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

CQ Transcriptions
Friday, January 13, 2006; 11:48 AM

JANUARY 13, 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:

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 BECKER,

JUDGE,

U.S. COURT OF APPEALS

ANTHONY SCIRICA,

CHIEF JUDGE OF THE U.S. COURT OF APPEALS

FOR THE 3RD CIRCUIT

MARYANN BARRY,

JUDGE,

U.S. COURT OF APPEALS

RUGGERO 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

EDNA BALL ALEXROD

ATTORNEY AT LAW

LAW OFFICES OF EDNA BALL ALEXLROD

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 hearings for the confirmation of Judge Alito for the Supreme Court of the United States will now reconvene.

I've just been discussing with Senator Leahy the allocation of time, and we had seven judges who testified yesterday who exceeded the five minutes. I thought it the better part of prudence to not bang the gavel, but allow them to go on, but they did take some extra time -- in the seven, eight, nine minute range.

So, I just said to Senator Leahy that we'll give seven of the witnesses selected by Democrats five extra minutes, or he can allocate the time as he chooses. I don't want to split hairs over how much the exact time was.

But I think it's very important to keep the balance, and we did that in the selection of the number -- 30. In the past it had been divided about 18 to 12, with the majority party taking more. But we have worked out the arrangement of 15 to 15, to keep it level.

LEAHY: Mr. Chairman, if I might on that, you have been fair. Ultimately, of course, everything has to be determined based on what the nominee says. But these public witnesses are important in deciding whether we replace Justice Sandra Day O'Connor with Judge Samuel Alito.

I think they help focus, as the witnesses yesterday did, on aspects of his record and events with respect to civil rights and privacy rights. These are long-time pioneers in our nation's sometimes rocky journey toward equal justice and respect for women's rights. They're the people in the frontline today.

We'll hear from representatives of minority communities. We'll have a number of written statements.

And as I've said over and over again, we're the only 18 people who get to ask questions on behalf of 295 million Americans and generations for a long time to come. So I think these hearings are important.

Again, I thank you for your courtesies and your fairness in keeping them going.

SPECTER: Thank you very much, Senator Leahy.

We now turn to our first witness on the panel, on our next panel. Professor Nora Demleitner, from the Hofstra School of Law teaches, teaches and has written widely on criminal, comparative and immigration law, managing editor of the "Federal Sentencing Reporter" and serves on the executive editorial board of the "American Journal of Comparative Law."

Bates graduate, summa cum laude, graduate from the Yale Law School, 1992 -- we have a heavy representation of Yale law graduates here; that's a very healthy thing -- and was symposium editor of the "Yale Law Journal." I didn't know there was a symposium editor. There wasn't one there in my time.

Thank you for joining us, professor, and the floor is yours.

DEMLEITNER: Thank you, Mr. Chairman, Senator Leahy and members of the committee. Good morning, and thank you for the opportunity to testify today. The one thing that I should...

SPECTER: I should have added, professor, that you clerked for Judge Alito after graduating from law school. I think that ought to be on the record.

Start the clock back at five minutes.

DEMLEITNER: I was about to ask that. Thank you very much.

Since the very early days of my clerkship, I must admit that Judge Alito has really become my role model. I do think that he is one of the most brilliant legal minds of our generation -- or of his generation -- and he's a man of great decency, integrity and character.

I say all of this as what I would consider to be a left-leaning Democrat, a woman, obviously, a member of the ACLU and an immigrant. And my view is not one that is unique with regard to people who have worked with him, or with regard to people who have worked for Judge Alito.

All of his clerks, many of whom are politically liberal, have signed on to a letter strongly urging the Senate to confirm Judge Alito as Associate Justice. A number of non-Republican legal academics who have worked with or for Judge Alito have also issued an equally forceful statement on his behalf.

Let me explain to you why I believe that Samuel Alito deserves to sit on the highest court and why his confirmation will, in fact, not pose a threat to the rights of women, to the rights of minorities, immigrants or other vulnerable groups.

Judge Alito does not have a political agenda. He gives very careful consideration to the lower court record and to prior judicial decisions.

Let me point you to two cases that may explain the judge's philosophy. While I clerked for him, he had to decide the case of Parastoo Fatin. Ms. Fatin had left Iