did it go into your thinking this whole question of the dignity of the individual; that we are, in fact, dealing with a mother and a 10-year-old daughter who were subjected to the most intrusive search? Was that part of your thinking in terms of coming down in the minority position and saying it was all right to go ahead with the search? Did you consider that calculation?

ALITO: I was concerned about the fact they a minor had been searched, and I mentioned that in my opinion. And that's something that's very unfortunate.

But the issue in the case was not whether there was some sort of rule that minors cannot be searched. That's not part of Fourth Amendment law as I understand it. And there would be a very bad consequence if that were the rule, because where would drug dealers hide their drugs? Minors would then become -- they would become the repository of the drugs and firearms.

DURBIN: Or the issuing authority may be more specific in the warrant, which, as I understand it, is what the Fourth Amendment's all about.

ALITO: Well, the warrant here certainly could have been drafted better.

DURBIN: I think that's what the majority said.

ALITO: It is, but we have to take into account that these are police officers operating under time pressure. And the Supreme Court has told us that we are not to read these warrants like they're complicated commercial documents. We're trying to get at the practicalities of the situation.

DURBIN: I only have a few minutes, and I will try my best to end it, but I don't think I can do it in two.

In our circuit in Chicago, Judge Richard Posner is a very prolific writer about many things. He recently made an observation which I think really is a challenge to all us on the Senate Judiciary Committee.

We currently have a situation involving immigration cases, particularly those involving asylum and deportation, that we have to look at very seriously. There was an effort to clear the backlog when Attorney General Ashcroft was in charge and some procedures were changed to streamline the process, and a lot of these cases were just churned out very quickly with very little evidence as to why decisions were being made.

DURBIN: Judge Posner made that point recently, publicly stating, if I might quote him, "The adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice," he said.

Now, you've been involved in some of these cases: about eight of them as we calculate here. There's been a dramatic increase in the number of these cases coming to the federal appeals courts.

In one particular case here, the Saidou Dia case, which involved the deportation of a man back to Guinea, was a case where he refused to serve in the military. His wife was then confronted in his home country at his home. When they couldn't find him, they beat her, raped her and burned down his home. And this was a man who said, "I don't want to go back because I think it could be a dangerous circumstance for me."

In this case, you dissented and said, "Return him to Guinea," that you didn't feel that there was a strong enough case to grant him asylum in the United States and to stay.

And the reason I raise it is we looked at your record in these cases where there was a split decision. And we discovered that you ruled for the government in eight out of nine cases where there was a split decision on these questions. And in seven of those eight cases that you ruled in this, yours was the minority position.

So my question to you is: Do you appreciate the observation made by Judge Posner about the terrible state of affairs when it comes to the immigration judges and the decisions they're sending for you to review?

And why did you, more or less consistently, in those contested cases, consistently rule on the government side?

ALITO: Well, Senator, I think I have ruled in favor of asylum- seekers in a number of cases.

DURBIN: Those are usually no dissents in those cases.

ALITO: Well, I know that I've ruled in favor of asylum-seekers in quite a number of cases. I don't have the list on the tip of my tongue.

In the Dia case that you mentioned, the facts that you recited were not the facts that were found by the immigration judge. Those were the facts that the asylum-seeker alleged. And the whole issue in the case was whether there was sufficient evidence to support the contrary finding of the immigration judge.

I agree with Judge Posner that the way these cases are handled leaves an enormous amount to be desired. I have been troubled by this. My court has been troubled by this.

But my situation as a court of appeals judge before whom these cases come is created by the legal framework that Congress has created. And Congress has given us a very limited role in reviewing factual findings by immigration judges.

ALITO: What Congress has said is that we have to accept factual findings by the immigration judge unless no reasonable fact finder could come to a contrary conclusion. And that's a tough standard. And I have tried to adhere faithfully to that standard in all the cases that come before, even if I felt that I might have reached a different conclusion on the record.

DURBIN: Judge, wouldn't you concede there are basically two standards that are being debated here? One is you just referred to, no reasonable adjudicator would have come to a different conclusion. The other talks about substantial evidence. And you have followed that second standard, the substantial evidence case, in Lu v. Ashcroft and Zhang v. Gonzales. So you've leaned toward it.

My point I want to get to, and this will be the last thing I ask you, is if we know the system's broken, if we know that it doesn't give basic fairness and justice, do you not feel at your level that you have to be more sensitive to the fact that there are people's lives at stake here and that you have to take care when they're asking for asylum and protection in the United States not to let this broken system work to their detriment?

ALITO: We do have to keep in mind just what's at stake, and I do that. I know that a lot is at stake in these cases. And I read the record to see if there is support for the arguments that are made by these petitioners.

But I have no way of supplementing the record. And there are serious problems. One of the most serious problems, I think, is that the witnesses, the asylum seekers generally testify in another language. Sometimes it's a language that is not well represented in the population in the United States, so it may be difficult to get a translator. And the quality of the transcripts is often very poor, which makes it very difficult to understand what was going on before the immigration judge.

Now, there have been cases where we've said the transcript here is so bad that we can't make a decision on this, and we will send it back.

There's the additional problem that the immigration judges are forced to forced to make credibility determinations based on viewing someone who comes from a different culture, where mannerisms, gestures, facial expressions may mean something different than they do in our culture.

ALITO: And I'm aware of that. But these are bigger problems. These are problems for Congress to address. They're not problems that I can address in the context of deciding these particular cases.

DURBIN: Thank you. I agree. And I thank you very much.

And I finished under 15 minutes, Mr. Chairman.

SPECTER: Thank you very much, Senator Durbin. That's appreciated.

Senator Graham?

No comments. Wonderful.

Senator Cornyn?

CORNYN: I yield back my time.

SPECTER: Doubly wonderful. We're going to be going into executive session when we finish, which will be just in a few moments and we've attempted to notify all senators -- those not here -- through staff. And the purpose is to discuss in private any questions anybody may have in mind as to Judge Alito.

It doesn't suggest anything of substance, but we've adopted this practice since Justice Breyer's proceeding and do it as a matter of routine so that if there is something, by going into executive session, we do not signal that there is something. And going into executive session does not mean that there is something or that there is nothing, but it is routine.

As I explained it, I'm not quite sure why we do it, but we do it.

(LAUGHTER)

And it doesn't take long if you do it before lunch.

(LAUGHTER)

Some suggest we do it after lunch, and let me tell you, it'd be a long session. But we're going to do it before lunch and we're going to do it in the committee hearing room which has been swept -- another unnecessary item because there's nothing to say in there. But that's our procedure.

Now I yield to my distinguished ranking member, Senator Leahy.

LEAHY: Thank you.

And just briefly, Mr. Chairman, you have been so courteous on this, I hate to even take this time by saying this. I want to make sure Judge Alito is here.

When we started this, I actually started the same subject I started with then Judge John Roberts, now chief justice. It's on the question of presidential power and whether he appreciates the role of the Supreme Court as a check and balance.

LEAHY: As you know, I voted for him. And that is a leap of faith because nobody makes commitments exactly how they're going to vote in one case or another.

In this case, it's been pointed out you're going to replace Justice Sandra Day O'Connor; actually, additionally, Chief Justice Roberts was nominated for that.

Then Harriet Miers was nominated. The president was forced, by concerns within his own party, to withdraw her.

He then nominated you very briefly after you had been -- well, you had been interviewed once at the beginning of his term, but then you were interviewed again by Vice President Cheney and Karl Rove, Scooter Libby and I think a few others.

And that's why I worry. I just want to make sure, in my own mind, that you would stand as a check and balance for this president or any president.

I know you're concerned. You expressed in the year 2000 -- you criticized independent counsel law. So many times in the questions I've raised it's because I was afraid you would not act as a check and balance.

We have a government that is getting more and more powerful and, in the electronic age, especially powerful. We see illegal spying on Americans by Americans.

LEAHY: All of us agree the president is not above the law, any more than you are or I am. But it takes more than that, especially if we're giving the president the power unilaterally to redefine the law, an issue that's going to eventually come before you.

Those are my concerns. I wanted you to know that what my concerns are. They go beyond -- anything what the other issues raised by senators, Senator Specter or other senators; legitimate issues that those are. But those are mine, and I wanted to say that to you personally.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Leahy.

We're about to excuse you from any further participation in these proceedings, Judge Alito.

I've been handed statistics which show that you've been questioned for about 18 hours, the number of questions approximating some 700. And some differences of opinion as to the comprehensiveness of your responses, but the senators are entitled to their own views.

And you'll be hearing more when we conclude the hearings and later go into executive session for the committee to vote. And further on floor debate.

SPECTER: But you've certainly demonstrated remarkable patience -- I think everybody would agree with that -- and remarkable stamina, and a very loyal family, led by your wife.

And we thank you for your public service. And you may be assured that the committee, on both sides, and all of the balance of our 100 senators will give very, very careful consideration to the president's nomination of you for the Supreme Court.

We will recess now, and we will resume at -- it's uncertain how long our session will be, so we'll resume at 2:30. And we will begin with a report from the American Bar Association, and then we'll move to witnesses from the Court of Appeals for the 3rd Circuit.

LEAHY: But now we're going to the closed session.

SPECTER: But now we're going to the committee hearing room, Dirksen 226, for an executive session.

Testimony from Outside Witnesses

WITNESSES:

U.S. REPRESENTATIVE CHARLES GONZALES (D-TX)

U.S. REPRESENTATIVE DEBBIE WASSERMAN SCHULTZ (D-FL)

STEPHEN TOBER,

CHAIRMAN,

AMERICAN BAR ASSOCIATION (ABA) STANDING COMMITTEE

ON THE FEDERAL JUDICIARY

MARNA TUCKER,

ABA D.C. CIRCUIT REPRESENTATIVE

JOHN PAYTON,

ABA FEDERAL CIRCUIT REPRESENTATIVE

EDWARD BAKER,

JUDGE,

U.S. COURT OF APPEALS

ANTHONY SCIRICA,

CHIEF JUDGE OF THE U.S. COURT OF APPEALS

FOR THE 3RD CIRCUIT

MARYANN BERRY,

JUDGE,

U.S. COURT OF APPEALS

RUGGERI ALDISERT,

JUDGE,

U.S. COURT OF APPEALS

LEONARD GARTH,

JUDGE,

U.S. COURT OF APPEALS

JOHN GIBBONS,

RETIRED U.S. COURT OF APPEALS JUDGE

TIMOTHY LEWIS,

RETIRED U.S. COURT OF APPEALS JUDGE

CHARLES FRIED,

FORMER U.S. SOLICITOR GENERAL,

1985-89,

PROFESSOR OF LAW,

HARVARD LAW SCHOOL

ANTHONY KRONMAN,

PROFESSOR OF LAW,

FORMER DEAN,

YALE LAW SCHOOL,

NORA DEMLEITNER,

FORMER CLERK TO JUDGE ALITO,

PROFESSOR OF LAW,

HOFSTRA UNIVERSITY SCHOOL OF LAW

ERWIN CHEMERINSKY,

PROFESSOR OF LAW,

PROFESSOR OF POLITICAL SCIENCE,

DUKE UNIVERSITY LAW SCHOOL

MICHAEL GERHARDT,

PROFESSOR OF CONSTITUTIONAL LAW,

UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW

SAMUEL ISSACHAROFF,

PROFESSOR OF CONSTITUTIONAL LAW,

NEW YORK UNIVERSITY SCHOOL OF LAW

GOODWIN LIU,

ASSISTANT PROFESSOR OF LAW,

UNIVERSITY OF CALIFORNIA, BERKELEY,

BOALT HALL

BETH NOLAN,

PARTNER,

CROWELL & MORING LLP LITIGATION GROUP

LAURENCE TRIBE,

PROFESSOR,

HARVARD UNIVERSITY,

PROFESSOR OF CONSTITUTIONAL LAW,

HARVARD LAW SCHOOL

REGINALD TURNER,

PRESIDENT,

NATIONAL BAR ASSOCIATION

FRED GRAY,

FORMER CIVIL RIGHTS ATTORNEY

SENIOR PARTNER,

GRAY, LANGFORD, SAPP, MCGOWAN, GRAY & NATHANSON,

KATE MICHELMAN,

FORMER PRESIDENT OF THE NATIONAL ABORTION AND

REPRODUCTIVE RIGHTS ACTION LEAGUE

PRO-CHOICE AMERICA

RONALD SULLIVAN,

ASSOCIATE CLINICAL PROFESSOR OF LAW,

SUPERVISING ATTORNEY,

YALE LAW SCHOOL

AMANDA FROST,

ASSISTANT PROFESSOR OF LAW,

AMERICAN UNIVERSITY'S WASHINGTON COLLEGE OF LAW

JOHN FLYM,

FORMER PROFESSOR OF LAW,

NORTHEASTERN UNIVERSITY SCHOOL OF LAW

STEPHEN DUJACK,

FREELANCE WRITER,

EDITOR,

ENVIRONMENTAL FORUM

PETER KIRSANOW,

COMMISSIONER,

U.S. COMMISSION ON CIVIL RIGHTS

CATHY FLEMING,

PRESIDENT ELECT,

NATIONAL ASSOCIATION OF WOMEN LAWYERS

CARTER PHILLIPS,

MANAGING PARTNER,

SIDLEY AUSTIN LLP

KATE PRINGLE,

FORMER ALITO CLERK,

PARTNER,

FRIEDMAN,KAPLAN, SEILER AND ADELMAN LLP

JACK WHITE,

FORMER ALITO CLERK,

ASSOCIATE,

KIRKLAND AND ELLIS LLP

THEODORE SHAW,

PRESIDENT,

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND

[*]

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

After our morning session, the committee met in executive session and reviewed confidential data on the background of Judge Alito. And it was all found to be in order.

We're now proceeding with the witnesses, the tradition of the outside witnesses, the independent witnesses. The tradition is to hear first from the American Bar Association and their evaluation of the judicial nominee.

We have structured this portion of our hearing differently from what had been done prior to last year, and that is where the majority took most of the outside witnesses. The tradition has been to have 30 witnesses and the majority party had taken 18 and the minority party 12. And it seemed that it would be more appropriate to have an even split, 15 and 15, and that is the practice we are following. And, of course, the ABA representatives are not witnesses called by either Democrats or Republicans.

And we have really done our best to proceed in a nonpolitical way in the selection of a Supreme Court justice. There can be different evaluations as to how successful we are in that, but that has been our effort.

We have limited testimony to five minutes for outside witnesses. The next witness already nods in agreement. He was here not too long ago for Chief Justice Roberts.

And we have established the five-minute rule because we have 31 witnesses.

SPECTER: And the Senate is not in session and all the members of the committee have other commitments. And it is projected that we will finish today, but we'll have to keep on schedule.

We turn now to the American Bar Association panel. And we welcome Mr. Steve Tober, Ms. Marna Tucker and Mr. John Payton.

In accordance with the practice, the testimony will be given by Mr. Tober, who is the chairman of the American Bar Association Standing Committee on the Federal Judiciary. He's an attorney with the law firm bearing his name; experienced in civil litigation, professional negligence and domestic relations; undergraduate and law degree from Syracuse University; of the board of the Law Review; deeply involved in New Hampshire and New England legal communities; former chairman of the committee to redraft New Hampshire's rule on professional conduct.

We know the laborious job involved, Mr. Tober, which you're about to describe in reaching evaluation of a Supreme Court nominee and the importance of your judgments. So we thank you and Mr. Payton and Ms. Tucker for your public service.

Now, Mr. Tober, the floor is yours.

TOBER: Thank you, Your Honor.

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

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

I am, indeed, joined today by Marna Tucker, our D.C. circuit representative, and by John Payton, our federal circuit representative.

For well over 50 years, the ABA Standing Committee has provided a unique and comprehensive examination of the professional qualifications of candidates for the federal bench. It is composed of 15 distinguished lawyers who represent every judicial circuit in the United States and who annually volunteer hundreds of hours of public service.

TOBER: Our committee conducts a thorough, nonpartisan, non- ideological peer review using well-established standards that measure a nominee's integrity, professional competence and judicial temperament.

With respect to a nomination to the United States Supreme Court, the standing committee's investigation is based upon the premise that such a nominee must possess exceptional professional qualifications. The significance, range and complexity of issues that will be confronted on that court demands no less.

As such, our investigation of a Supreme Court nominee is more extensive and is procedurally different from others in two principal ways.

First, all circuit members on the standing committee reach out to a wide range of individuals within their respective circuits who are most likely to have information regarding the nominee's professional qualifications.

And second, reading groups of scholars and distinguished practitioners have formed to review the nominee's legal writings and advise the standing committee.

The reading groups assist in evaluating the nominee's analytical skills, knowledge of the law, application of the facts to the law, and the ability to communicate effectively.

In the case of Judge Alito, circuit members combined to contact well over 2,000 individuals throughout this nation. Those contacts cut across virtually every demographic consideration and it included judges, lawyers and members of the general community.

Thereafter, circuit members interviewed more than 300 people who knew, had worked with, or had substantial knowledge of the nominee.

All interviews regarding the nominee were fully confidential to assure the most candid of assessments.

Judge Alito has created a substantial written record over his years of public service. Our three reading groups worked collaboratively to read and evaluate nearly 350 of his published opinions, several dozen of his unpublished opinions, a number of his Supreme Court oral argument transcripts and corresponding briefs, and other articles and legal memos.

TOBER: The academic reading groups were composed of distinguished faculty from the Syracuse University College of Law and from the Georgetown University Law Center.

The practitioners group was composed of nationally recognized lawyers intimately familiar with demands of appellate practice at the highest level.

Finally, as we do in any standing committee investigation, a personal interview was conducted with this nominee. Judge Alito met with the three of us on December 12th and he provided us a full opportunity to review matters with him in detail.

After the comprehensive investigation was completed, the findings were assembled into a detailed confidential report. Each member of the standing committee reviewed that final report thoroughly and individually evaluated that nominee using three rating categories: well-qualified, qualified and not qualified.

Needless to say, to merit a evaluation of well-qualified, the nominee must possess professional qualifications and achievements of the highest standing.

During our investigation, questions were raised concerning the nominee's recusal practice and also concerning some aspects of his judicial temperament. We have carefully reviewed and resolved those questions to our satisfaction as we have detailed in our accompanying correspondence to your committee which, Mr. Chairman, we ask to be made part of this record.

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

TOBER: Thank you, sir.

We are ultimately persuaded that Judge Alito has, throughout his 15 years on the federal bench, established a record of both proper judicial conduct and even-handed application in seeking to do what is fundamentally fair.

As such, on the basis of its comprehensive investigation and with one recusal, the standing committee unanimously concluded that Judge Samuel A. Alito Jr. is well qualified to serve as associate justice on the United States Supreme Court.

TOBER: His integrity, his professional competence and his judicial temperament are, indeed, found to be of the highest standard.

Mr. Chairman, let me say once again what we noted here back in September. The goal of the ABA Standing Committee has always been and remains in concert with the goal of your committee: to assure a qualified and independent judiciary for the American people.

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

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

TOBER: I worked on that, sir.

(LAUGHTER)

SPECTER: That quality of yours would recommend you for a Supreme Court argument where Chief Justice Rehnquist stopped the speaker in mid-sentence.

A word from Judge Becker, who will testify later. He was looking for an opportunity -- he stopped me in mid-sentence one day. He was looking for an opportunity to stop the speaker in the middle of the word "if." I didn't give him that chance.

(LAUGHTER)

Before proceeding to questions, I want to yield to Senator Leahy to see if he has any opening comments that he wants to make.

LEAHY: I don't, Mr. Chairman. I don't. Thank you, though.

SPECTER: We have five-minute rounds for each of the members of the committee.

Mr. Tober, picking up on your testimony that you found Judge Alito to have even-handed application of the law, how would you amplify that with respect to what kind of materials you looked at, what your evaluation was and what led you to that conclusion?

TOBER: Be happy to, Mr. Chairman.

The conclusion was reached in large measure in interviews with, as I said, well over 300 individuals around this country, over 130 of whom were federal judges, many were state judges, many were colleagues, co-counsel, opposing counsel, who almost uniformly talked in terms of his evenhandedness, of his open-mindedness, of his willingness to be fair. He's called "a judge's judge" more than once in those interviews.

When we interviewed him, we had questions that would have been on that issue. And we discussed that issue with him, to get his own personal perspective on it. We were satisfied with what we heard at that time.

And perhaps it's best reflected in his writings, which, again, I indicated the body of that work was read by our three reading groups collaboratively. And the conclusion that was reached, if you will, the overarching conclusion that was reached, is that this is a judge who brings pragmatic skills to his decision-making.

We discussed that with him in that interview that we had on December 12th. He tries to do what he thinks is right with respect to the application of the law that's before him. He took us through how he analyzes that approach, up to the point that when he is just about ready to release his decision, he looks back once again at the law to make sure he hasn't misapprehended something in the first instance; and secondly, to make sure that the outcome is fair.

That, to me, suggests...

SPECTER: So he came back to you twice?

TOBER: I'm sorry?

SPECTER: Was your testimony that he came back to you? What did you mean he came back and took another look?

TOBER: He would look at his draft opinion, Mr. Chairman, before it would be issued. And he would look back at the law that he was applying in that opinion and the outcome that was occurring in that opinion, just to justify in his mind one more time that the outcome would be fair.

SPECTER: Did your group study all of his opinions?

TOBER: The reading groups read 350 of his published opinions, scores of his unpublished opinions, and other materials, yes.

SPECTER: And did they make any analysis?

An issue has been raised as to whether Judge Alito unduly favored the powerful or the government. Did your ABA analysis reach that issue?

TOBER: That issue is one that we looked at. And we discuss it in our letter of evaluation. And I gave some examples of the some of the disparate results that we were told about.

TOBER: One of the reading groups reported to us that they could not reach a full conclusion on whether or not there was some attempt to favor one outcome for a group of litigants over another. And while there were a couple of members in a couple other reading groups that may have said the same thing in so many words, there were a significant number of other individuals in the reading groups who said they couldn't find any such evidence of that. It was inconclusive with respect to the reading groups.

What was of interest in the reading group reports to us was a comment that was echoed by others, which is that in looking for a sense of partiality in the opinions, the conclusion that was left very often was one of pragmatism.

SPECTER: Let me interrupt you, because my time is almost up, to ask you to clarify. What was inconclusive in your studies?

TOBER: It was inconclusive whether or not there were certain categories of parties who might have come out at the wrong end of Judge Alito's opinions.

SPECTER: Did some of those readers find that he was impartial and some find the contrary?

TOBER: My understanding is it was inconclusive. We did not receive any clarion call at one point that he was representing or suggesting to have a bias against any particular group of litigants before him.

SPECTER: Considerable amount of attention has been paid in these hearings to the recusal issue of Vanguard. Would you comment on what your committee found there?

TOBER: I'm going to defer to Mr. Payton who took the lead on the Vanguard-related issues, if that is OK with the chairman.

SPECTER: Mr. Payton?

PAYTON: We certainly looked into all of the recusal issues. We asked Judge Alito in some detail about how the Vanguard and the other recusal issues came about.

But let me put this in some context which I think will be helpful. In the materials that Judge Alito submitted to this committee, he attached a list of all of the cases from which he had been recused over his 15-year tenure. And that is 40 pages long with about 30 to 35 cases per page. It's well over 1,000 cases from which he was recused.

Among those cases that he was recused from were cases involving Vanguard in 1992, cases involving his sister's law firm throughout the tenure, cases involving U.S. attorney's office throughout the tenure, cases involving the other entities that he had identified in his representation to this committee back in 1990.

A few cases, in fact, slipped through. And that has been the subject of our inquiries and some of the testimony before this committee.

PAYTON: We asked him how that came about. He explained how he thought it came about. But I think it's fair to say he was not certain how they slipped through -- whether it was through the screen, whether it was because they were pro se cases.

In the end, he did acknowledge that it was his responsibility that a mistake and error had been made. Those cases should have been caught and he should have not heard those cases.

We listened quite carefully to all of that. And in the context in which we understood how this came about, we accepted his explanation that he simply had made a mistake. These cases should not have slipped through the screen just like the other thousand or so cases that were captured by the screen and the process, but they did; they shouldn't have. And we think that did not reflect in any significant degree on his integrity.

Let me tell you something else we did that goes to both of your questions, Mr. Chairman. We also interviewed an incredibly broad array of judges -- virtually all of the members of the 3rd Circuit, virtually all of the district judges that were in New Jersey and were in Philadelphia. We interviewed a number of the other judges in the 3rd Circuit who were on the district court who had contact with Judge Alito.

PAYTON: And what we learned from them almost unanimously was that he is held in incredibly high regard with respect to the issues that this committee, the ABA's committee, looks at: his integrity, his judicial competence and his judicial temperament.

And on the issue of the recusals, everyone thought that he has the highest integrity and that these few cases that slipped through do not diminish his integrity.

SPECTER: Thank you, Mr. Payton.

The red light went on during the course of your testimony, so I will terminate and yield to my colleague Senator Leahy.

LEAHY: Just to follow up on that, on Vanguard, the only reason I even mention this, when the initial explanations was from Judge Alito and the White House after his nomination was a computer glitch had precipitated Vanguard case.

But then he answered some questions from Senator Feingold. He said in the Monga case it wasn't a computer glitch -- his failure to submit Vanguard to the clerk of the court. And he said when it came before him he was not focused.

Since your report, checking the dates here, we've learned that Judge Alito did not have Vanguard on his recusal list as far back as 1993, not withstanding the fact that in 1990 he'd given a sworn statement to the committee that he would recuse.

LEAHY: Some of that information came after your report. Would it change anything in the conclusion?

PAYTON: Like I said, from the interview with him, I'm not sure we figured out what caused these cases to slip through. I'm not sure Judge Alito knew the precise answer to that. But he did acknowledge that it was a mistake.

On what was on his standing recusal list, I don't know what was on his standing recusal list. But I just note, in the materials that were submitted to this committee, there is a 1992 entry of an entity that has the name Vanguard in it -- and it's Vanguard -- that says "recusal because on standing recusal list."

I don't know what happened in 1993. I don't know if things went on and went off. Something went wrong here. And these cases came before him. And they shouldn't have. But they are a very small number in a huge universe of cases from which he was recused.

TOBER: Senator, may I add to that very briefly?

LEAHY: Yes.

TOBER: We did not find, in the vast number of our interviews and the review with the nominee, and any other extrinsic information we could look at, any pattern of intentional effort to try and have Judge Alito impose himself in cases in which he did not belong.

We are persuaded that some errors were made, some mistakes were made. And they total up to a small handful. In the course of the numbers that he's been sitting on, and I believe Senator Hatch suggested yesterday some 4,000 or 5,000 cases have been adjudicated involving Judge Alito.

We took that into context, particularly in light of the comments from individuals who know him and work with him with respect to the ethics he brings to the position.

LEAHY: You understand, the reason it became an issue here is because it was based on a sworn statement that he'd recuse?

TOBER: Yes, sir.

LEAHY: You also looked into his open-mindedness, his commitment to equal justice. I'm just asking, in doing that -- I've never served on one of these committees that you're on -- there's been a number of studies of the judge's record -- the Knight Ridder, The Washington Post, Cass Sunstein and others. And they have concluded that he had a much more likelihood of siding against discrimination plaintiffs than other circuit judges.

Knight Ridder reviewed 311 of his published opinions, found that he seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business. And his record stood out significantly from others in the circuit.

Did this question come in on the issue of whether he was compassionate or...

TOBER: The answer is yes. We looked at that. Our reading groups looked at it for us. We discussed it with the nominee in our interview on December 12th.

We are not immune from the media stories that have been available. I suggest everybody on my committee has been watching the last three days very carefully.

We are where we started with that issue. And that is over 300 people we spoke with who know this person as a judge, as an individual, are convinced that he has an open mind; that he does not bring any bias to this decision-making.

LEAHY: And lastly, on the issue of CAP, nobody is suggesting a bias on his part. But what bothers me, while you're doing a job application in 1985, we know Judge Alito's a very careful person, and I mean that as a compliment -- carefully put together job application. He proudly proclaims his membership in CAP, a group that was very much dedicated to keeping minorities and women out of Princeton: one that would probably look unkindly to either Judge Alito's Italian ancestors or my Italian ancestors.

LEAHY: Was this just pandering to the Meese and the Reagan administration, or is this just a total screw-up?

TOBER: May I defer to Ms. Tucker with that?

LEAHY: Sure.

TUCKER: We looked at that question, Senator. We were very concerned about that listing, knowing that membership in that organization would put him, perhaps, on an extreme that we would be uncomfortable with.

His answers to our committee were very similar, if not identical, to the answers to your committee. He did not recall when he became a member or even what he did. He didn't recall ever attending any meetings or reading any publications.

He did recall that he joined the organization because of the university's attempt to remove ROTC.

LEAHY: But that's not really my question. Was there any question of why was he so proud of this that he would put it in 1985 when everybody -- everybody knew what kind of an organization it was, where Senator Bill Frist had condemned it and Senator Bill Bradley -- quite the extreme political poles I suppose you might go.

LEAHY: Did you ask why he proudly put that on his...

TUCKER: We asked him why he put that on there. We didn't ask him why he proudly put that on there.

But he stated that he recalled he was a member.

We specifically asked him if this was to -- since it was a job application, that was he pandering. And he said it would be improper to not tell the truth on an application, that he was a member of that organization.

But there were only two organizations that he listed, as I recall, on that application. One was the Federalist Society. The other was the Concerned Alumni for Princeton. He did not have a long list of activities at that time.

But I should say, in fairness, we were very concerned about the membership of that and what happened. And all of the people we spoke to on the courts, women and minorities, people who he had worked with, people who had sat on panels with him side by side in issuing judicial opinions, almost universally said that they saw no bigotry, no prejudice.

TUCKER: They thought he was a fair man. And they felt that if he did put that -- they were shocked when they heard that that was listed on his application. And they said, "That is not the Sam Alito we know." And we heard that time and time again.

LEAHY: Thank you very much.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Mr. Tober.

Thank you, Ms. Tucker.

Thank you, Mr. Payton.

Senator Hatch?

HATCH: I'll reserve my time, thank you.

SPECTER: Thank you.

Senator Kennedy?

KENNEDY: Thank you very much.

Did you know, Mr. Tober, that the Vanguard Ventron (ph), which is the case of 1992, actually involved the carpentiers (ph) -- that names the carpentiers (ph) which were on the Alito list for recusal.

TOBER: We weren't...

KENNEDY: And I think for the most -- Mr. Payton, maybe this should be directed to you -- in that most of the people that have looked through there in detail feel that reason that that was actually recused is because the carpentiers (ph) -- at least I think it's spelled carpentiers (ph). Yes. C-A-R-P-E-N -- carpentier (ph). And that was the reason it was under the name of the Vanguard.

You're familiar with that?

PAYTON: Yes. I simply thought that it was unclear whether or not what would have caused that to be kicked off because of the standing recusal list was any hit with Vanguard or something else.

It's unclear. You cannot tell from what is there.

KENNEDY: Did the committee know when it inquired of the nominee that the Judge Alito had made a promise to the committee under oath that he was going to recuse himself from Vanguard?

PAYTON: Yes.

(CROSSTALK)

PAYTON: And we asked him about that.

KENNEDY: And did he indicate -- what was his response?

PAYTON: His response was that it was a mistake for those cases to have slipped through. That was not just a question about what the code said but also what his representation to this committee encompassed, that it was a mistake.

KENNEDY: And was the mistake, did you understand it, is because he didn't for one reason or another, neglected to put Vanguard on his recusal list?

PAYTON: No, I don't think I could say it that concretely. The mistake was that it got through. Why it got through, I think it was not completely clear to us. I'm not sure it was clear to Judge Alito. It got through.

KENNEDY: Well, it wasn't on his '93, '94, '95, '96 list, and the '93 says no changes were made from '92. And he got on the bench -- so there's just one year, a year and a half...

PAYTON: Don't know...

(CROSSTALK)

KENNEDY: I don't have the record on it. And I was just wondering, in your inquiry and review of that case, since that is the principle source, as I understand it, of revenue -- I mean, it's had sizable increases in the revenue from the time he took that oath till the more recent years. So that's one of the factors on it.

And I was just interested when you said it was a mistake -- that you made a determination detection, because we have not been able to find that it was ever put on. And, quite frankly, at least as a member of the committee, we've heard a number of reasons for it. We've heard computer glitch.

KENNEDY: We've heard that it was an interim pledge and a commitment. We have heard that it was a pro se case and therefore we didn't have -- the computers don't exist in the 3rd Circuit the way they do in law firms here in Washington, D.C. (inaudible).

And I'm just trying to find out what was told to you.

I think, to be very honest about it, if it had been said it was a mistake in the very beginning, I don't even think this issue would have taken more than 30 seconds of the committee's time.

But since we've had so many different reasons for it which we've been trying to ascertain exactly what had happened, and particularly since it was a pledge to the committee and it was a sworn statement to the committee that we were wondering what the Bar Association in its...

(CROSSTALK)

PAYTON: Senator Kennedy, I don't know the answer to your question.

I don't believe that what you just said about what was on the list in 1993-'94 was known then. I was unaware of that. And I'm not sure Judge Alito knew that.

But in our discussion with him, we actually cut right through that and simply wanted him to tell us if he agreed this was a mistake -- "Did you just miss it?"

"Yes, I just missed it. It was a mistake."

And the why, then, sort of became less significant.

KENNEDY: Well, of course, Mr. Payton, he did. During that same period of time he took a name off the list, so he must have been familiar with it. He took the U.S. attorney name's off the list.

We went through this. I'd be glad to make available to you -- just you've indicated that you'd gone through the hearings on this and I'd welcome the opportunity just to make available to you the same material and to get your response.

PAYTON: Senator, we indicated in our letter of explanation, as we always do, that we continue to monitor these proceedings.

KENNEDY: Thank you.

PAYTON: And we'll be happy to revisit anything the committee wishes us to look at.

KENNEDY: I want to join in thanking you for the service of the Bar Association. This is a very challenging and, in many senses, thankless job. But I think the country's much better off and so is the judiciary. And I thank you for your service.

PAYTON: Thank you.

(UNKNOWN): They're all billable hours, Mr. Chairman.

SPECTER: Thank you, Senator Kennedy.

Senator Hatch has stated an interest in regaining some of his reserved time.

HATCH: Well, just shortly.

We appreciate the efforts that you made. We appreciate what the Bar Association is doing. And we appreciate what you've done in this particular case as well.

Now, you're aware that -- and, frankly, he did state right off the bat, early in his testimony, that he had made a mistake with regard to the Vanguard matter.

On the other hand, are you aware that, not only did he recuse himself once he realized he'd made a mistake, but he asked the succeeding panel to retry the case. Are you aware of that?

PAYTON: Yes.

HATCH: Was that an appropriate thing to do?

PAYTON: He asked that the chief judge identify a new panel. And I think that was the appropriate thing to do.

HATCH: And that's what an honest, decent judge would do, isn't it?

PAYTON: Sure, of course.

HATCH: You're all aware of 28 USC, the U.S. Code statute on this -- am I correct?

PAYTON: Correct.

HATCH: I mean, that statute defines a financial interest for the courts that says, financial interest means ownership of a legal or equitable interest, however small or a relationship as director, adviser or other active participant in the affairs of the party except that ownership in a mutual or common investment fund that holds securities is not a, quote, "financial interest," unquote, in such securities, unless the judge participates in the management of the fund.

HATCH: Are you aware of that? Now, did he participate in the management of the fund?

PAYTON: The answer is no.

HATCH: Then, if he didn't participate in the management of the fund, would he have had, under normal circumstances, to recuse himself?

PAYTON: Well, I think the normal circumstances is, you know, amplified by the representation to this committee, which he acknowledged, independent of the obligation that you're talking about, would have caused him to not want these cases to come before him.

HATCH: Right. But he made it clear that once he did realize that there was a mistake, even though he did not, according to this U.S. Code, which is the basis, did not have to recuse himself, he did so because he had said in his statement that he would?

PAYTON: Yes.

HATCH: And you knew that? And so, I take it you don't find any real fault in the way he handled the Vanguard matter?

PAYTON: That's correct.

HATCH: That's correct?

PAYTON: That is correct.

HATCH: Thank you so much.

SPECTER: Thank you, Senator Hatch.

Senator Feinstein?

FEINSTEIN: Thank you very much for your service. Have you heard anything in these hearings that would cause you any concern or reason to change any of your views?

PAYTON: Well, the hearings are still going and I'm still listening.

But to the moment, Senator, I have been looking for any kind of material or discordant statement that would have been inconsistent with anything that we have learned or heard either through our interviews or our meeting with the nominee.

And to the moment, I'm still comfortable that we understood the judicial and legal profile of Judge Alito when we reached our rating.

FEINSTEIN: Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Feinstein.

Senator Kyl?

KYL: Mr. Chairman, I don't have any questions, but I would like to thank the panel and the Bar Association for its -- I wonder how many hours of work put into verifying the qualifications of the nominees, not just for the Supreme Court but the other nominations, and particularly, Mr. Payton, your explanation of the matters that you testified to here.

Thank you very, very much.

SPECTER: Senator DeWine?

DEWINE: No questions, Mr. Chairman.

SPECTER: Senator Sessions?

SESSIONS: Mr. Tober, you have 15 members of your committee that goes out and they divide up the work and interview now 300 individuals, is that what you...

TOBER: As it turned out, Senator, the chair just gets to do a lot of marshalling. And the 3rd Circuit representative had to recuse herself because she had argued a case before a panel that Judge Alito served on before he'd been nominated. And the decision had yet to come down.

So she, by our standards, removed herself. So I had 13 people out in the field interviewing well over 200 people, contacting over 2,000 people, putting together their own written reports, marshaling the information from every corner and putting in what turned out to be an 11-pound report.

And when I first received it, as I told Ms. Tucker, I didn't know whether to read it or send out birth announcements.

(LAUGHTER)

SESSIONS: Well, we're glad you don't have to do background work on senators.

(LAUGHTER)

PAYTON: We're pleased it's done for the moment.

SESSIONS: Well, one of the things, you know, some of us say -- we've complained about the ABA ratings. But there's so much value to it, it strikes me, because isn't it true that sometimes when you're interviewing a lawyer that's been before the judge who's lost case, a lawyer who's litigated against him, they'll tell you things they may not come forward and say publicly, and that you can get a good -- you feel like you get a better perspective on a nominee's professional qualifications than you can get from reading the newspaper, perhaps?

TOBER: Thank you for that question. Let me try and answer it.

The answer is yes. We have had the experience since 1948, when we started reporting our ratings to this committee, of being able to get comprehensive, confidential information from people who know the nominee directly in the trenches, whether it be a judge, a lawyer, other people in the community.

And we are able to ask them with respect to integrity, professional competence and judicial temperament with the full and complete understanding that there will be no attribution, there will be no embarrassment, that if it's important we need to know. And people indeed give us that kind of information.

So, yes, it is a remarkable process. And if I have the moment, I'd like to say it's a remarkable group of people that I've had the privilege to work with.

SESSIONS: And, Mr. Payton, you used the word, phrase, that they held him in incredibly high regard. I think you are a premier litigator, you've argued before the Supreme Court. I'm sure you used those words carefully.

PAYTON: I did.

SESSIONS: I thank you for your service. And I think it has provided valuable insight to the committee, because you see these things out there, and it's important for the American people to know, what do the people who really know and work with this judge think about him. And we value your comments.

SPECTER: Thank you, Senator Sessions.

Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

I'd just like to echo what my colleagues have said about the service you're providing, not only to the committee, but I think the country, because most people in the country are not lawyers. That's probably a good thing.

The idea of who you're getting as a person is important, and the homework you've done gives us a good picture of this particular man.

But his judicial experience compared to other people that you have reviewed, seems to me that being on the court for 15 years, you had a lot to look at.

TOBER: Well, we don't compare one nominee to another, Senator, as I'm sure you can appreciate. But I will take the direct question, and, indeed, I believe we said in our letter of evaluation that he's created an enormous record of public service, and his writings speak to that. And that's, indeed, what we've reviewed.

GRAHAM: Thank you.

And about your rating, we're all very pleased to the outcome here. But democracy is about a process, not an outcome. The rule of law is about a process, not an outcome. There may be occasion where you'll render a rating I won't agree with, and that's just the way it goes.

But I think the process where you're involved really helps us a lot. I think it helps the country. And I appreciate the time you've taken from your families and your business to do it.

Now, what may take normal people 30 seconds to figure out may take the Senate three days. But we're going to ask one simple question about Vanguard. I've listened, and with this much material to have dealt with and as many cases as he's heard, the first question for me about Judge Alito is: Who am I getting here? And is an innocent mistake OK? I hope so, because I make them all the time.

GRAHAM: What would I not want? I would not want someone who's into self dealing. I would not want someone who skirts the ethical rules and plays as close to the line as they could.

Would it be a fair statement that Judge Alito never plays close to the line, he tries to do it the best he can, to take the highest approach to ethics?

PAYTON: I think that from what his colleagues who know him very well would say is that they hold him in the highest regard with respect to his integrity. And I think that encompasses what you just said.

GRAHAM: Thank you very much.

And one last thought, about Vanguard. What is in it for him to intentionally hear the case, knowing that he shouldn't? I have never found anybody that could give me a reason why this judge would make an intentional decision to avoid recusal when he should. Have you found a reason?

PAYTON: I actually am unaware of anyone who has claimed that he intentionally did this. It was a mistake.

GRAHAM: And there's no benefit one could find for him intentionally doing it, based on the nature of the case?

TOBER: I'm not aware of one.

GRAHAM: Thank you all.

TOBER: Senator, if I could just add, I believe it was Professor Rotunda who submitted a report to this committee. And I think there was a line in there that caught my attention. He said, "Reasonable people can make reasonable mistakes." And I think that captures what we thought we found. And when we spoke to Judge Alito about it, we were convinced that it happened.

GRAHAM: Thank you for your services.

SPECTER: Thank you, Senator Graham.

Senator Schumer?

SCHUMER: Thank you, Mr. Chairman. I just have a brief question because we've heard a lot about the ABA rating, which is something that's prized and important.

Your sheet here that describes it says it describes three qualities: integrity, professional competence, judicial temperament. Is that right?

TOBER: That's correct.

SCHUMER: So it would not get into what somebody's judicial philosophy would be. Is that correct?

TOBER: That's also correct.

SCHUMER: And so, if somebody were very far right or very far left, as long as they had integrity, professional competence or judicial temperament, you would give them -- that's what you would rate them on.

TOBER: Senator, we don't do politics.

What we do is integrity, professional competence and judicial temperament. They are objective standards. And that's what we bring to this committee.

SCHUMER: And if one standard was -- however one defined it, if somebody was out of the mainstream, again, your rating would not give us any inclination whether that was part of it?

TOBER: If the suggestion was that they were out of the mainstream politically, that's correct.

If they're out of the mainstream in terms of their judicial temperament, we might have a different thought.

SCHUMER: Thank you.

SPECTER: Thank you very much, Mr. Tober.

Ms. Tucker, Mr. Payton, we very much appreciate your service and your being here today.

TOBER: Thank you.

SPECTER: Let's call the next panel -- Judge Becker, Judge Scirica, Judge Barry, Judge Aldisert.

Judge Garth will be coming to us electronically, but he appears on the screen.

Welcome, Judge Garth and Judge Gibbons and Judge Lewis.

Pardon me.

Senator Coburn, do you have questions of the ABA?

(LAUGHTER)

SESSIONS: AMA, he'd like to ask about.

(LAUGHTER)

SPECTER: I begin by welcoming the judges.

By way of a brief introduction, I think it is worthy of comment how this panel came to be invited.

Judge Becker was in my offices because since August of 2003 he has been performing mediation services on asbestos reform litigation -- more than 40 meetings in a very, very tough legislative approach.

SPECTER: And he was in my office last December, at a time when I was being interviewed by Kathy Kiely of USA Today. And I introduced Judge Becker to Ms. Kiely, who asked him about Judge Alito. And without objection, I'd like to make a part of the record the article which Ms. Kiely wrote for USA Today, dated December 14, 2005, which contains Judge Becker's comments about Judge Alito.

After that, I discussed with Judge Becker the possibility of his being a witness for Judge Alito. And after some discussions Judge Becker checked out the various considerations, said he would be willing to do so, if invited by the committee. And then Judge Becker talked to the other judges who are here today, who also stated a willingness to appear if invited by the committee. And I then sent them formal letters of invitation.

Now to the judges. Judge Becker is a graduate of the University of Pennsylvania, 1954; Yale Law School, 1957; appointed by President Reagan to the district court in 1970; and to the Court of Appeals for the 3rd Circuit in 1981.

He's really been performing services as the 101st senator. And by way of a full disclosure, I've known Judge Becker since the fall of 1950 when he was a freshman at the University of Pennsylvania and I was a senior. And we have been good friends ever since.

Judge Becker, thank you for your service to the United States in so many capacities.

BECKER: Thank you, Mr. Chairman.

SPECTER: We have a procedure for five minutes. I don't intend to bang the gavel on any of you judges -- not because you're judges, but because my gavel is almost broken.

(LAUGHTER)

Judge Becker?

BECKER: Mr. Chairman, Senator Leahy and other members of the committee, Sam Alito became my colleague when he joined our court in 1990. Since that time, we have sat on over 1,000 cases together. And I have therefore come to know him well as a judge and as a human being.

Many do not fully understand the intensity of the intellectual and personal relationship among appellate judges. We always sit together in panels of three. And in the course of deciding and writing up cases, engage in the most rigorous dialogue with each other.

BECKER: The great violinist Isaac Stern, describing an afternoon of chamber music, once opined that after such a session, one knows his fellow quartet members better than a man knows his wife after 30 years of marriage. Now this analogy -- hyperbole aside -- vividly describes the intense relationship among appellate judges.

I therefore believe myself to be a good judge of the four matters that I think are the central focus of this committee as it decides whether to consent to this nomination: Sam Alito's temperament, his integrity, his intellect and his approach to the law.

First, temperament. Sam Alito is a wonderful human being. He's gentle, considerate, unfailingly polite, decent, kind, patient and generous. He's modest and self-effacing. He shuns praise.

When he had completed his 10th year of service on our court, Sam declined my offer extended as chief judge -- I was then the chief judge of the court -- to arrange the usual party to observe 10-year anniversaries. Sam was uncomfortable at the prospect of encomiums to his service.

Sam has never succumbed to the lure of big city lights. He has a sense of place, which, for him, is not nearby New York City, but New Jersey, which to him has always been home.

Finally, there is an aspect of appellate judging that no one gets to see -- no one -- but the judges themselves: How they behave in conference after oral argument, at which point the case is decided, and which, I submit, is the most critically important phase of the appellate judicial process.

In hundreds of conferences, I had never once heard Sam raise his voice, express anger or sarcasm or even try to proselytize. Rather, he expresses his views in measured and temperate tones.

BECKER: Second, integrity: Sam Alito is a soul of honor. I have never seen a chink in the armor of his integrity, which I view as total, an opinion he's not undermined by the furor over the Vanguard issue by which I remain baffled.

My wife holds Vanguard mutual shares, which I report on my financial disclosure form. However, I do not identify Vanguard on my recusal list because I am satisfied that my wife possesses no ownership interest in the Vanguard Management company, which is what controls the recusal determination. She has never received a proxy statement, an opportunity to vote for directors, or any indicia of ownership, other than her (inaudible) share and the fund to the extent of her investment.

I believe that the view of Dean Rotunda, which is in your record, explains why Judge Alito was not required under the law to recuse himself in the suit against Vanguard.

Third, intellect: Judge Alito's intellect is of a very high order. He's brilliant, he's highly analytical and meticulous and careful in his comments and his written work.

He's a wonderful partner in dialogue. He will think of things that his colleagues have missed. He's not doctrinaire, but rather is open to differing views and will often change his mind in light of the views of a colleague.

Contrary to some reports, Sam does not dissent often. According to our court statistics, in the last six years, he has dissented only 16 times -- a little over two cases per year. That's the same number that I have dissented, and fewer than the number of our colleagues.

In my view, Sam Alito has the intellect to sit on the Supreme Court. I know all of its members. I know them reasonably well. And in my view, he would be a strong and independent justice, his own man.

Finally, Sam's intellect is not abstract, but practical. He does not mistake the obscure for the profound.

Fourth, approach to the law: As I address this topic, I'm acutely aware of the deep concern of the members of the committee about this subject. I am also aware that my role here is to testify to fact, not to opinion, and hence I will express neither normative or predictive judgments.

BECKER: The Sam Alito that I have sat with for 15 years is not an ideologue. He's not a movement person. He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be.

He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants.

He was a career prosecutor, but in the numerous criminal cases on which we have sat together, if the evidence was insufficient or the search was flawed, he would vote to overturn the conviction.

And, if the record did not support summary judgment against the plaintiff in an employment discrimination or civil rights case, he would vote to reverse. His credo has always been fairness.

Now I know that there's been controversy about certain ideological views expressed in some 20-year-old memos. Whatever these views may be, his judging does not reflect them.

I think that the public does not understand what happens when you become a judge. When you take that judicial oath, you become a different person. You decide cases not to reach the result that you would like, but based on what the facts and the law command.

What you decide as a judge are not general principles but the case in front of you. You view it as narrowly as possible. That's what Sam always does, with great respect for precedent.

Sam Alito has been faithful to that judicial oath.

Now, my final point relates to his approach to the law -- another facet of his approach to the law. And the best calibers that I can find to measure his approach to the law was to compare it with my own.

I have been a federal judge for 35 years, one week and one day. My opinions would fill many bookshelves. But I think that I am fairly viewed as a mainstream or centrist judge.

A computer survey run by our court librarian received 1,050 opinions in cases in which Sam Alito and I sat together. In these cases, we disagreed 27 times, which is probably about the same number that I would have disagreed with most other colleagues.

Some cases turned on a reading of the record, others on how rigorously or flexibly we interpreted the reach of a statutory or constitutional provision or a state court's jurisprudence or applied our usually deferential standard of review.

But, in every case on which we differed, Sam's position was closely reasoned and supportable either by the record or by his interpretation of the law or both.

The short of it, members of the committee, is that Sam Alito is a superb judge in terms of temperament, integrity and intellect. And he has exhibited a careful, temperate, case-by-case approach to the law.

BECKER: Thank you for the opportunity to address you.

SPECTER: Thank you very much, Judge Becker.

We now turn to Chief Judge Anthony Scirica who, like Judge Becker, has known Judge Alito on the 3rd Circuit for the 15 years of Judge Alito's service there.

Judge Scirica became chief judge in May of 2003, succeeding Chief Judge Edward Becker. Judge Scirica has a Bachelor's degree from Wesleyan, 1962, Michigan Law School, 1965. Appointed to the district court by President Reagan and, in 1984, to the circuit court also by President Reagan in 1987.

Thank you very much for coming in, Judge Scirica, and we look forward to your testimony.

SCIRICA: Mr. Chairman, thank you very much.

For the last 15 years, I have worked with Judge Alito. For 15 years, we have decided thousands of cases while serving on the same Court of Appeals.

On most cases we have agreed, but not always. Judges don't always agree on every case.

As the chief justice remarked last summer, much like a baseball umpire, a judge calls balls and strikes. If the pitch is down the middle or way outside, the call is straightforward. But many pitches are on the corners and then the calls are difficult.

These cases require hard thought, and these are the cases where a judge earns his or her keep.

In 15 years on the Court of Appeals, Judge Alito has more than earned his keep. He is a thoughtful, careful, principled judge who is guided by a deep and abiding respect for the rule of law.

He is intellectually honest. He is fair. He is ethical. He has the intellect, the integrity, the compassion and the judicial temperament that are the hallmarks of an outstanding judge.

SCIRICA: On three separate occasions I spoke with a representative of the American Bar Association during its evaluation process. My views and those of my colleagues on the court were sought by the American Bar Association because we have a unique perspective on Judge Alito, a perspective that no one else has.

Anyone can read and interpret his opinions. But we know Judge Alito from almost daily contact over a period of years. We have sat together in the same conference room. We have discussed the cases. We have decided them. And we have exchanged legal memoranda.

Judge Alito approaches each case with an open mind and determines the proper application of the relevant law to the facts at hand. He has a deep respect for precedent. His reasoning is scrupulous and meticulous. He does not reach out to decide issues that are not presented in the case.

His personal views, whatever they might be, do not jeopardize the independence of his legal reasoning or his capacity to approach each issue with an open mind.

Like a good judge, he considers and deliberates before drawing a conclusion. I have never seen signs of a predetermined outcome or view, nor have I seen him express impatience with litigants or with colleagues with whom he may ultimately disagree.

He is attentive and respectful of all views and is keenly aware that judicial decisions are not academic exercises but have far- reaching consequences on people's lives.

We admire him as a person.

Despite his extraordinary talents and accomplishments, Judge Alito is modest and unassuming. His thoughtful and inquiring mind, so evident in his opinions, is equally evident in his personal relationships. He is concerned and interested in the lives of those around him. He has an impeccable work ethic, but he takes the time to be a thoughtful friend to his colleagues.

He treats everyone on our court, and everyone on our court staff, with respect, with dignity and with compassion.

SCIRICA: He is committed to his country and to his profession. But he is equally committed to his family, his friends and his community.

He is an admirable judge and an admirable person.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Judge Scirica.

We turn now to 3rd Circuit Judge Maryanne Trump Barry. Graduate of Mount Holy Oak 1958, Columbia university in 1962 with a Master's, and a law degree from Hofstra, 1974.

Judge Barry was in the U.S. Attorney's Office before Judge Alito was there. Appointed to the district court in 1983 by President Reagan, and to the circuit court in 1999 by President Clinton. She has worked with Judge Alito for the past six years as colleagues on the 3rd Circuit.

Thank you for joining us, Judge Barry, and we look forward to your testimony.

BARRY: Thank you, Mr. Chairman. Good afternoon.

Good afternoon, members of the committee.

It is my privilege to appear before you, and it is a particular privilege to speak on behalf of my friend and colleague, Judge Samuel Alito.

Now, I warn you, I may be a little free and call him Sam on occasion, because Judge Alito and I go back almost 30 years to 1977.

In 1977, Judge Alito came to the United States Attorney's Office in the District of New Jersey following his clerkship with Judge Leonard Garth, who was and remains a giant on our court.

Sam was assigned -- see, I did it -- to the appeals division and I was the chief of that division, although in those days I didn't have very much more experience than he did.

Now, I said appeals division -- that sounds very much more substantial than it was. For what it was, was three assistant United States attorneys working very, very hard at a very, very responsible job.

BARRY: We handled all the criminal appeals of those defendants who were convicted at trial. It was our job to master the record, to analyze the issues, to read the relevant cases, to write a persuasive brief on behalf of the United States and, if necessary, to argue the case on the floor of the Court of Appeals.

Nobody did it better than Sam Alito.

And if there were any doubt on that score, the best evidence is the fact that after just four years as an assistant United States attorney, he went directly to the Office of the Solicitor General. Only the best are able to do that.

For the next six years, Judge Alito distinguished himself with public service in Washington, D.C., and then he returned to the District of New Jersey in 1987 as the United States attorney.

Important cases were brought on his watch -- organized crime cases, drug trafficking cases, public corruption cases. I know because I was there. And as the district court judge at that time, having been appointed by President Reagan, I handled some of his more important cases.

Now, I mentioned the cases that were handled on his watch for another reason.

The tone of a United States Attorney's Office comes from the top. The standard of excellence is set at the top.

Samuel Alito set a standard of excellence that was contagious -- his commitment to doing the right thing, never playing fast and loose with the record, never taking a shortcut, his emphasis on first-rate work, his fundamental decency.

The assistant United States attorneys who worked for him were proud to do so. They admired him completely.

Now, of course, in 1990 Judge Alito became Judge Alito. And you have heard the most glowing things said about Sam as a colleague on our court. I embrace every glowing statement.

Let me just conclude with this: Judge Alito is a man of remarkable intellectual gifts. He is a man with impeccable legal credentials.

BARRY: He is a fair-minded man, a modest man, a humble man. And he reveres the rule of law.

If confirmed, Judge Samuel A. Alito, Jr. will serve as a marvelous and distinguished associate justice of the Supreme Court of the United States.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Judge Barry.

We turn now to Judge Ruggero Aldisert, with a bachelor's degree from the University of Pittsburgh in 1942 and a law degree from the same institution in 1947, with intervening service in the Marine Corps.

He served on the court of common pleas of Allegheny County from 1961 to 1968, at which point he was appointed to the 3rd Circuit by President Lyndon Johnson.

Judge Aldisert and I were reminiscing about my predecessor, Senator -- yet to be a judge, Senator Joe Clark, whose seat I now occupy.

He was chief judge from 1984 to 1986 and took senior status in 1986. He has been a adjunct professor at the University of Pittsburgh and has served with Judge Alito on the 3rd Circuit for the past 15 years.

Thank you for coming all the way from California, Judge Aldisert, to be with us today. And we look forward to your testimony.

ALDISERT: Thank you, sir.

Mr. Chairman and members of the committee, I thank you for this invitation to offer my views on my colleague.

But, before proceeding into my formal statement, I want the record to show that there was a discussion this morning about ages of judges. Well, I am an old man. And I will tell you how old I am.

(LAUGHTER)

There's a certain distinguished United States senator sitting up there who I swore in as a lawyer in the city of Pittsburgh over 40 years ago. And that's Orrin Hatch.

(LAUGHTER)

And I will also say that I presided over the first jury trial that he ever tried. And he won the case.

LEAHY: Oh, that's sweet, Orrin.

HATCH: I'm glad you said that, Judge. They don't believe it.

(LAUGHTER)

LEAHY: I never knew you won one. That's nice.

(LAUGHTER)

SPECTER: They've always gotten along very well together, Senator Leahy and Senator Hatch.

ALDISERT: When I first testified before this committee in 1968, I was seeking confirmation of my own nomination to the federal circuit court. I speak now as the I speak now as the most senior judge on the 3rd circuit.

And I begin my brief testimony with some personal background.

ALDISERT: In May 1960, I campaigned with John F. Kennedy in the critical presidential primaries of West Virginia.

The next year, I ran for judge, as was indicated, and I was on the Democratic ticket, and I served eight years as a state trial judge.

And as the chairman indicated, Senator Joseph Clark of Pennsylvania was my chief sponsor when President Lyndon Johnson nominated me to the Court of Appeals, and Senator Robert F. Kennedy from New York was one of my key supporters.

Now, why do I say this? I make this as a point that political loyalties become irrelevant when I became a judge. The same has been true in the case of Judge Alito, who served honorably in two Republican administrations before he was appointed to our court.

Judicial independence is simply incompatible with political loyalties, and Judge Alito's judicial record on our court bears witness to this fundamental truth.

I have been a judge for 45 of my 86 years. And based on my experience, I can represent to this committee that Judge Alito has to be included among the first rank of the 44 judges with whom I have served on the 3rd Circuit, and including another 50 judges on five other courts of appeals on which I have sat since taking senior status.

Moreover, I have been a longtime student of the judicial process. I have written four books on the subject and more than 30 law review articles. And this study required me to study the current work of 22 justices of the U.S. Supreme Court. And I've read hundreds of opinions of appellate judges of every federal circuit, every state, and every political stripe.

And the great Cardozo taught us long ago the judge, even when he is free, is not wholly free. He is not to innovate at pleasure. This means that the crucial values of predictability, reliance and fundamental fairness must be honored.

ALDISERT: And as his judicial record makes plain, Judge Alito has taken this teaching to heart. He believes that legal outcomes will follow the law as dictated by the facts of the particular case, whether the facts involve commercial interests, government regulation or intimate relationships.

According to these criteria, Mr. Chairman, Judge Alito is already a great judge.

We who have heard his probing questions during oral argument, we who have been privy to his wise and insightful comments in our private decisional conferences, we who have observed at first hand his impartial approach to decision-making and his thoughtful judicial temperament and know his carefully crafted opinions, we who are his colleagues are convinced that he will also be a great justice.

If Justice Alito is confirmed, as I believe wholeheartedly he deserves to be, he will succeed a justice who has gained a reputation as a practical justice, whose resistance to ideologically driven solutions has positioned her as a swing vote on the court.

And as has been heard several times in this hearing, Justice O'Connor, in 1995, described her approach to judging. What she said then is even more important today. And I quote, "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. The only way for judges to mediate these conflicting impulses is to do what they should do anyway: Stay close to the record in each case that appears before them and make their judgments based on that alone."

And knowing Sam Alito as I do, I am struck by how accurately these words also describe the way in which he has performed his work as a United States circuit judge.

And that is why, with utmost enthusiasm, I recommend that he be confirmed as an associate justice on the Supreme Court.

And thank you, Mr. Chairman.

SPECTER: Thank you very much, Judge Aldisert.

We turn now to Judge Leonard Garth who is coming to us -- you see him on the television screen -- coming to us from California. Judge Garth is a graduate of Columbia, 1942; served in the United States Army, lieutenant from '43 to '46; and then from the Harvard Law School, where he graduated in 1952.

In 1969, he was appointed to the district court by President Nixon, and then to the circuit court by President Nixon in 1973; a lecturer at Rutgers Law School and at the Seton Hall Law School.

Has known Judge Alito since Judge Alito clerked for Judge Garth back in 1976 to 1977 and has served with him on the 3rd Circuit for the 15 years of Judge Alito's tenure there.

SPECTER: Judge Garth, we very much appreciate your being with us, and we look forward to your testimony.

GARTH: Thank you, Senator Specter, Senator Leahy and the honorable members of the Senate Judiciary Committee -- and, of course, my own family of judges who have preceded me in speaking to you today.

I, too, am privileged to appear before you today, albeit by video conferencing rather than in person. I cannot be with you in person because I recently had some major spinal surgery, and I find it extremely difficult and painful to travel.

As Senator Specter has indicated, I have served as a federal judge for some 36 years, as a district court judge in New Jersey and, since August of 1973, as a member of the 3rd Circuit Court of Appeals.

Now, I do want to interject and say that in that respect, perhaps Judge Aldisert is older than I am -- not by many days.

(LAUGHTER)

And I'm almost as old as he is, but not quite as handsome as Judge Barry of my court.

(LAUGHTER)

I hope you'll forgive that aside, but I want to ask you something else to forgive me. I have heard all of my colleagues speak so eloquently, and I'll use the term that Judge Barry used, glowingly, about Judge Alito. But I have known him just a little bit longer and in a different capacity over the course of his career.

Following his graduation from law school, he served as one of my two law clerks in 1976 to 1977. And as you have heard, since 1990 he has served as my colleague on the court of appeals.

GARTH: During the interim years, because of the relationship that we developed during his clerkship and the fact that both he and I are New Jersey residents, we remain close to one another. Hence I think I can speak knowledgeably about Sam's qualifications and his talents, his discretion, his honesty, his fairness and his integrity.

These are qualities that Judge Alito possesses now and has possessed since the very beginning of his legal career.

Let me first tell you about Sam's clerkship with me. As you may know, a law clerk is a judge's legal adviser and a sounding board, if I may use that term. But he or she often becomes much more than that -- a member of the judge's extended family.

And, as a result, a judge gets to know his law clerk in a particularly personal way.

I knew Sam in this personal way at the very beginning of his career as a lawyer. For that reason, I think I have a unique perspective to share with you about him.

I chose Sam to be my law clerk in 1976 from among the literally hundreds of applicants who sent their resumes to me and the other judges of honor of our court that year.

Sam was still a law student when I interviewed him, but he struck me in that encounter as fiercely intelligent, deeply motivated and extremely capable.

I did not know at that time that Sam was the son of Samuel Alito Sr. That's a gentleman who had impressed me very, very much as a witness in the New Jersey redistricting case that I heard about 1972.

Once I made the connection, however, I fully understood why Sam was so impressive and why he regarded -- and regards today -- his father as a role model.

During his tenure with me, Sam bore out all my initial impressions of his excellence -- impressions which had led me to engage him. He was a brilliant and exceptional assistant to me.

He enabled me to test judicial theories and to fashion appropriate judgments in each case that came before our court. I have had some 85 law clerks assisting me in chambers over the course of my career on the bench.

GARTH: They have all been extremely well qualified in all ways to serve a court of appeals judge.

Sam Alito stands out even among that very elite group. And during the year that he was my law clerk, Sam and I frequently took an afternoon walk near the courthouse in Newark and discussed the cases while we walked.

I can tell you that the recommendations and arguments that Sam made about those cases were, as my colleagues have pointed out, always reasoned, principled and supported by precedent.

I developed, then, a deep respect for Sam's analytical ability, his legal acumen, his judgments, his institutional values and, yes, even his sense of humor which, if he is confirmed -- as I hope he might -- will probably compete with that of other justices.

Few of the cases that come before our court are slam-dunk cases. Most involve difficult questions on which reasonable people can disagree. And generally Sam and I reached agreement after discussing these cases, but more than once we did not.

Even in those latter cases, the ones in which we disagreed, I understood and respected the positions that Sam advanced and the contours of his analysis.

Our afternoon walks invariably ended at a neighborhood store, T.M. Ward Company, where we purchased peanuts and coffee. I note parenthetically that Ward has since honored Sam by naming a special blend of coffee that he favors, Judge Alito's Bold Justice Blend.

(LAUGHTER)

I think there are few of us that have that distinction.

After he left my chambers, Sam continued on to public service, as you have heard. In a letter to the then-Deputy Assistant Attorney General Arnold Burn, I endorsed Sam's candidacy for United States attorney for the district of New Jersey. And I want to just read you what I wrote. This was a long, long time ago.

"I can certify to Mr. Alito's integrity, ability, discretion and honesty.

GARTH: "Above and beyond those qualities, however, I believe his talents as a lawyer are exceptional.

"I am sure that his tenure in government service since he has left my chambers has reflected the fact that he is a thorough, meticulous, intelligent and resourceful attorney and that his judgments are mature and responsible. Indeed, he was one of the finest law clerks I have had the privilege to engage. And if I were to rate him on the basis of one to 10, 10 being the highest rating, he would without question receive a 10-plus rating."

I stress these same attributes when I endorsed Sam for membership on our court seven years later. He has more than lived up to my rating and the qualities that I attributed to him in the 15 years since he joined the court and became my colleague.

Sam is an intellectually gifted and morally principled judge. We have not always agreed on the outcome of every case, as just recently stated.

Just this fall, for example, Sam dissented from a majority opinion that I wrote in an Employee Retirement Income Security Act -- that's ERISA -- that I wrote in an ERISA case.

In that case, Sam and I disagreed about how two provisions of the statute interact. I and the other majority judge were attracted in large part to the reasoning of the 2nd Circuit.

Judge Alito, on the other hand, was attracted by the reasoning of the 7th Circuit. Even in the cases on which we disagree, however, I always respect Sam's opinion -- just as I did during our afternoon walks when he was my law clerk.

Sam is also a prudent judge.

Make no mistake, he is no revolutionary. He is a sound jurist, always respectful of the institutions and the precepts that led to the decisions in the cases under review.

I have heard concerns expressed about whether Judge Alito can be fair and evenhanded.

GARTH: Let me assure me from my extensive experiences with him and with my knowledge of him going back, as I have stated, over 30 years, that he will always vote in accordance with the Constitution and laws as enacted by Congress.

His fairness, his judicial demeanor and actions, and his commitment to the law -- all of those qualities which my colleagues and I agree he has -- do not permit him to be influenced by individual preferences or any personal predilection.

As you may know, when the judges of our court meet in conference -- and I think Judge Becker referred to this in his remarks -- we are the only individuals in chambers. No law clerks, no assistants, no administrative personnel or, indeed, anyone else attend these conferences.

I can tell you with confidence that at no time during the 15 years that Judge Alito has served with me and with our colleagues on the court and the countless number of times that we have sat together in private conference after hearing oral argument, has he ever expressed anything that could be described as an agenda. Nor has he ever expressed any personal predilections about a case or an issue or a principle that would affect his decisions.

He has a deep and abiding respect for the role of stare decisis and established law. I appreciate, of course, that the Supreme Court can retreat from its earlier decisions, but it does so rarely and only in very special circumstances.

And I am convinced that if Judge Alito is confirmed as an associate justice of the Supreme Court, he will continue to honor stare decisis as he did as a law clerk and as he has done as a member of our court.

He will sit among those jurists whose qualities of fairness and of principle are the lode star of the judiciary.

GARTH: In my opinion, Sam is as well qualified as the most qualified justices currently sitting on the Supreme Court.

A word about Sam's demeanor is in order. Sam is and always has been reserved, soft spoken and thoughtful. He is also modest, and I would even say self-effacing. And these are the characteristics I think of when I think of Sam's personality. It is rare to find humility such as his in someone of such extraordinary ability.

Over the 30 years I have known Sam, I have seen him grow professionally into the reserved, mature, independent and apolitical jurist that graces our court today. I regard him as the most qualified member of our court to be considered as an associate justice of the Supreme Court.

I know that just as Judge Alito has brought and brings grace and luster to the 3rd Circuit, so too will he bring grace and luster to the United States Supreme Court if he is confirmed.

Thank you, members of the Senate Judiciary.

SPECTER: Thank you very much, Judge Garth, coming to us, I've just been advised, from Phoenix, Arizona. Thank you.

Our next witness is Judge John Gibbons. Graduate of Holy Cross, 1947, bachelor's, Harvard Law School in 1950. Nominated to the 3rd Circuit by President Nixon in 1970, chief judge from 1987 to 1990 -- at which time he resigned to become a professor of law at Seton Hall University.

He now is in the practice of law. Known Judge Alito for more than 20 years when Judge Alito was a U.S. attorney and has tried cases before Judge Gibbons.

Thank you very much for being with us today, Judge Gibbons, and we look forward to your testimony.

GIBBONS: Mr. Chairman and members of the Judiciary Committee, as you all probably know, or as Senator Specter has just said, I was a member of that court of appeals where Judge Alito is now a member for 20 years.

And, indeed, it was my retirement from that court 16 years ago that created the vacancy which Judge Alito filled on the court of appeals.

Since his appointment, lawyers in the firm of which I'm a member have been regular litigators in the courts of the 3rd Circuit, not only on behalf of clients who pay us handsomely for such representation but also frequently through the firm's Givens Fellowship Program on behalf of nonpaying clients whose cases have presented those courts with challenging human rights issues.

The Givens Fellowship Program is certainly a significant part of our practice, as aptly demonstrated by the fact that, since 1990, Givens Fellows lawsuits have resulted in 115 reported judicial decisions.

This committee should appreciate that the Court of Appeals for the 3rd Circuit has been, for the 50-plus years that I followed or participated in its work, a centrist legal institution.

An important reason why that's so is that, many years ago the court adopted the requirement that all opinions intended for publication must, prior to filing, be circulated by the opinion writer not only to the members of the three-judge panel, but also to the other active judges on the court.

The purpose of this internal operating rule was to permit each active judge not only to comment upon the opinion writer's treatment of 3rd Circuit and Supreme Court precedent but also to vote to take the case en banc for rehearing by the full court if the judge thought that the opinion was outside the bounds of settled precedent.

Thus, the level of interaction among the 3rd Circuit appellate judges has, for a half century, been unusually high. This committee should also appreciate that appointment to an appellate court where one has life tenure is a transforming experience.

GIBBONS: I remember a former judicial colleague saying to me once, after several years on the bench, "John, what other job in the world is there in which you can look in the mirror while you're shaving and say to yourself, 'All I have to do today is the right thing according to the law?'"

A good judge puts aside interests of former clients, interests of organizations one may have belonged to and interests of the political organization that may have been instrumental in one's appointment.

I personally experienced that transformation, and I witnessed it repeatedly in the judicial colleagues who joined the court after I did.

These two points, the unusual internal cohesion of the 3rd Circuit Court of Appeals and the transformative experience of serving on a court protected by life tenure, suggest to me that the committee members in determining whether or not to vote in favor of confirming Judge Alito should concentrate not on what he thought or said as a recent Princeton undergrad or graduate or as a young lawyer seeking advancement as an employee of the Department of Justice, but principally, if not exclusively, on his record as an Article III appellate judge.

If you look, as you should, at that 15 record as a whole, you cannot, in good conscience, conclude that Judge Alito will bring to the Supreme Court any attitude other than the one held by the colleague I mentioned who thought important thoughts about judging every morning while he was shaving.

He has consistency followed the practice of carefully considering both Supreme Court and 3rd Circuit Court precedents.

Very few of the opinions he has written for a unanimous panel or for a panel majority have moved his colleagues among the active judges to vote to take the case en banc. The cases in which he participated that produced dissenting opinions by him or from him, all, it seems to me, were close cases in which either the law or the evidentiary record were such that equally conscientious judges could quite reasonably disagree about the outcome.

GIBBONS: Take, for example, cases presenting challenges to state regulations of abortion, certainly a hot-button topic for many people who are opposing Judge Alito's confirmation.

I found four such cases in which he participated. In three of them, he decided against state regulations that might have put a burden on a woman's choice for an abortion.

In the fourth case, about which a lot has been said, Planned Parenthood of southeastern Pennsylvania v. Casey, Judge Alito dissented from a majority opinion holding unconstitutional the Pennsylvania spousal consent provision for an abortion. And it is that dissent which the opponents of his confirmation talk about most frequently.

They seem to urge that on the basis of that dissent, Judge Alito is so far out of the mainstream of constitutional law that his confirmation will endanger the constitutional protection of civil rights practically across the board.

In your consideration of that dissent, I suggest that you should take into account these points.

First, at the time the circuit considered the Pennsylvania spousal consent statute, the Supreme Court had not yet decided whether states could impose such a requirement.

And second, the Court of Appeals majority invalidated the statute. Had the Supreme Court simply denied certiorari, that invalidation would have remained in place.

GIBBONS: Instead, at least four justices voted to grant certiorari.

If the issue of the statute's constitutionality was so overwhelmingly clear, why was certiorari granted to endorse the 3rd Circuit's majority position?

Clearly, Planned Parenthood v. Casey was, at the time the court of appeals acted, a case over which conscientious judges could reasonably disagree. Otherwise, the Supreme Court would simply have denied certiorari.

Nothing in the Supreme Court's case law dealing with abortion relieves the appellate judges in intermediate appellate courts from the duty of making a conscientious effort to fit the case before them within that case law -- and the four abortion cases in which he participates show that that is exactly what Judge Alito has done.

Another opinion that has caught the attention of those clamoring for Judge Alito's scalp is his dissent in United States v. Rybar, in which he would have held that the Supreme Court decision in Lopez prohibited Congress from regulating mere possession of machine guns. The majority opinion upheld the statute.

Unlike Casey, the Supreme Court didn't review that case. Thus, the question of the reach of Lopez was left open. And when the issue reached the 9th Circuit in the United States v. Stewart in 2003, it adopted Judge Alito's dissenting position.

Some opponents of his confirmation have relied on that dissent in suggesting that Judge Alito is perhaps a captive of the right-wing gun lobby.

This committee, after actually reading Lopez and Rybar and the 9th Circuit case, I suggest, cannot in good conscience find the dissent to be anything more than a good faith effort to somewhat unenthusiastically apply the perhaps unfortunate Supreme Court precedent of Lopez.

Indeed, in his Rybar dissenting opinion, Judge Alito suggested how Congress could cure the Lopez violation.

The extent to which opponents of Judge Alito's confirmation largely ignore his overall 15-year record as a judge suggests, at least to me, that the real target for many of the somewhat vitriolic comments on the nomination is less him than the executive branch administration that nominated him.

GIBBONS: The committee members should not think for a moment that I support Judge Alito's nomination because I'm a dedicated defender of that administration.

On the contrary, I and my firm have been litigating with that administration for a number of years over its treatment of detainees held at Guantanamo bay, Cuba and elsewhere. And we are certainly chagrined at the position that is being taken by the administration with respect to those detainees.

It seems not unlikely that one or more of the detainee cases that we are handling will be before the Supreme Court again. I do not know the views of Judge Alito respecting the issues that may be presented in those cases. I would not ask him. And if I did, he would not tell me.

I'm confident, however, that, as an able legal scholar and a fair-minded justice, he will give the arguments -- legal and factual -- that may be presented on behalf of our clients, careful and thoughtful consideration without any predisposition in favor of the position of the executive branch.

That's more than the detainees have received from the Congress of the United States, which recently enacted legislation stripping federal courts of habeas corpus jurisdiction to hear many of the detainees' claims -- without even holding a committee hearing.

Justice Alito is a careful, thoughtful, intelligent, fair-minded jurist who will add significantly to the court's reputation as the necessary expositor of constitutional limits on the political branches of the government. He should be confirmed.

SPECTER: Thank you very much, Judge Gibbons.

Our final witness on the panel is former 3rd Circuit Judge Tim Lewis, a graduate of Tufts University in 1976, a law degree from Duquesne in 1980.

SPECTER: He served as an assistant United States attorney before President Bush the elder appointed him to the Western District Court. And then in 1992, President Bush the elder nominated him to the 3rd Circuit.

Judge Lewis resigned in 1999 and now is co-chair of the appellate practice group at the Schnader Harrison office. He serves as co-chair of the National Committee on the Right to Counsel, a public service group dedicated to adequate representation of indigents.

Judge Lewis and Judge Alito served together on the 3rd Circuit for seven years.

We appreciate your being here, Judge Lewis. And the floor is yours.

LEWIS: Thank you very much, Senator Specter.

Thank you, members of the committee. It's a pleasure and an honor to be here today.

When Thurgood Marshall announced his intention to resign as a justice of the United States Supreme Court in conference one day, the first person to respond was Chief Justice Rehnquist. Chief Justice Rehnquist's words were, "No, Thurgood, no. Please don't. We need you here."

Shortly thereafter, when Justice Marshall had resigned, he was interviewed and, in the course of that interview, was asked about Chief Justice Rehnquist. And during that interview, he said, "This is the best chief that I have ever served under" and went on to extol Chief Justice Rehnquist's service on the United States Supreme Court.

Now, I was quite frankly stunned by both of those observations when I learned them at the time. And it wasn't until I had served for a period of time as a judge on the United States Court of Appeals that it all began to make sense to me.

It is no coincidence to anyone who is familiar with my body of work while I served on the United States Court of Appeals and my body of work since having left the court, that I happen to be sitting on the far left of this panel here this afternoon.

(LAUGHTER)

And yet, I am here. And what I have just related about the exchanges between Justice Marshall and Justice Rehnquist -- and Justice Marshall's later observation about the chief justice helps explain why I am here, because it is true that during the time that I served with Judge Alito, there were times when we did not agree.

I am openly and unapologetically pro-choice and always have been. I am openly -- and it's very well known -- a committed human rights and civil rights activist and am actively engaged in that process as my time permits, my law practice permits today and through my law practice at Schnader Harrison Segal & Lewis.

LEWIS: I am very, very much involved in a number of endeavors that one who is familiar with Judge Alito's background and experience may wonder -- well why are you here today saying positive things about his prospects as a justice on the Supreme Court?

And the reason is that having worked with him, I came to respect what I think are the most important qualities for anyone who puts on a robe, no matter what court they will serve on, but in particular, the United States Supreme Court.

And first and foremost among these is intellectual honesty. As Judge Becker and others have alluded to, it is in conference, after we have heard oral argument and are not propped up by law clerks -- we are alone as judges, discussing the cases -- that one really gets to know, gets a sense of the thinking of our colleagues.

And I cannot recall one instance during conference or during any other experience that I had with Judge Alito, but in particular during conference, when he exhibited anything remotely resembling an ideological bent.

That does not mean I agreed with him. But he did not come to conference or come to any decision -- any decision -- that he made during the time that I worked with him, based on what I perceived to be an ideological bent or a result-oriented demeanor or approach.

He was intellectually honest and, I would say rigorously so, even with respect to those areas that he and I did not agree.

Second, I have no hesitation in commending his commitment to principal, both in how he went about his work on the 3rd Circuit and how he came to his decisions.

LEWIS: It was through a very difficult process we all would put ourselves through.

But in Sam's case, I think that I can say that no one worked harder at coming to what he thought was the right decision than Judge Alito.

Finally, though we did disagree, it was always respectful, and that is what I came to understand as probably the most important facet of appellate judging. No one, and I mean no one, has a corner on the marketplace of ideas in terms of what is best, what is right.

We have different approaches and it's very important that we maintain different approaches in positioning and in pushing forward our sense of jurisprudence. They do not have to be the same.

In fact, I think that it is contrary to the best interests of democratic government for there to be some monolithic approach to judicial decision-making on the United States Supreme Court or on any other court.

Sam Alito practiced a form of jurisprudence that I think is best referred to as judicial restraint, judicial deference. It is, in many respects, a more conservative form of jurisprudence than was my own. And that is fine. That is perfectly fine. And as a matter of fact, I dare say it's important because through the exchanges we learn from one another and I think we're a better court.

And I know that this is the case on the Supreme Court, as it is reflected in Chief Justice Rehnquist's observation when Justice Marshall announced his resignation.

And I think that it's important that different approaches be respected.

So that in the end I am here as a matter of principle and as a matter of my own commitment to justice, to fairness and my sense that Sam Alito is uniformly qualified in all-important respects to serve as a justice on the United States Supreme Court.

Thank you.

SPECTER: Thank you very much, Judge Lewis.

This distinguished panel has been accorded much more time than we customarily allow because of the very large number of witnesses which we have.

SPECTER: But out of deference to your positions and your coming here and your unique knowledge, we have done that.

I would like to ask each of you a great many questions, but I'm going to limit myself to five minutes. And I would urge that the responses be sounds clips.

You haven't had as much experience with that as we have, but on the networks a sound clip goes for about eight seconds and locally about 18 seconds. You don't have to quite do that, but as close as you can.

You can start my clock now.

Judge Becker, the conference is a unique opportunity, as has been explained, to really find out about what your colleagues think. Do you think -- is your judgment that Judge Alito would allow his personal views on a matter to influence his decisions as a justice?

BECKER: I do not think that. I am confident that he would not.

SPECTER: Judge Garth, you spoke about stare decisis. You have been quoted about your views of Judge Alito as to his approach, if confirmed, where the bounds of a Supreme Court justice on stare decisis are not the same as a court of appeals judge.

As Judge Gibbons has noted, the issue of a women's right to choose has become a very central factor in our deliberations. Do you have any insights which you would care to offer as to how Judge Alito would weigh the issue of stare decisis on that particular subject?

GARTH: (OFF-MIKE) And it would be presumptuous of me to even think of how he would rule on that subject.

GARTH: But I can tell you that when it comes to applying the precedents in our court and in the Supreme Court, he has always been assiduous in the manner in which he has applied them. And he has always had good reason and principle.

I can't say more than repeat again that I believe that Judge Alito, when he described to the committee how he would rule on a case and what he would do in respect of stare decisis, I could not express it better than he did.

SPECTER: Judge Barry, you've sat with him in these private conferences, known him for a long time, back to days when you were in the -- and I hadn't noted that -- you were in the U.S. Attorney's Office when he was an assistant. How would you evaluate Judge Alito on his consideration of women's issues?

BARRY: If I had to add anything to my initial testimony, I would have stated more about what Sam and I did together on this wonderful court and how reasonable he was, and how he never indicated bias of any kind.

I told you at the outset I have known Judge Alito for almost 30 years. I have the utmost respect for him. I have never heard him say one thing that would give me any reason to believe that he would give other than the most careful consideration to what you described as women's issues.

SPECTER: Judge Lewis, I have a question for you. And then I'm going to propound a question for the other three judges before my red light goes on.

SPECTER: I would like you to be a little more specific in your evaluation on Judge Alito as to how he would handle the civil rights issue.

And I'm not going to wait for to you start to answer because my red light will go on in advance.

And then I'm going to ask Judge Scirica, Judge Aldisert and Judge Gibbons to address the subject which has concerned this committee in some detail, as to whether there is any tilt in Judge Alito's approach to the powerful, to the government, as opposed to the average citizen whom we characterize as "the little guy?"

Would you start, Judge Lewis, with your evaluation?

LEWIS: Yes, I will. Thank you, Senator.

Let me begin by saying that, if I believed that Sam Alito might be hostile to civil rights as a member of the United States Supreme Court, I guarantee you that I would not be sitting here today.

That's the first thing that I want to make clear.

My experience in civil rights cases on the 3rd Circuit were primarily in the Title VII area, with Judge Alito. And there were cases in which we agreed and cases where we disagreed.

There was one in particular, the Piscataway case which was, for lack of a better term, a reverse discrimination case that became an en banc matter where I and a number of my colleagues wound up writing dissenting opinions.

But that was a very close and, I think, very closely contested case having to do with whether or not Title VII contemplated diversity as an interest that an employer could use.

And, to my disagreement and chagrin, the majority did not agree with Judge Sloviter, Judge McKee and myself in that case.

But I never felt that Judge Alito or any of my colleagues who were in the majority in that case were in any sense hostile to civil rights interests. It was a legal question and they came out the way that they did.

In other cases -- for example, the Aman v. Cort Furniture case which I authored.

LEWIS: Judge Alito was not on the panel, but as I think Judge Gibbons mentioned, all opinions are circulated on the 3rd Circuit.

And so really, any opinion that comes out as the opinion of the court. I don't believe in that case, which was another Title VII case that I think furthered the law in some very important respects, defining racial code words as actionable under Title VII -- I believe that Judge Alito went along with that. I was very happy that he did that. And there were others.

My sense of civil rights matters and how courts should approach them jurisprudentially might be a little different. I believe in being a little more aggressive in these areas.

But I cannot argue with a more restrained approach. As long as my argument is going to be heard and respected, I know that I have a chance. And I believe that Sam Alito will be the type of justice who will listen with an open mind and will not have any agenda-driven or result-oriented approach.

SPECTER: Judge Scirica, would you reply as briefly as you can as to the question I've posed?

SCIRICA: In my 15 years with Sam Alito, I have never seen any indication that he would favor that particular interest.

SPECTER: Judge Aldisert?

ALDISERT: Well, I'd approach it from a rather personal standpoint.

Judge Alito is an American of Italian origin and, until quite recently, Americans of Italian origin were subject to a lot of discrimination -- quotas as to whether they could get into professional schools.

A little example in my particular case. When you consider all the Americans of Italian origin from New England, Connecticut, New York, New Jersey, Pennsylvania and along the seaboard, there had never been an American of Italian origin -- where these millions of Americans of Italian origin lived -- there had never been an American of Italian origin ever appointed to the United States Court of Appeals until President Johnson appointed me in 1968.

ALDISERT: So I can speak from experience: Things are better now, but I have lived through that.

When you look at Judge Alito, his father came to the United States as an Italian immigrant at a very early age. And I'm certain that the idea of protecting the rights of the so-called little guy is in the genes of Samuel A. Alito Jr.

SPECTER: Judge Gibbons, as briefly as you can.

GIBBONS: Well, his attitude toward criminal defendants is of some significance for our law firm, because we have a very big white collar criminal defense practice. And my partner, Larry Lustberg, prepared a memo on the subject.

He says although given his prosecutorial background, Judge Alito has been seen by many of the defense bar as pro-government. A thorough review of his record shows that, in fact, he's a fair-minded jurist who pays careful attention to the record below and who takes great pains to apply precedent.

Now he then goes on in the memo to review the series of cases in which Judge Alito decided against the government on many significant issues.

And he concludes, "While, like most appellate judges, there are far more decisions affirming than reversing convictions" -- that is certainly true of every judge who's sat on the court of appeals -- "Judge Alito's jurisprudence is properly characterized as careful, based on precedent and particularly attentive to the record. If that record does not support affirmance, he reverses."

But he also included an admonition to the rest of the department that you better know the record, because he will.

SPECTER: Thank you, Judge Gibbons.

Return to Part I by clicking here. Part III continues here.

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

CQ Transcriptions
Thursday, January 12, 2006; 5:25 PM

The transcript picks up with Sen. Feinstein's questions. Return to Part II.

Senator Feinstein?
 
FEINSTEIN: Thank you very much, Mr. Chairman.

And I'd like to thank you very much for being here. I think the testimony was very interesting. I listened acutely.

And, you know, I think we'd all be very lucky if any one of us had colleagues like you that would come forward and say the things that you all have said.

Let me ask this question. How do you look at the evaluations that have been done, those evaluations that say, "Well, in the cases looked that he has judged," whatever percent it was but let's say it's 70 percent, I'm just making it, in favor of corporations or business, or against the little man? How do you look at that sample and how do you regard that? It's been written about rather extensively.

Anyone that would like to try to answer it.

Judge Becker?

ALDISERT: I would try that.

FEINSTEIN: Oh, all right. Give Judge Becker, because I've known him longer.

BECKER: Senator Feinstein, first of all, you have to keep in mind that -- and I think this is a national -- this statistic applies nationwide. I think somewhere between 80 and 85 percent of cases are affirmed. So a lot of this is going to determine who won in the district court or who won in the agency. So those numbers are skewed by that very fact.

The only other thing I would say is, I haven't analyzed these statistics, but that's nothing I've ever seen. He's voted with me. There was a case not long ago, it was a very thin employment discrimination case which a woman, while she never got to a jury in district court, one of my colleagues wanted to affirm. I was on the fence. And Sam wanted to reverse. I said, "OK, write it up." And we went along.

I've just never seen any evidence that he's for the big guy against the little guy. But I think if you analyze these, I think you'd find most of the statistics come from the fact that the big guy won in the district court and 80 to 85 percent of those case are affirmed, and most of those would have been unanimous.

ALDISERT: I was about to say the same thing, but my good friend Judge Becker, your figure was a little skewed there.

ALDISERT: The percentage of reversals is not 15 percent; it's 8.7 percent...

(LAUGHTER)

... in the statistics of last year of all cases. In criminal cases, through in the figures of 2004, the reversal rate in criminal cases was 5.1 percent.

BECKER: I always defer to the master...

BARRY: And of course it should be added that when we are considering cases on appeal, we are operating on a standard of review. So we are not typically looking at the issues underlying that review.

We're looking at an abusive discretion standard. We're looking at: Were the facts clearly erroneous? So we're not starting from scratch, typically.

FEINSTEIN: Let me ask you this question: The subject of abortion and Roe was raised. And, obviously, if you've listened to the hearings, you've heard the questioning going on, back and forth.

I was very puzzled when I read Chief Justice Roberts' statement before us on Roe and how he answered Senator Specter's questions. And the chief ended up by saying that he felt that Roe was well-settled law. I think he even added to that very well-settled law.

SPECTER: He said settled beyond that.

FEINSTEIN: All right, settled beyond that.

And I asked Judge Alito, and I thought at the very least he was going to agree with Justice Roberts.

FEINSTEIN: And he said, "Well, it all depends upon what settled means."

What do you make of that?

BARRY: I respectfully cannot characterize what Judge Alito meant by that, and I much prefer not to have to try.

FEINSTEIN: That's fine.

Anybody?

(UNKNOWN): I think we're here as fact witnesses more than opinion witnesses, Senator Feinstein, and I really would not answer that question.

FEINSTEIN: Very good, very good.

(UNKNOWN): I couldn't make a judgment on it.

FEINSTEIN: Thank you. Thank you very much.

Thanks, Mr. Chairman.

SPECTER: Senator Hatch?

HATCH: Well, I want to express my gratitude to all of you judges -- you too out there in the West, Judge Garth -- for coming here today and helping this committee.

It was pretty apparent that I got quite emotional when my old friend Judge Aldisert testified -- I really did. I got emotional because I care for you and I watched you for years there and just have a tremendous amount of respect. Read your books -- and you've always sent them to me. And that's meant a lot to me.

But you all mean a lot to me. It's no secret that, with very few exceptions, I love the federal courts. I love the judges. And there are very few exceptions.

There are a few that I think you could name yourselves.

(LAUGHTER)

But by and large -- you know, we pass unconstitutional legislation up here all the time and the president sometimes, too.

(LAUGHTER)

If it hadn't been for the courts, we would probably not have preserved the Constitution.

(LAUGHTER)

So I want to give you all credit for that.

But let me just say this -- by the way, just to correct the record, what Judge, now Chief Justice Roberts -- he and Judge Alito basically said the same thing. They said, well, it's settled as a precedent of the court -- with regard to Roe v. Wade. And that's exactly what he said. Entitled to respect under principles of stare decisis. That's basically what Alito said.

HATCH: And Roberts said, "And it is settled as a precedent of the court, yes."

So Senator Specter asked him some more, and then he said, 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.

So these are maybe touchy words, but it's important to get it right.

Now, one of the most prominent issues in this hearing has been how Judge Alito views the role of precedent in deciding cases. Too often, I think, the objective seems not so much to get insight into Judge Alito's general views about precedent, but about clues about how he will treat particular precedents.

First, let me make this point about Judge Alito's record regarding circuit precedent. As I understand it, the appeals court can reconsider its own precedents only when all 3rd Circuit judges sit together en banc.

Is that correct?

(UNKNOWN): That is correct.

HATCH: OK. It is my understanding that in his 15 years on the 3rd Circuit, Judge Alito has participated in 38 en banc decisions.

Now, Judge Alito voted to overturn circuit precedent in just four of those cases. Two of those decisions were unanimous, all judges agreed.

Now, that does not look to me like someone who plays fast and loose with precedent.

Let me just ask you, Judge Becker -- and if anybody disagrees with what Judge Becker says I'll be happy to have you respond -- let me ask you a question about Judge Alito's handling of -- and the reason I ask Judge Becker is Judge Becker, as Senator Specter said, is the 101st senator. He came down here and gave (inaudible) time trying to help this asbestos problem, and we all respect him for that.

Let me just say, I know you have participated in more than 1,000 cases -- or decisions rather -- with Judge Alito. All of you, of course, can offer your thoughts as well.

Yesterday during the hearing, one of my Democratic colleagues held up some charts listing quotes from a few case in which Judge Alito's colleagues criticized how he applied circuit precedent. The picture that was painted was that Judge Alito misapplies precedent when it suits him -- suggesting, I suppose, that he might be an activist or careless in this regard on the Supreme Court.

HATCH: Now I certainly agree that the views of his fellow judges are particularly relevant on this point, and having you here is very valuable to all of us for that reason.

Now, asking you all about this here seems more useful than a few selective sentence fragments on a chart.

Realizing, Judge Becker, that judges do not always agree on every single point every single time, how would you characterize Judge Alito's overall view or approach to precedent?

BECKER: Respectful of it. I've never seen what was portrayed where...

(CROSSTALK)

BECKER: Judge Alito might have disagreed with prior precedent, but he followed it unless he felt that it was dicta -- in which case it wouldn't be precedent...

HATCH: Right.

BECKER: ... or the case was distinguishable. But I have never seen him ignore or disregard precedent.

HATCH: Has any of the rest of you seen that?

(UNKNOWN): No.

HATCH: Judge Aldisert?

ALDISERT: Judge Hatch...

HATCH: Senator Hatch, please.

(LAUGHTER)

ALDISERT: I wanted to answer Judge Feinstein (sic) the same way.

In my book "The Judicial Process: Text, Materials and Cases," second edition, 1996, I have an entire chapter on precedent.

And one of those sections is called viability of precedent or when do you depart? And there's a sophisticated body of law -- and I cite cases with Justice Sandra Day O'Connor, Thurgood Marshall and a few others.

And there are also some very important scholarly academic articles on it. And I think that Judge Alito's expression that it depends is a statement that you have to consider all the factors on all the Supreme Court cases that discuss when do we depart from precedent?

ALDISERT: And there's a body of law. And it's in my case book.

HATCH: Thank you so much.

Mr. Chairman, I want to thank all of these great judges for being here. And I want to thank you, Judge Lewis, for taking time to be here, in particular. We just really respect you. I love and respect the 3rd Circuit Court of Appeals.

SPECTER: Thank you, Senator Hatch.

Senator Leahy?

LEAHY: Well, Mr. Chairman, I realize we have some retired and very distinguished retired judges, but some current judges. Insofar as the current judges, their cases are appealed to the Supreme Court. If Judge Alito becomes a member of the Supreme Court, he'll have to rule on appeals from their decisions.

And so I think, rather than create a difficulty for them or for Judge Alito if he is confirmed, I think I will not avail myself of a chance to ask questions of this unprecedented panel.

SPECTER: Thank you very much, Senator Leahy.

Senator Kyl?

KYL: Thank you, Mr. Chairman.

I just had a question -- and I think, Judge Lewis, it was a comment that you made that raised this question in my mind.

There was a point made about the circulation of opinions among all of the judges on the court.

When a three-judge panel has tentatively made a decision in a case and circulates an opinion, is that opinion circulated among all the judges? And then do all of the judges have an opportunity to comment on that in some way?

(UNKNOWN): Yes.

KYL: Any of you -- Judge Lewis?

LEWIS: Yes, that is correct. And that is why the opinion is the opinion of the entire court, in the end, when it is released.

I should let Chief Judge Scirica address the current practice. I've been off the court for some time.

SCIRICA: Thank you.

LEWIS: But I assume it's done the same way. Is it not, sir?

KYL: This is interesting to me because I practiced before the 9th Circuit Court of Appeals and that same opportunity, I think, is not as available.

LEWIS: Yes.

ALDISERT: That, Senator -- that was invented by Judge Biggs in the late 1930s.

KYL: In the 3rd Circuit, sir?

ALDISERT: Yes.

SCIRICA: We circulate all of our precedential opinions to the entire court before they are ever published; that is, before the litigants or before the public sees them.

We do not do that with a category that we call not precedential opinions. They are handled by the panel themselves unless there is a dissent, in which case we circulate them as well.

Now, of course, when a litigant loses a case, that litigant has the opportunity to file a petition for rehearing. And that goes to the entire court, because the litigant usually asks both for panel rehearing before the original panel and also before the entire court.

And so for precedential opinions it gets sent to the court on two different occasion -- one before it is ever published and one after it is published.

KYL: I'm curious, what happens if there's a strong opinion by one of the judges on the court who did not sit on the original three- judge panel?

SCIRICA: Well, that's...

KYL: Different from the conclusion.

SCIRICA: Any judge on our court, on the initial circulation or even on the circulation for the petition for a rehearing may write to the entire court or may write to the opinion writer or may write to the panel expressing his or her disagreement.

It's one of the wonderful things about an appellate court, because we view the panel decisions that are precedential as opinions of the court, more than just the opinion of the panel or the opinion of the author of the case.

And there's often this wonderful dialogue that goes back and forth between the opinion writer or the panel and the judge who may have concerns about what is being decided. And it can sometimes can go on for days, sometimes the panel will, or the author, will say, "I want to think about this. I want to have the opportunity to revisit this issue."

SCIRICA: And sometimes it takes weeks before the panel comes back with a new opinion, often a revised opinion. This is part of the collegial aspect of the court.

KYL: This should be very reassuring to the litigants...

BARRY: And sometimes we'll go en banc before the opinion ever issues.

(UNKNOWN): Often the panel will change its mind, say, "We got it wrong."

KYL: It's very interesting, and I appreciated the opportunity to at least mention that. And I, too, want to thank all of you for your willingness to be here, to take time out, but most especially to speak on behalf of a colleague who I know you all admire a great deal. And I thank you for that very much.

SPECTER: Thank you, Senator Kyl.

Senator Durbin?

DURBIN: Mr. Chairman, I thank the members of the panel for their public service. I have no questions. And I would like to associate myself with the remarks of Senator Leahy.

SPECTER: Thank you very much, Senator Durbin.

Senator DeWine?

DEWINE: I have no questions, Mr. Chairman.

SPECTER: Senator Sessions?

SESSIONS: I would just like to ask the panel, I see one of the articles that stirred up some of this discussion about not being evenhanded judge actually only considered 221 cases in the judge's first six years on the bench.

I'm sure you as professionals who have been there, your judgment is better about his style and fairness than some abstract numbers would be. But I will just ask you, Judge Scirica, maybe, and if others would like to comment please do so, on civil rights cases that I've seen here, the civil rights cases Judge Alito wrote, the panel agreed with him 90 percent of the time and his opinions were unanimous 90 percent of the time. That doesn't sound like an extreme position to me.

What would you say about that?

SCIRICA: Well, I would agree. That would comport with my recollection of these cases.

SESSIONS: And I notice the respect Judge Lewis had for Judge Alito. It said, when he sat on panels where both the other judges were Democratic appointees, the decision was unanimous in 100 percent of the cases, or whatever those statistics show.

And then, with regard to the immigration cases, it says that his appeals, the average judge in the country, in the average cases, the immigrant wins asylum claims in the court of appeals in slightly over 11 percent of the time. But in Judge Alito's record he ruled for the immigrant seeking asylum in fully 18 percent of the cases.

Do those numbers, Judge Scirica, strike you as sort of what the -- well, the 11 percent, is that about what you would expect?

SCIRICA: Yes, sir.

SESSIONS: And in the cases that he wrote opinions on, the average court of appeals judge ruled for the immigrants 8 percent; he ruled for the immigrants 19 percent.

Well, I don't know that those numbers mean a whole lot, but I do think they tend to rebut some of the numbers that we've seen floating around, because your opinion of him does not reflect a person who shows bias.

In the Rybar case, Judge Gibbons, you're no longer on the bench, you could be honest with us right here in Congress. If the Congress had put in an interstate commerce nexus in the statute they passed about machine guns, like they did in ITSMV, Interstate Transportation of Stolen Motor Vehicle, or interstate transportation of stolen property, kidnapping or theft from interstate shipment, it would have been upheld, wouldn't it?

GIBBONS: That's what he said in his dissenting opinion.

SESSIONS: So the truth is that Congress missed the boat.

GIBBONS: Yes.

(LAUGHTER)

(CROSSTALK)

SESSIONS: And we'd be fix it soon as we passed the law correctly, I would submit.

SESSIONS: And I would just ask this, Judge Aldisert. I'm serious about this question, but I think Judge Roberts agreed with me that if an individual within the heart of Pennsylvania or New Jersey picks up a rock and kills another person, that is not a federal crime. Is that correct? Unless there's something added, without an interstate nexus of some kind, or that would be prosecuted solely by the state court.

(UNKNOWN): Unless he stole the rock out of an interstate shipment.

(LAUGHTER)

LEWIS: It could be a violation of federal civil rights, also.

(UNKNOWN): Or if the person he assaulted was a federal official.

SESSIONS: Right.

(UNKNOWN): A president or a vice president or a senator.

(LAUGHTER)

SESSIONS: Well, Judge Lewis said it could be a civil rights violation if he was in a way to deny someone of civil rights or if he was a federal official. But classically, the federal criminal law has been tied to interstate commerce nexus, hasn't it, Judge Aldisert?

(UNKNOWN): Civil rights.

SESSIONS: Judge Lewis?

LEWIS: That's right.

SESSIONS: Thank you.

SPECTER: Thank you, Senator Sessions.

Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

I feel like I need to say "may it please the court."

Thank you all for being here. It's very important, I believe, to have testimony from people that know this nominee.

We've heard a lot of wild and crazy, from my perspective, accusations that have been unsubstantiated, from people who don't know this nominee as well as you do.

I want to just try to eliminate one concern that's been expressed. And I've heard a hint of criticism about these judges appearing as witnesses in this hearing, supposing that perhaps there will be some conflict of interest if your decisions would be appealed to the United States Supreme Court and Justice Alito had to sit on it.

I haven't noticed any lack of a willingness to disagree with him while you were colleagues on the 3rd Circuit. That seems highly unlikely. And for the suggestion that this is somehow unprecedented, to have judges, former and current sitting judges, testify, Mr. Chairman, I have a list of examples where sitting members of the federal judiciary have testified during the confirmation proceedings of another federal judge. And I would ask that that be made a part of the record.

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

CORNYN: Canon 4B of the code of conduct for U.S. judges provides, "A judge may appear at a public hearing before a legislative body..."

There's some ellipses there.

"... on matters concerning the law, the legal system and the administration of justice to the extent it would generally be perceived that a judge's judicial experience provides special expertise in the area."

And I regret, your honors, that you somehow get sucked in to the contentiousness and some of the unfairness that occurs sometimes -- the innuendo that sometimes arises when you're a witness in a contested proceeding.

And, as you can tell, these hearings have become -- and the confirmation process -- an adversarial process.

The unfortunate point, as our chairman has noted before, it's not controlled by the rules of evidence. It could be based on speculation, hearsay and rumor. Whereas we know, in a court of law, that wouldn't be admissible.

And our procedures are a lot more flexible and open-ended. And, certainly, there's no standard of review that applies to judges in your distinguished and exalted position as members of the federal judiciary.

Judge Aldisert, I want to say that I guess I'm the only other panel member, member of this committee, who's probably read one of your books. But I'm certainly familiar with your great work and your writings.

And, of course, as has already been noticed, Judge Becker is very familiar to the Judiciary Committee.

And I want to ask both Judge Gibbons, who is no longer on the bench, and Judge Becker -- both of you have talked about the transforming experience of crossing over from being an ordinary lawyer, including a U.S. attorney, and then putting on the black robe, after you have put your hand on the Bible and have taken an oath to uphold the laws and Constitution of the United States, so help me God, and what a different perspective that provides -- a different obligation, different responsibilities.

CORNYN: And I think Judge Trump Barry noticed that transformation in this nominee when he crossed over from being a practicing lawyer to becoming a member of the judiciary.

And, Judge Becker, I wonder if you just might comment -- we just have a couple of seconds here. But this morning, Senator Biden was asking questions about this nominee's views on Roe v. Wade and perhaps is reflected in an application he made for a job in 1985. And it seemed to raise the question of: Well, if that's your view today, wouldn't you just feel free to go in and vote to overrule it?

And it struck me because of the difference in a judge's role from that of an advocate. He was applying for a job as part of the Reagan administration.

But on one hand he was talking about, well, maybe you have the power, but what Judge Alito seemed to talk about most was legitimacy of the judicial making process and the judgments rendered by courts and why that's such an integral part of the role judges play in our system of government.

Would you please respond to that?

BECKER: Well, I agree with Judge Alito and I think, Senator Cornyn, that you have eloquently described the transforming experience.

I know that it is within your life's experience when you took the oath of office to be the justice of the Texas Supreme Court, it just transforms you. You become a different person and your obligation is to the rule of law. And you have no interest in a case -- and if I could just segway this into your original point, which bears upon what Senator Leahy had to say in terms of whether or not a justice of the Supreme Court would have to recuse on an opinion I wrote, on one of our cases, I have no interest in the case.

Recusal is a function of whether or not the party or the lawyer has an interest in the case.

BECKER: But I don't have any interest in any case. And (inaudible) none of us have any interest in any case. And this is consistent with what Judge Alito said and your description of that transforming experience.

CORNYN: Mr. Chairman, I would just say, Judge Gibbons and Judge Lewis are no longer members of the bench; I'm sure have experienced the liberating transformation once you cross back over that rubicon, perhaps, as well.

Thank you very much.

SPECTER: Thank you very much, Senator Cornyn.

Senator Coburn?

COBURN: Thank you very much. And I appreciate so much you all taking the time to come here.

As a physician, I'm starting to learn some of the lingo of the legal profession. It's hard, but I'm going to talk in doctor's terms so the rest of them can't understand.

But, Judge Barry, I wanted to ask you -- and also Judge Lewis -- do you think that there is any merit whatsoever to the allegations that were made that Judge Alito is hostile to the rights of women or minorities? And have you seen that? In the 30 years, have you seen any indication whatsoever, either in his opinions, his personal life, in his interpersonal relations with you, or you, Judge Lewis, that there is any indication that there's that type of bias in this man?

BARRY: I have never seen it. And if I had seen it, I would not be here today.

COBURN: Judge Lewis?

LEWIS: I've already said that if I sensed that Sam Alito, during the time that I served with him or since then, was hostile to civil rights or would be hostile to civil rights as a justice of the United States Supreme Court, I absolutely would not be here today.

I am not interested in saying anything on behalf of someone that I believe would hold views like that or would proceed in that way.

I am basing what I am saying on my years of experience in conference with him, discussing cases. We had different views and different approaches, but never did it seem to me that he held any hostility to civil rights, which is an area that I hold very dear and is very important to me -- and remain committed to furthering in this country.

COBURN: Thank you.

Well, Mr. Chairman, I don't think that you can have a better recommendation than the people that you worked with and the people that you spend the greatest amount of time with and the people who see you under stress, who make evaluations.

And the greatest tragedy, I think, of this hearing is the allegations that have been made that aren't substantiated based on fact, but are substantiated on the basis of the fact that you want to try to destroy somebody's character and undermine their character to make them look a certain way in which they're not.

COBURN: And I appreciate your all's very straightforward answer, and I thank you coming.

And I yield back my time.

SPECTER: Thank you very much, Senator Coburn.

The question has been raised as to precedents. And Senator Cornyn has addressed that. And it's worth mentioning just a few, that former Chief Justice Burger testified for Judge Bork, District Judge Craig testified for Chief Justice Rehnquist, District Judge Tanner testified for Justice Thomas. The canons, specifically 4B, of the conduct of U.S. judges makes a specific allowance for this kind of a situation. Quote, "A judicial experience provides special expertise to the area."

And it is certainly obvious that the insights which you judges have to Judge Alito's background is unique. When you talk about what goes on in those conferences, you're the only ones who are there. And you have much more insights as to the opinions he has written that you have worked with him on.

We have 30 witnesses who are coming in, and that has been a traditional part of the process, but I know of no situation where witnesses have more to say which is relevant and weighty. Perhaps weight is the best evidentiary characterization of what you've had to say.

A lot of things can be relevant. Especially where you have the issue which has been before this committee as to Judge Alito's agenda or Judge Alito's approach or Judge Alito's personal views dominating his judicial determinations, this panel is right on the head.

SPECTER: And it has been an unusual panel, but that's really not a strike against the practice. It may be a precedent for the future and it, I think, will be a good precedent.

But whenever you try something new, there are differing voices, but I think it's an extraordinary contribution which this panel has made to this process.

So, Judge Becker, former Chief Judge Becker, Chief Judge Scirica, Judge Barry, Judge Aldisert, Judge Gibbons, Judge Lewis and Judge Garth from Phoenix, Arizona -- you lucky fellow -- we thank you all very much for coming in.

We're going to take only a 10-minute break now. I didn't have a chance to discuss it with Senator Leahy.

But we do not have the situation where Judge Alito is on the stand and he needs a little longer break. We'll have fresh witnesses and tired senators.

Ten minutes. We'll resume at 5:20.

(RECESS)

SPECTER: We'll now proceed with panel three.

And our first witness is Edna Axelrod. She's known Judge Alito for nearly 20 years, having worked with him when he was a United States attorney. She is a sole practitioner in South Orange, New Jersey. She served in the U.S. Attorney's Office from 1980 to '83, and '85 to '94, during Judge Alito's tenure as U.S. attorney. She had important positions as chief of the Appeals Division. She is a graduate of Duke's law school with a master's degree in law from Temple.

And we welcome you here, Ms. Axelrod.

We're going to have to be mindful of the time, because we have four panels and about 23 witnesses. (inaudible) Well, I would like to, but it's subject to negotiations with you, Senator Leahy.

LEAHY: Mr. Chairman, could I just ask you to consider (ph) the number of letters I have of usual things to put in the record.

SPECTER: Sure, without objection, they will be made a part of the record. Thank you, Ms. Axelrod for being here, and we're starting the clock for five minutes.

AXELROD: Thank you, Mr. Chairman and members of the committee. I appreciate the opportunity to appear here today to testify in support of the nomination of Samuel Alito.

I am a former chief of the Appeals Division of the United States Attorney's Office of the District of New Jersey, and for the past 11 years I have practiced as a federal criminal defense attorney in northern New Jersey.

At this point in these proceedings, I am sure there's little need to provide further comment concerning Judge Alito's legal acumen and outstanding accomplishments. However, I hope that the committee may find it useful to hear the insights and observations of someone who worked closely with Judge Alito during the period of time that he served as United States Attorney for the district of New Jersey.

I first met Judge Alito when I joined the United States Attorney's Office in 1980. At that time, he was laboring in the appeals division, and I was in the frauds division. As a rookie, I quickly learned that if I ran into a particularly thorny legal or procedural problem, the most knowledgeable and approachable person to consult was Sam Alito. Although he soon left for the Solicitor General's Office, he returned in 1987 as United States Attorney.

Shortly after his arrival, he began selecting the supervisory staff who would assist him during his tenure. And after reviewing my work in the appeals division, he asked me to serve as chief of appeals. This was particularly meaningful to me for two reasons. First, Judge Alito's estimable as an appellate and Supreme Court advocate had preceded him, and the importance that he placed on the appellate process was well known. Second, in 1987, it was still unusual for women to be elevated to positions of authority in either government or private offices, and I was gratified to see that Judge Alito's appointments were based on merit, not gender.

As a member of his supervisory staff, I met frequently with Judge Alito, sometimes alone, but usually with other division chiefs, to discuss ongoing, significant criminal prosecutions, appeals and investigative initiatives. During these meetings, he openly invited the thoughts and input of everyone, asking subtle questions to guide the discussion to areas where he had concerns. Although it was clear that in the end, he would make up is own mind, it was equally clear that there was no danger in advocating a position that he might ultimately reject.

His goal was to get as much information as possible, so his decisions could be firmly grounded in a comprehensive understanding of the law and the facts. Consistent with this approach, the stewardship of the office was grounded in quiet confidence. His decisions and actions were measured and thoughtful, never impulsive or purely reactive. Although it is possible for U.S. Attorneys to use their offices as showcases for themselves in their further aspirations, that is, to enjoy and employ the limelight, this was never Judge Alito's way. It was always the work, not the image, that came first.

It is a well-known motto of federal prosecutors, one most often heard on those occasions when they suffer defeat, that the United States wins when justice is done. Under the leadership of Samuel Alito, and I should say Judge Alito, that was more than a catch phrase. It was office policy. Judge Alito expected the assistants in his office to work hard to achieve and preserve convictions where the evidence supported guilt. But he also demanded that they remain ever- mindful of the very great power that they wielded as federal prosecutors and the need to use that power with appropriate discretion.

Based on my experience in that office, I am confident that Judge Alito would approach the power of being on the Supreme Court with an equal, if not heightened, sense of responsibility and care. As I noted earlier, I am presently a criminal defense attorney, and I am also a lifelong Democrat. As such, I might be expected to have concerns about Judge Alito's nomination. However, in supporting his nomination, I am actually representative of a large number of former colleagues of Judge Alito, of all political stripes, who support his nomination because they know firsthand what kind of man he is.

Those of us who know him know that he is not an ideologue, and that he does not use his position to pursue personal agendas. We have seen his profound respect for the law and precedent and his unfailing respect for all participants in the criminal justice system: prosecutor, defense counsel and defendant alike. We know him to be a man of unquestionable ability and integrity, one who approaches each case in an open-minded way, seeking to apply the law fairly.

The appointment of Sandra Day O'Connor to the Supreme Court in 1981 was an event of special importance to me. At the time, I thought that the most significant fact was that she was a woman, the first woman, on the court. And of course that was truly groundbreaking. But in time, I have come to appreciate that, more than her gender, it is her extraordinary mixture of character and intellect that has most profited our country. As a person of both great character and great intellect, Samuel Alito would be a worthy successor to Justice O'Connor, and I hope that he will be speedily confirmed. Thank you very much.

SPECTER: Thank you, Ms. Axelrod.

Our next witness is Professor Michael Gerhardt, distinguished professor of constitutional law at North Carolina School of Law. Professor Gerhardt is the author of a number of books on constitutional law. He has served as special consultant to the White House on the nomination of Justice Stephen Breyer. He received his bachelor's degree from Yale in 1978, masters from the London School of Economics and law degree from the University of Chicago in 1982. Thank you for joining us, Professor Gerhardt, and the floor is yours for five minutes.

GERHARDT: Thank you very much, Mr. Chairman, Senator Leahy and other distinguished members of the committee. For almost 20 years, I have had the honor of teaching constitutional law. For almost as long, I have studied the process of Supreme Court selection in some detail and have had the privilege and opportunity to write about it at some length.

And I come to you today with the hope that whatever expertise I have developed in that process may be of some use to you. In this statement, I want to just make three brief observations as extensions of my written statement, which you already have.

First, the constitution allows every senator to make a decision about a Supreme Court nominee based on whatever factors he or she considers to be pertinent, including judicial philosophy. The constitution, I believe, does not require absolute deference to the president when it comes to making Supreme Court nominations, nor, for that matter, does it require hostility. The constitution allows you, I think, to do what you see fit. It allows you to engage in a robust dialogue about the qualifications for service on the Supreme Court.

With that in mind, I just want to give you one brief example of what I'm talking about and what the constitution allows, just to illustrate the robustness of the process -- that we shouldn't be ashamed of it, but, in fact, should be prepared to embrace. Much has been said about the fact that Judge Alito has had the most judicial experience of any nomination made to the Supreme Court in almost 70 years, but nobody mentions who that other nominee was.

That other nominee that proceeded him was Benjamin Cardozo. And Cardozo, as we probably all know, was not President Hoover's first choice. He wasn't even President Hoover's second choice. In fact, he was the choice of the Senate. And when senators came to the president and said, in effect -- in fact, members of this committee came to the president and said, in effect, that "This is the person we want, here are the criteria we think are important," President Hoover was not obliged in any way, shape or form to accept that, but he did.

And I simply make that observation to underscore the fact that there is an opportunity for exchange between the presidency and the Senate with respect to a Supreme Court nomination. And we should be prepared and as open as possible in talking about the qualifications for service. And again, if each of you believes to some extent that judicial philosophy is appropriate, it's important to say so and to act accordingly.

Secondly, you know better than I the important function of this committee as a gatekeeper. You are in the position, at least the initial position, of being able to filter out the views and personality you don't want to see reflected on the Supreme Court. Or you're in the position of determining what views and personality you do want to have on the Supreme Court.

The Supreme Court is largely a function of choices made by the president and the Senate. The Senate and the president help to make the Supreme Court what it is. And I think that that dual partnership is something we ought to keep in mind, because in making determinations and judgments about a Supreme Court nomination, the Senate has an extremely important role to play.

And the more vigorously you perform that role, I think, the more credit it does to you, and the more we can be assured that whatever choice gets made about the people that serve on the court, that we can have confidence that they can be there, that they are worthy of the trust you've given them to exercise the awesome power of judicial review over the constitutionality of not just your actions, but the actions of other branches.

Third, I must confess, and I regret there's an error in my written statement, I discuss in the written statement the importance of assessing whether or not Judge Alito was a bottom-up or top-down judge. A bottom-up judge is somebody who decides cases incrementally, one at a time, and has a great deal of respect for precedent. A top- down judge is somebody that tends to infer principles directly from the constitution and then impose them from the top down.

And in the course of trying to figure out whether Judge Alito is bottom-up or top-down, I made a mistake in not identifying Justice Harlan as one of the justices he most admires. I just wanted to correct that error. The reverence for Justice Harlan is almost universal, and he's certainly one of the justices I most admire. But the admiration for Justice Harlan does raise a question.

And the question is this: "How, if at all, does Judge Alito's reverence for Justice Harlan make him the same kind of judge or a different kind of judge than other justices who also have admired Justice Harlan, including Justice Kennedy and Justice Souter. Is he the same kind of judge they are, or is he a different kind of judge?"

Reverence for Justice Harlan is obviously pertinent, it's important, but it may only tell us so much, and I think it's useful and very important for you not to shy away from asking the tough questions. You have asked the tough questions. I think it does you credit. I think that's what this process is all about, and I am privileged to be a part of it.

Thank you.

SPECTER: Thank you very much, Professor Gerhardt.

Our next witness is Commissioner Peter Kirsanow, with the U.S. Commission on Civil Rights, partner with the law firm of Benesch, Friedlander. He's also on the board of directors of the Center for New Black Leadership, on the advisory board of the National Center for Public Policy Research. His bachelor degree's from Cornell, a law degree from Cleveland State with honors. Commissioner Kirsanow has reviewed Judge Alito's civil rights record and will testify as to his conclusions in that area.

KIRSANOW: Thank you, Mr. Chairman, Senator Leahy, members of the committee.

The U.S. Commission on Civil Rights was established pursuant to the 1957 Civil Rights Act to, among other things, act as a national clearinghouse for matters pertaining to discrimination or denials of equal protection.

And furtherance of clearinghouse responsibility, and with the help of my assistant, I've reviewed the civil rights cases in which Judge Alito has participated in the Third Circuit as well as his record as an advocate for the Supreme Court in the context of prevailing civil rights jurisprudence. Our examination reveals that Judge Alito's approach to civil rights is consistent with the generally accepted textual interpretation of the relevant constitutional and statutory provisions as well as governing precedent.

His civil rights opinions evince appreciable degrees of judicial precision, modesty, restraint and discipline. In short, his civil rights record is exemplary: legally sound, intellectually honest and with an appreciation and understanding for the historical bases under- girding our civil rights laws. Our examination also reveals that several aspects of Judge Alito's civil rights record have been mischaracterized, some of the criticisms misplaced. Just three brief examples:

First, some have contended that Judge Alito has a regressive or anti-civil-rights view of affirmative action, one that's to the right of Justice O'Connor. This contention is based on three affirmative- action cases in which Judge Alito participated (inaudible) while he was with the Solicitor-General's Office in the Reagan administration. These three cases are Wygant v. Jackson Board of Education, Sheet Metal Workers v. EEOC, and Firefighters v. the City of Cleveland, all of which involved expansive racial preferences as remedies for discrimination.

Notwithstanding the fact that positions espoused as an advocate are poor proxies for interpretive doctrine, there is nothing in the records to stress that Judge Alito would somehow restrict remedies currently available under United Steelworkers v. Weber or Johnson v. Transportation Agency any more than Justice O'Connor would. Judge Alito essentially argued that rigid quotas are unlawful and opposition to quotas and expansive racial preferences do not evince a hostility to affirmative action, let alone civil rights in general.

KIRSANOW: Second, some critics have said that Judge Alito's decision or dissent in Bray v. Marriott is evidence of his supposed tendency to impose quote "almost impossible evidentiary burdens on Title VII plaintiffs." But a review of Bray shows that Judge Alito's dissent actually steadfastly adheres to Third-Circuit precedent and carefully applies the law to the facts, whereas majority opinion seems to dilute the commonplace standard of proof in a Title VII case by reducing or converting the burden of production on the part of the defendant into a burden of proof.

The third contention, unsupported by our examination, is that Judge Alito's civil rights record is out of the mainstream. Judge Alito participated in 121 Third Circuit panels that decided cases that may be termed in the traditional sense civil rights cases. Now, one would expect that if someone were out of the mainstream that by definition, he would rarely agree with his colleagues on the Third Circuit and moreover, you'd expect that he would almost never agree with his Democratic colleagues and would vote overwhelmingly with his Republican colleagues.

But an examination of Judge Alito's extensive record on the Third Circuit shows that his co-panelists on civil rights cases actually agreed with his written opinions and votes 94 percent of the time, and that's whether or not these panelists were Republican or Democrat, and in fact, produced unanimous decisions 90 percent of the time. Moreover, judges appointed by Democratic presidents actually agreed with Judge Alito's civil rights positions at a slightly higher rate than his Republican colleagues, by a margin of 96 percent to 92 percent.

In fact, judges appointed by Democratic presidents Johnson, Carter and Clinton agreed with Judge Alito's civil rights position at the same or a slightly higher rate than judges appointed by President Reagan or either President Bush. Obviously, in order to thoroughly assess Judge Alito's civil rights cases, you have to look at the actual facts and applicable law in each case. But it cannot be credibly stated that Judge Alito is hostile to civil rights, out of the mainstream or extreme, without leveling the same charges against every other judge on the court, whether Republican or Democrat.

I respectfully submit that Judge Alito's 24-year record on matters pertaining to civil rights demonstrates a firm and unwavering commitment to equal protection under the law. And he has a comprehensive and precise understanding of our civil rights laws that will make him an outstanding addition to the Supreme Court.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Commissioner Kirsanow.

Our next witness is Professor Issacharoff, professor of constitutional law at New York University's school of law and author of several books focusing on voting rights and civil procedure. He had taught at the Texas law school. Bachelor's degree from Binghamton University in 1973 and law degree from Yale in 1983.

Thank you for joining us, Professor, and we look forward to your testimony.

ISSACHAROFF: Thank you, Mr. Chairman, Senator Leahy and members of the committee.

I want to direct my remarks to the question of reapportionment cases and the significance of the court's role in overseeing the basic fairness and integrity of our political process. And I raise this issue because reapportionment cases stand for something beyond simply the doctrine of one person, one vote.

They also stand for the role that the court has to play in making sure that the political process doesn't turn in on itself and doesn't close out those who are not able to effectively marshal their votes, their power, their support under the rules that govern the political process. It's significant because no justice of the Supreme Court over the past 35 years has hesitated to assume the responsibilities so well articulated by the Supreme Court in the famous Carolene Products footnote.

Justice Stone, in 1938, on behalf of the Court, recognized a special need for exacting judicial review in the case of laws, and these were his words, "that restrict those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." The reapportionment cases of the 1960s, the cases that appeared to have so deeply concerned Judge Alito as a young man, were the realization of the Carolene Products insights.

In the 40 years that have passed since the reapportionment cases, the Supreme Court has bravely entered into the political thicket. Sometimes the court's role is simply what appears to be routine, such as access to the ballot and the polling place. Sometimes it is truly extraordinary, as with Bush v. Gore. The result of these interventions, although obviously not without controversy, is a political system that is more open and more participatory than at any time in our history.

It is difficult to imagine in this day and age any serious objection to the rights identified in these cases. In Reynolds v. Sims, for example, Chief Justice Warren wrote that "Full and effective participation by all citizens in state government requires that each citizen have an equally effective voice in the election of members of his state legislature." But it is also well to recall the facts presented in these cases.

The willful failure to reapportion had transformed American legislative districts into grossly unrepresentative institutions in which voters of the growing cities and suburbs found themselves unable to participate effectively in a political process controlled by rural minorities. In Alabama, the site of Reynolds v. Sims, one county had 41 times as many representatives per person as another. That pattern was repeated across the country. In California, to pick just one, Los Angeles County had one state senator, as did another county with 1/100 of its population.

While the basic principle of "one person, one vote" may now be so deeply embedded in our culture as to seemingly defy any controversy, its implementation was another matter. And I think that's what's significant about these cases. Those whose votes were miscounted to the point of irrelevance were repeatedly frustrated by entrenched political power. The intervention of the Supreme Court was indispensable. Indeed, it was the single most successful remedial effort by the Supreme Court in our history. It changed and made fundamentally more democratic the legislative process, and it made the legislative process one that was deserving of judicial deference.

When I teach these cases today to students, however, and even when I was a law student in the early 1980s, the idea of "one person, one vote" appears so elemental, so in keeping with the most rudimentary sense of democracy and legitimacy, that students cannot even fathom that a democratic society could be organized on any other basis.

I do not know how a young college student in 1970 might have reacted, particularly when presented with the formidable writings of Alexander Bickel. Bickel captured well the tension between a commitment to popular sovereignty and the overriding commands of the constitution. And it is well to remember that, although we turn our attention here to the court, it is obviously the Congress that is a significant and major institution expanding our democratic horizons, as with the Voting Rights Act of 1965.

Nonetheless, I would suggest the fact that the reapportionment cases should appear on a job application in the 1980s as at least a curiosity. Perhaps it was the recounting of an intellectual path, but perhaps an indication of a continuing view that courts have no business in checking the abuses of political power. If it is the latter, it should be deeply troubling to this committee and to the Senate. For the issue of the day is not the intellectual trajectory of a thoughtful college student, but the implications for the vital role the Supreme Court plays in our democratic life.

Critical issues in the organization of our democracy remain unsettled and are going to appear as they do before the court. Our system of redistricting has run amok, the competitive lifeblood drained by perpetuating insiders. This may prove to be the same sort of structural obstacle to democratic reform as had to be dislodged by the reapportionment decisions of 40 years ago.

The answer may not be simple, but the role of the court is absolutely critical. So, too, with campaign finance, so, too with even the mechanics of our electoral system. In all of these areas, there is reason to doubt that incumbent officials are able to fix the political process that elected them. As Justice Scalia has wisely cautioned, "the first instinct of power is the retention of power."

While not without controversy or difficulty, our collective experience over the past 40 years confirms that the nation is much the better for the robust attention of the court to the health of our democracy. I would suggest to this committee and to the Senate that before confirming any nominee to the Supreme Court, the Senate of the United States should be able to conclude with confidence that, regardless how a nominee may vote on any given case, he or she will assume the full responsibility of protecting the integrity of our democratic processes. Thank you, Mr. Chairman.

SPECTER: Thank you, Professor.

Our next witness is Mr. Carter Phillips, one of the premier appellate lawyers in the country. He has handled some 47 cases before the Supreme Court of the United States, some of those as assistant to former Solicitor General Rex Lee. He's a graduate of Northwestern School of Law, a clerk for Chief Justice Warren Berger and rated as one of the 100 best lawyers in America by the National Law Journal.

At your hourly rate, Mr. Phillips, thank you for joining us, and how much does five minutes cost?

PHILLIPS: Well, I won't answer that question, but I will tell you that the law firm has taken a hit today.

Thank you, Mr. Chairman and members of the committee. Often times, it strikes me that baseball metaphors tend to be used at these hearings, but it at least impresses me that perhaps a tennis metaphor is more appropriate at this point.

Based on the testimony of Judge Alito in the last two-and-a-half days and the extraordinarily eloquent testimony of the Third Circuit judges in the last hour or so, it would strike me that we ought to be at the point of "game, set and match." Because it seems to me that there can be no serious question about either the qualifications on ability or ethics or any other standard that this committee would want to use in reviewing the qualifications of Judge Alito to become a Supreme Court Justice.

You have my written testimony. I'm not inclined to repeat it at this point. One thing I have learned as an appellate advocate is if you think you're ahead on points, you do well to sit down and shut up. So all I'm going to do is simply recount for you my own experiences with Judge Alito when we were in the Solicitor General's Office, not because I think they add all that much, but I do think they debunk the notion that somehow Judge Alito has long been an ideologue of any sort.

The judge and I met when we both interviewed with Judge McCree, who was President Carter's solicitor general. We were interviewing for a job as an assistant to the solicitor general. We had applied to that position prior to the election. Neither of us knew which direction that election was going to come out. We were seeking that position not because we had any kind of an agenda to fill, but solely because each of us hoped to get a very prestigious position.

Now, as it happened in that first meeting, Judge Alito and I happened to get seated together by ourselves, when all of the other members of the Solicitor General's Office went off to another table. And we had what I think is fairly described as at least a little bit of an uncomfortable conversation, because we assumed we were competing for exactly the same job, and had a very interesting exchange of views about our backgrounds and our experiences, he being an existing assistant U.S. attorney with an extraordinary amount of experience as an appellate lawyer, I being a former law clerk and, at that time, an assistant professor of law.

But we built a great friendship based on that conversation and the fact that we both ended up in the Solicitor General's Office. But what struck me is that whether or not the solicitor general had been Wade McCree or whether as it turned out the solicitor general was Rex Lee, our service to the United States would have been precisely the same. The only other thing I would say in that regard is that during the three-plus years that I served with Judge Alito in that office, I had an opportunity to talk with him almost every day.

And in that capacity, I learned an enormous amount from him about both his compassion and his intellect and his open-mindedness and his enthusiasm to assist all of the lawyers in that office. He was a great lawyer, he was a tremendous oral advocate. He went on, obviously, to a very distinguished career. While I have my own opinions about what he's accomplished on the Third Circuit, it seems to me I cannot add to the eloquence of what's already been said by the judges of that court. I would simply urge this committee to confirm this justice.

SPECTER: Thank you very much, Mr. Phillips.

Professor Goodwin Liu is an expert in constitutional law, civil rights and the Supreme Court at the University of California Boalt Hall. He is a graduate of Stanford with a bachelor's degree, and masters from Oxford, and a law degree from Yale law school in 1998. He served as a law clerk for Supreme Court Justice Ruth Bader Ginsburg during the October 2000 term.

Thank you for coming in today, Professor Liu, and we look forward to your testimony.

LIU: Thank you, Mr. Chairman. I'm very honored to be here today.

I agree with all of my fellow panelists that Samuel Alito has a very talented legal mind. I have read over 50 of his opinions. They are very sharp, analytical, intellectually honest. But if intellect alone were enough, then these hearings would be unnecessary.

We care about the judicial philosophy of the nominee, and so to prepare for these hearings, I studied Judge Alito's opinions on individual rights versus government power. His record is enormous, and, Mr. Chairman, as you've said, cherry-picking cases is not very informative. Neither is it very informative to look at the entire run of all cases. What is informative, I think, is a look at the closest, most contested cases, cases where judges on a panel disagreed.

These are the cases most like the ones at the Supreme Court, the law is less clear, and judges have to show their stripes.

LIU: I don't think Judge Alito is an ideologue, but I think it's important to see what the record says. So I looked at several areas where government wields great power -- Immigration, the Fourth Amendment, criminal prosecution. In these areas Judge Alito sat on 52 panels that divided between the individual and the government. He voted for the individual only four times; three times joining an embanked majority, one time writing in dissent. In the other 48 cases he sided with the government. This includes all 13 cases on the Fourth Amendment, all eight cases involving erroneous jury instructions, all four cases involving the death penalty. On 13 occasions his vote for the government was a dissent from an opinion written or joined by a Republican colleague.

Most of the counter-examples cited in these hearings are not terribly illuminating. The constitutional violations were clear, the holdings were unanimous.

In the contested cases Judge Alito agreed with the government over 90 percent of the time, far more often than other appellate judges in similar cases, even those appointed by Republican presidents.

Now these figures are not dispositive. Every case is different and I'm sure Judge Alito got it right many times. But let me give three examples that show his instinct, I think, to defer to government power.

The first is a memo he wrote in 1984 as assistant to the solicitor general, analyzing a case where police saw a burglary suspect running across a backyard. The suspect reached a fence and an officer called out, police, halt! When the suspect tried to climb the fence, the officer shot him in the back of the head, killing him. The suspect, Edward Garner, was an eighth grader with a stolen purse and $10 on his body. He was not armed, and the officer did not think he was. The sole reason for his killing was to prevent his escape. Judge Alito's memo, speaking for no one but himself said, I think the shooting can be justified as reasonable within the meaning of the Fourth Amendment. In a remarkable passage he argued that using deadly force to stop a fleeing suspect rests on, and I quote, "the general principle that the state is justified in using whatever force is necessary to enforce its laws." In 1985 the Supreme Court rejected this view.

Second, in a 2004 case, the FBI installed a secret video camera in a suspect's hotel room. This was done without a warrant on the ground that the FBI turned on the camera only when the target allowed an undercover informant into the room. Judge Alito accepted this logic, even though the camera remained in the room day and night. The dissent called the surveillance Orwellian, limited only by the government's self-imposed restraint. Judge Alito seemed not to grasp that the concept of a warrant puts a judge between the citizen and the police precisely because our privacy is too precious to entrust to law enforcement alone. The NSA program of warrant-less eavesdropping is also being defended by assurances of executive self-restraint.

Finally, in 1997, there was a capital case where two Reagan appointees, both former prosecutors, found a misleading jury instruction unconstitutional. Judge Alito said the instruction was ambiguous and inadvisable, but adequate to convict the defendant of first-degree murder. He also said the court should not have heard the claim at all because defense lawyers did not argue it in prior appeals. But the state never raised this argument to the inmate's claim. Judge Alito raised it himself. The court chided him for nearly crossing the line between a judge and an advocate.

Civil liberties are sometimes seen as obstacles to law enforcement, but as Justice Frankfurter once said, the safeguards of liberty are often forced in cases involving not very nice people.

Mr. Chairman, liberty is not safe in an America where police can shoot and kill an unarmed boy to stop him from escaping with a stolen purse, where judges occasionally aid prosecutions by raising arguments that the state itself did not raise, and where the FBI can install a camera where you sleep on the promise that they won't turn it on unless they have to.

Mr. Chairman, this isn't the America we know and it isn't the America we aspire to be. Thank you, Mr. Chairman.

SPECTER: Thank you, Professor Liu.

Mr. Phillips, how would you evaluate the comments Professor Liu has made?

PHILLIPS: Well, with respect to the memorandum to the solicitor general, I think the notion that that's an individual opinion is not a very apt description, or at least what I viewed my role when I was an assistant to the solicitor general. What we did in that context and in this particular case, what he was doing was proposing that an amicus brief be filed on behalf of the United States in support of the state of Tennessee's position. And that process, you know, you -- I mean it may be that that sentence, and I don't know the context of it to understand it completely, but at that stage all he's doing is proposing that a brief be filed. It would be interesting to see what the ultimate brief said and whether or not it staked out a position quite as aggressive. But because that's part of the deliberative process that goes on, it's the same deliberative process that goes on with respect to the courts.

You know, I mean, I don't disagree that it makes sense to look at the most contentious cases as a legitimate way to examine that, but again, I don't think you can take -- and I do think this is the classic instance of cherry picking. I don't think you can take out one or two specific examples and say this somehow reflects anything about the body of work of a judge who has been on the bench for 15 years and in the face of the testimony we just heard from colleagues of his who spent literally more than decades with him and whose view is that he comes to each case with an open mind and thoroughly analyzes each one and performs this is in a bottom up, not a top down process.

SPECTER: Ms. Axlerod, you know Judge Alito extensively. How would you respond to Professor Liu's testimony?

AXELROD: Well, I had the same reaction concerning the first case that was mentioned when he was in a role as an advocate and was trying to come up with the different perspectives that you would bring to a case as an advocate for the government where your job is to figure out whether or not you're going to be supporting the result below. He was doing his job. And he was doing it appropriately.

And the other cases, I think you have to look at cases more closely than you can in basically a sound byte during a few-minute presentation. You have to look at the arguments that were made on both sides. You have to look at what the standard of review was. You need to see the facts. And I'm sure that the professor analyzed these cases ably, but I would not be persuaded simply by a short summary of them, that the reasoning was unfounded, even if I disagreed with it, which I very well might have without seeing more.

SPECTER: Commissioner Kirsanow, what is your evaluation of Judge Alito's record as it applies to civil rights issues with African Americans?

KIRSANOW: Well, it's -- as I indicated before, it is exemplary. We took a look at several hundred cases -- 121 specifically, and we drew a very broad net to encompass the broadest definition of civil rights possible. But also, we also drew a more narrow net for the more traditional civil rights cases.

The Title Seven cases, where it's more likely that you're going to find an African American plaintiff. And what we saw there is, and I'd refer to Ray v. Marriott. I think it's emblematic of the kind of approach Judge Alito has. He's very precise. Earlier on I heard testimony with respect to is he in favor of the little guy or the big guy? And I think I would hearken back to Judge Alito's opening, where he says that no one is either above the law or below the law.

I don't think that he's outcome driven. He's looking at upholding the law, whether or not that redounds to the benefit of the big guy or the little guy. And I think that's the classic example of someone who hues closely to the most profound protections of civil rights.

SPECTER: Professor Issacharoff, is there any doubt in your mind that Judge Alito will uphold the one man, one vote rule?

ISSACHAROFF: I don't think there's any doubt that he would uphold the one person, one vote as an abstract matter. I think that the broader question that's raised by his earlier comments -- and I heard nothing in these hearings that really addressed this -- is a deeper one about the role of the court in checking the abuses of incumbent power. And so while I don't in any way question that he has as much as all the rest of us have internalized the one person, one vote principle, my reservations would be on the willingness to use judicial power to check malfunctions in the political process.

SPECTER: Professor Gerhardt, you say that the Senate ought to be an active participant in the selection of Supreme Court justices. To what extent do you think that with a heavy campaign on the judicial issue, the president has latitude to pick judges as he wants to on the political spectrum, and how could the Senate really effectuate your idea?

GERHARDT: I think the idea I'm describing is the system that we've got. I don't mean to suggest a different kind of system, Senator. The president may do exactly as you suggest, pick somebody based on whatever criteria he likes.

I'm just suggesting that I think it's perfectly consistent with the structure and history of our constitution for Senators then to provide an independent judgment of his criteria and to assess them on whatever other criteria they think are appropriate.

SPECTER: Red light went on during your answer.

LEAHY: I think he was referring to myself, professor, good to see you again.

If I could, I just want to follow up on Professor Issacharoff -- and it was nice to meet your sun Lucas (ph) here earlier. That way his name is in the transcript.

ISSACHAROFF: Thank you, Senator.

LEAHY: You know, we've talked about the '85 job application of then Sam Alito for a job in Ed Meese's Justice Department. He stated he developed an interest in constitutional law, motivated in large part -- in large part by a disagreement with the Warren court decision's, particularly in the areas of reapportionment. Now, in the questions he was asked here, he retreated from that unqualified disagreement and said it was based on certain details of later Warren court decisions, like the 1969 case of Kirkpatrick v. Priesler. Does that seem credible that he was telling Mr. Meese in 1985 that in 1969 as a young college student so incensed by the Kirkpatrick case, it motivated him to study constitutional law?

ISSACHAROFF: I think the Kirkpatrick case may have had some impact in the Alito household because of the particular role that his father played, but his statement refers to an intellectual excitement based on the writings of Professor Bickel of Yale. Professor Bickel was not concerned about the implementation of one person, one vote. Professor Bickel was concerned, as was Justice Harlan at the time, that the court should have no business in this area whatsoever, that whatever the political process did, whatever the malfunctions of politics might be, the courts simply were not to be engaged in that process. That's the idea that was animating Professor Bickel and one has to assume was animating the young Sam Alito.

LEAHY: And, of course, Justice Harlan was one of his heroes. If we follow that idea of Harlan's dissent and others, we wouldn't have had reapportionment around this country, would we? Unless reapportionment done politically by those who would reapportion themselves out of office.

ISSACHAROFF: The history of the United States was that for the 20th Century until we got these cases in the 1960s, incumbent officials simply did not reapportion. They had a constitutional duty, including this body in the 1920s, the Congress, the Senate of the United States decided not to reapportion. The Congress simply said, why should we reapportion ourselves out of business? We'll just refuse. Even though we had a constitutional obligation. The lesson was that when power decides to close in on itself and pull the ladders up behind it, the courts have to be there.

Professor Bickel was deeply disturbed by this, and when I read in 1985 that somebody is saying that that's what brought me to constitutional law, it opens questions. I don't have an answer, but it certainly, I do find it puzzling.

LEAHY: Thank you.

And Professor Liu, listening to the two cases you described, the 10-year-old boy shot in the back while -- by an officer who didn't believe he was armed and in any event he wasn't coming at the officer, he was leaving. TV and the (inaudible), these things really bother me. And you now have the merging story that the president may have violated -- actually Congressional Research Service believes he has and ordered others to violate the criminal provisions of the Foreign Intelligence Surveillance Act by spying on Americans. Do you think, from what you've seen here today we should take great comfort that a potential Justice Alito would stand up to the president on those kind of issues?

I look at how deferential he's been to law enforcement and I served in law enforcement as did I chairman. I have a very soft, warm part in my heart for law enforcement. The only thing in my office that has my name on it is my shield from when I was in law enforcement, but doesn't this bother you?

LIU: Well, Senator Leahy, it does. And I won't venture any predictions as to how he would perform as a justice, but I would say that what he urged the committee to do was to believe that he would behave as a justice as he's behaved as a 3rd Circuit judge.

Let me say one thing about the memo. This memo that he wrote in 1984 is about 13, 14 pages long. The first 10 pages of the memorandum contain his own personal individual analysis of this case. I urge all members of the committee to read it, if only to discover that he uses the first-person throughout the first 10 pages of the memo. Only in the last three pages does he discuss whether or not the United States government should file an amicus brief on the side of the state of Tennessee. And what is ironic about the last three pages is that he observes that all federal agencies prohibit precisely this kind of use of deadly force. And that is one of the reasons why he urged against participation amicus participation in this case, because the United States government would be put to a difficult position to show that it really meant the rule that he would have urged.

LEAHY: Thank you.

Professor Gerhardt, I'm going to send you a letter. I had another question for you. I found very instructive your quick history lesson, as I have when you've given longer ones. Thank you, sir.

Thank you, Mr. Chairman. I apologize. I'm going to have to leave at this point for a while, but I know you've got everything under control.

SPECTER: Thank you, Senator Leahy.

Senator Kyl?

KYL: Mr. Chairman, let me just thank the witnesses for being here. I just am moved to make one comment. I can't dispute the analysis of individual items here, but I think in law we're all familiar with the best evidence rule. And the best evidence of how Judge Alito would serve on the United States Supreme Court, it seems to me is not something that might have motivated him to be interested in the law 30 some years ago or something he even wrote as a young lawyer working in the administration, but rather his 15 years on the bench, number one; and secondly, how his colleagues have viewed his character as well as his judicial performance.

We've had almost three days to query him about all manner of issues. And I think to try to use the phrase cherry pick a particular comment that was made in a much different kind of context and read into that something more powerful than all of the other best evidence that we have is a real stretch. I'll just put it that way.

I nonetheless appreciate the effort that all of you have made to be here to enlighten us in these hearings. And I thank you for your testimony.

SPECTER: Thank you very much, Senator Kyl.

Senator Kennedy?

KENNEDY: Thank you, Mr. Chairman.

I was reminded of an extraordinary observation the other day, and that was that Robert Bork and Ruth Bader Ginsburg agreed 91 percent of time. It was the 9 percent when they differed, which was the major differences. That's something that I think sometimes we lose track of here when we're looking at overall statistics, overall figures. It's the dissents. And it is the close dissents, as the Professor Liu has pointed out, that really indicate on these enormously sensitive issues involving race, involving the disabled, involving women, that so much of a judge's philosophy comes out.

I'm interested in, professor, just if you'd talk a little bit about the jury selection cases. We've considered the two that Judge Alito was most involved in. One, which is pretty boilerplate and understand the Brinson v. Vaughn case and then the dramatic Riley v. Taylor case, which is just extraordinary and I think enormously distressful to many. I'd be interested if you would just talk about both and give us your assessment.

LIU: Sure. Well, Riley v. Taylor has been discussed in these hearings. That was a case that concerned a challenge to racial discrimination in jury selection in the Dover County Court. It was shown that over the course of four murder trials within the same year, including the defendants in the case, the prosecution had struck every black potential juror to serve on a murder -- on a capital jury.

And the case was originally decided, actually, with Judge Alito in the majority, but it was then embanked, and the Judge Sloviter ended up with the majority opinion, basically finding that this pattern, in addition to other evidence in the record, showed racial discrimination of the jury. Judge Alito dissented from that view and I think the sentence I think that is most disturbing is his comparison of that pattern to the right or left handedness of presidents. And he went further to say that absent a careful multiple regression analysis -- I can barely say it -- we can't infer from the statistical pattern any racial discrimination.

Now, when the Brinson v. Vaughn case came along three or four years later -- that was I believe a 2005 case in which there was a pattern of 13, I believe, out of 14 black jurors being struck. And Judge Alito wrote a unanimous opinion, finding rarely discrimination in that case. What is interesting about that case is that he relies on a prior case of the 3rd Circuit, called Holloway v. Horne (ph) which relies in turn on Riley v. Taylor.

KENNEDY: Could you just in the very short time, in looking through the cases on these dissents, in areas where Judge Alito took away the effect of a decision of a trial court to have a jury trial, the number of cases that he took away from the trial court and the number of cases that he took after there had been a jury trial on appeal where he ruled against the individual on that, effectively overriding or overruling the trial court, number in both of those areas is some rather significant cases. We haven't got a lot of time here, but I think you get what I'm driving at in terms of the respect for the trial court and the jury verdict, whether you feel from your own kind of analysis the appropriate kind of respect and tradition for that.

LIU: Well, I think one area in which there is a -- to my mind at least -- a somewhat disconcerting pattern is in the Fourth Amendment context. You know, much has been said about, for example, the Doe v. Groody case. What I find puzzling about that case is, it is not that there is nothing to Judge Alito's position. I think if you read...

KENNEDY: This is the strip searching of the child.

LIU: His opinion actually is like all of his opinions, incredibly well-reasoned, very thoughtful, it is not at all disparaging to the girl or her mother who was found to be illegally searched. What is interesting to me is that in that case there is the availability of two competing interpretive principles. One is read the four corners of the warrant for what it says. The other is supplement the four corners of the warrant with underlying material that is questionable at least in terms of whether or not it is incorporated.

Given the important dignity at interests in Doe v. Groody, it just strikes me as puzzling, why he would have chosen the second interpretive device rather than the first; and the second one is the one that that took the case out of the jury's hands to determine whether or not the search was or was not reasonable.

KENNEDY: This is the one where Judge Chertoff took exception to Judge Alito.

Thank you very much. My time is up.

SPECTER: Thank you, Senator Kennedy.

Senator Sessions?

SESSIONS: Well on the Doe case, Mr. Phillips, Doe v. Groody, this was a question involving a lawsuit you as a solicitor general, you've had to defend law officers of personal damages, you're being sued. At best there was an appearance, was it not, that this affidavit was in fact made a part of the warrant because the magistrate judge intended it so and said it.

PHILLIPS: Senator Sessions, that is to the least of my mind a complete answer to the professor's argument, which is this doesn't have anything to do with two different analytical approaches. It has to do with how do you apply qualified immunity and what deference do you owe to the individual officer who is in a very precarious position, making decisions on the fly.

You know, I think if you read the opinion, it's quite, as I said, scholarly, thoughtful, analytical, almost apologetic with respect to the consequences to the individuals involved, but still recognizing at the end that qualified immunity is designed to provide precisely the kind of gate keeping function that the court exercised there in order to take those kinds of issues away from the jury because that's the only way you can protect the greater societal interests that are implicated.

SESSIONS: So he did a search warrant on a house where dope dealers were there and he followed the instructions of the magistrate. They conducted a search of the young girl in a private chamber by a woman officer without removing all of her clothes, just pulling down her outer garments and a blouse up, apparently. And from the indications of the magistrate, that was permitted. And so, the question was was he acting within the line or scope of his employment and was this officer subject to personal suit for money damages. Isn't that correct? 

PHILLIPS: That's absolutely right, Senator. 

SESSIONS: Well, I'm telling you our police officers have a hard enough time understanding these laws of search and seizure. They are very complicated. And the judges throw out searches all the time when they're not proper. But to sue the officer who's trying to do the right thing, I think, Judge Chertoff was in error. And I'd like to see him back on here. I'll serve the U.S. attorney with him. I'll ask him about that case. I think Judge Alito was correct. Maybe he was not. But I think he had a good basis for that decision. And I'm concerned about it. 

And Mr. Liu, with regard to the Kithcart case in your written opinion here, you quote a dissenting opinion from Judge McKee that said that this is where you criticize Judge Alito for holding that there was not a basis for arresting a black individual who was in a black sports car after some armed robberies that occurred. So that was the message apparently that went out. And the officers stopped the car and arrested this individual. 

He was black in a black sports car. And the judge said that's not enough. That's basically racial profiling. And he left open, as I understand, the question of whether or not the stop was legitimate. And this judge -- correct me if I'm wrong. And maybe some of you prosecutors would jump in. But Judge McKee you quote favorably here. He said, "Just as the record fails to establish that Officer Nelson had probable cause to arrest any black male who happened to drive by in a sports car, it also fails to establish reasonable suspicion to justify stopping any and all such cars that happen to contain a black male. 

Now, isn't there quite a difference of proof standard between the authority of an officer to arrest someone and the authority of an officer to do an investigative stop? Isn't that clearly a different standard? And wasn't Judge Alito correct to suggest that there's a different standard for the investigative stop than it is to arrest someone? 

LIU: I think that's true, Senator Sessions. There is definitely a difference of standards. One is a reasonable suspicion standard. The other is a probably cause standard. 

In this case, I want to be absolutely clear in my testimony. I'm not criticizing Judge Alito for his result. I'm saying he's correct, but Judge McKee is saying that he didn't go far enough. Judge McKee is dissenting to the other side of Judge Alito by saying that by the same logic that racial profiling prohibits the probable cause finding, it also prohibits the reasonable suspicion finding. 

SESSIONS: Well, in that I think the law is clearly to the contrary. I think officers who have that kind of information can at least stop a vehicle. At least there's certainly far more authority to do that than it is. And the standard is different, pretty clearly. 

Thank you, Mr. Chairman. I won't... 

SPECTER: Thank you very much, Senator Sessions. 

Senator Biden? 

BIDEN: Mr. Gerhardt, I'm just curious. Was that the case you cited about the Hoover administration? Was that when Senator Bora (ph) went down -- it's been said to -- it's a good answer, I think, to the chairman. Senator Bora (ph) went down. And when he was given a list of 10 people, looked at the list. To the president he said, "It's a great list, Mr. President, but you have it upside down." And that's how you get the message because when presidents actually consult, you do have an impact. 

Let me ask a question, Mr. Gerhardt. And I understand if you don't want to answer it. But where do you think on the spectrum of the present court, if Judge Alito is confirmed, he will end up? 

GERHARDT: It's a great... 

BIDEN: That's guessing. But, I mean, what's your best judgment? 

GERHARDT: It's a great question, Senator, and obviously I think it's one of the central questions in these hearings. I can tell you this much. I know how the president answers that. The president said he wanted to nominate somebody in the mold of Justice Scalia and Justice Thomas. And I think one of the questions in these hearings has been the extent to which, for instance, Judge Alito is going to be perhaps more like those justices or perhaps like some other justices, maybe Justice O'Connor or Justice Harlan, as he suggested. 

And so, if he is going to fit that mold, then obviously the balance shifts in a number of important cases in a certain direction. But if he's not, then, of course, it's going to be harder to predict. 

I might venture at least this much. I think that if he is truly going to be a bottom-up judge, as he suggests, then I think the shift is not going to be that great. In other words, the shift will be more modest. That's the critical thing. 

The critical thing about being a bottom-up judge is that that is the essence of modesty. There's very little margin or error when you're a judge and you're a bottom-up judge. But if you turn out to be a top-down judge, there's a greater potential for a margin of error. And so, if he does turn out to be more like Justice Thomas and Justice Scalia, there's greater possibility for error. 

BIDEN: Well, there'll be an awful lot of disappointed folks in Washington and in the nation if he turns out to be like Justice O'Connor. A lot of people will be very upset who are supporting him now. 

But let me ask, if I may, anyone who'd like to respond on the panel. One of my greatest concerns is -- and I must tell you I have diminishing regard for the efficacy of hearings on judicial nominees in terms of getting at the truth. I'm not in any way implying... 

(UNKNOWN): Based on the panel? 

BIDEN: Yes. No, no, I'm not in any way implying -- across the board, Democratic nominees, Republican nominees. You know, it goes to this issue, in my view, of do the people have a right to know what they're about to put on the bench. And the part that concerned me the most, I must tell you, is the judge's comments on or failure to comment on the -- at least in my view a clear understanding of what he means by the unitary executive. 

It seems very different than what others think unitary executive means and scholars that I'm aware of and his discussion about or failure to respond to what is now a very much animated debate about whether or not the president can wage war without the consent of or authority from the Congress and whether or not, as the administration argues, the war powers clause only gives the Congress the power to declare war if it wants to when the president doesn't want to go to war, which is the most extreme reading I have heard other than one occasion in the Bush one administration. 

So does anyone here have any doubt that there's a need for the president absent in the danger to get the consent of the Congress before he were to invade Iraq or Syria tomorrow? Or does the president have the authority tomorrow, based on his judgment, to raid Iraq and Syria, to invade Iraq and Syria? Anybody want to venture an opinion on that? 

ISSACHAROFF: I think, Senator Biden, that the lesson of the steel seizure case and including Judge Alito's invocation of Justice Jackson's opinion in that case, is that the president acts at tremendous constitutional peril when he acts contrary to the express wishes of Congress and acts at significant constitutional peril when he acts absent congressional authority unless there is true military exigency of the moment. I think that that's fairly well established. 

That's been the history of the relationship between Congress and the executive. It's been a difficult history. And the question of how much authorization Congress has given is a repeated issue before the courts and has been since the Civil War cases. But I don't think that there's any doubt on this question constitutionally. 

BIDEN: Thank you, Mr. Chairman. My time's up. 

SPECTER: Thank you, Senator Biden. 

Senator Cornyn? 

CORNYN: Thank you, Mr. Chairman. 

I guess I just have to express some reservations at trying to predict how Judge Alito's going to rule on the bench. I can think of famous examples where President George Herbert Walker Bush thought David Souter was going to be of a particular frame of mind or approach on the bench. I guess, who was it, Richard Nixon probably had some ideas about Harry Blackmun. And President Eisenhower had some ideas about Earl Warren. 

I mean, this is -- judicial independence means something. And what it hopefully means is that exactly what the framers intended in terms of providing the flexibility, the freedom, the independence. They have life tenure. We can't cut their salary. You know, who knows? I mean, this is, I guess, a debate only lawyers can love. But it's important. But I just don't know how we can answer the question comprehensively. 

Professor Issacharoff, it's good to see you again. Of course, I got to know you during your tenure at the University of Texas Law School before you came up North to NYU. But I wanted to -- you know, there's been some questions about Judge Alito's statements back about his concerns about the Warren court decisions on reapportionment. And you alluded to that in your testimony. 

And, you know, the fact is our nation has a checkered history, doesn't it, in terms of enfranchising people, making sure that everyone's vote counts roughly the same? Back, I guess, at the beginning of our nation, people had to have property before they could vote. We know that some people couldn't vote at all -- African Americans. And we fought a Civil War and amended the Constitution on that. And we know that there is even today the Texas congressional redistricting case is pending before the United States Supreme Court. 

But just to -- this remains the subject of a lot of interest and a lot of controversy. But I just want to make sure that we are not guilty, those of us on this side of the dais, about overstating or reading too much, I should say, into what Judge Alito has said. He said in college he was motivated by a deep interest in constitutional law, motivated in large part by disagreement with Warren court decisions, particularly in the areas of criminal procedure, the establishment clause and reapportionment. Let's talk about reapportionment, which is, I know, one of your passions and expertise. 

It wasn't until 1962 when the Supreme Court decided that those issues were justiciable in the first place. Wouldn't that have been Baker v. Carr? 

ISSACHAROFF: That's correct, Senator. 

CORNYN: And then the principle of one person, one vote was decided in Reynolds v. Simms in 1964, I believe. Is that the right time and the right case? 

ISSACHAROFF: Yes, yes. 

CORNYN: And, of course, notwithstanding what some have tried to make out of what Judge Alito said, he's testified here and other areas that he considers one person, one vote a bedrock of our democracy. And he's said that's -- you know, everybody believes that. At least every American believes that today, although it was fairly controversial not that many decades ago, or at least in terms of the courts' role. 

What he did say -- and I want to get your comment on this -- is that -- and maybe it was because of his father's experience, as you alluded to a little bit -- that strict numerical precision in terms of the size of districts, whether they be for city councilmen, whether it be for state representative, state senator or congressman or whatever. There's sort of the troublesome issue of how do you deal with things like municipal boundaries and communities of interest, lines that ordinarily you would think define those communities of interest in a way that you just don't want to run roughshod over. Is that a legitimate consideration on the way to try to achieving that goal of one person, one vote? Or is that just bogus? 

ISSACHAROFF: I think, Senator -- and I still have the temptation to refer to you as Justice Cornyn. But, Senator, I think that it is absolutely a legitimate concern. I think that one person, one vote turns out to do two things. One, it's emblematic. It's our aspiration that everybody be equal in the political process. And secondarily and perhaps more importantly, it serves as a check on what those in power can do to try to preserve themselves in power. And that second feature of it has been difficult. 

And the efforts to ratchet up mathematical exactitude have usually come in cases that were about something completely different. For example, in the New Jersey case in the mid-1980s, Karcher v. Daggett, the real issue was a partisan gerrymander. And everybody understood that. And the court didn't know what to do about it. Justices had trouble with that issue for the decade since. And so, it fell back on this extraordinary mathematical exactitude, which, in fact, is completely illusory because the census isn't that precise. 

So I agree with you fully. I don't think that that was where the controversy had moved in the late 1960s. I'd stay by that statement. But nonetheless, you're absolutely right that this is a legitimate source of concern. 

CORNYN: Professor, thank you. My time is up. I appreciate your response to my question. Thank you. 

SPECTER: Thank you, Senator Cornyn. 

Senator Coburn? 

COBURN: Thank you, Mr. Chairman. 

I've been listening. I was not here for all of it, but I was paying attention by the video screen in the back room. And just some observations. 

You know, I live on Capitol Hill with two Democrats. And the thing that's normally asked of them is how can you live with that guy. You know? And their answer is you don't know his heart. And then I get asked the same thing. How can you live with those two guys? And I say you don't know his heart. 

And it strikes me as I look at this panel, the three people who testified favorably for Judge Alito know him. And the three people who didn't testify, who testified somewhat negatively about Judge Alito don't know him. They've read some of his cases, not all of his cases. 

And so, it just kind of strikes me that one of the most valuable pieces of information that this committee has gotten from outside witnesses was the judge panel that came before you, the people that have worked with him for over a decade, worked with him in a closed room. I believe they know his heart. And I believe anyone in this room you can take anything that we've written at some time or said at some time and you can make each of us look terrible. And I would just -- I only have really one question. And that's for Professor Liu. 

How do you explain the fact that Judge Lewis, who is adamant about Title 7 of the Civil Rights Act, his observations about Judge Alito are completely contrary to yours? How do you explain that? Here's a guy that knows him. Here's a guy that has very liberal leanings in terms of the political spectrum. Here's a guy that is basing his whole legal career on civil rights. And yet he says I know this man, and there's not a bit of truth in any bias or any direction that he goes. How do you explain that? 

LIU: Well, Senator Coburn, I certainly can't dispute Judge Lewis' account or views on Judge Alito. I understood the previous panel to be testifying to the integrity and intellectual honesty of the nominee, none of which I dispute. In fact, I conceded in the very first sentence of my testimony that I find him also to be an intellectually honest person. 

My only viewpoint, I guess, that I'm offering is not really a viewpoint at all. What I'm trying to simply urge is that some attention be paid to his record and that the record speaks for itself. And it doesn't speak to the nominee's intellectual -- any negatives regarding the nominee's intellectual honesty. Rather, I think, it speaks more to the set of values or instincts or the intangible qualities of judging, I think, that every judge, every human being brings into the world. 

It is not that any judge decides to go about any case saying I come in with this bias or I come in with that bias. I grant that Judge Alito, like every judge, tries to be impartial. But every judge also has a set of instincts, a central tendency. And I think it can be revealed, not definitively, but it can be revealed by looking at patterns across large numbers of cases. 

COBURN: And you looked at 50 cases of his? Is that correct? 

LIU: Well, I've actually looked at more, but the cases that I've... 

COBURN: How many more? How many more? 

LIU: I've probably looked at 60 or 70 cases. 

COBURN: Out of 4,000? 

LIU: Out of the 360 that he's written. 

COBURN: Written opinions on, but he still has adjudicated over 4,000 cases. 

LIU: Certainly, that is true. 

COBURN: All right. 

Thank you, Mr. Chairman. I yield back. 

SPECTER: Thank you, Senator Coburn. 

I had hoped to finish up this evening. But the sense of the proceeding at this point is that it's not a wise thing to do. This panel took an hour and 15 minutes. And projecting with a break, we'd be in the 10:00 range or perhaps even later. That would depend upon how many senators were here to question. And I think in the morning we may have more questions. And I think it is a fair observation that we're not at our best. And we started at nine, so we're in the 10th or 11th hour. And we do have tomorrow to proceed and still meet the schedule that I had announced earlier. 

I know that it's a likely inconvenience to some of the people who were on the later panels. Although nobody on the latter panels, if we were to finish tonight, would be out of this town tonight anyway. So it's really staying over. I know that in making your plans to come here you didn't know whether you'd testify on Thursday or Friday, and nobody else knew whether you'd testify on Thursday or Friday. We tried to follow the Roberts model. But on Roberts we finished up his testimony close to 11:00. And today we didn't start on the outside witnesses until 2:30. That's probably more than you want to know, but I like to tell you what's on my mind. 

I see some of the witnesses on the later panels nodding in affirmative. Nobody seems to be too distressed about calling it a day at 6:36 after starting at 9 a.m. So we will begin tomorrow morning at 9:00. 

KENNEDY: Mr. Chairman, could I enter in the record a letter from the National Association of Women's Lawyers in the appropriate place and then also a letter from Professor Higgenbotham (ph) as well in the appropriate place in the record? 

SPECTER: Certainly, without objection, they will be placed in the record at what we conclude to be an appropriate place after consulting with you. 

Thank you all very much. That concludes our hearing. 

Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved 



Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved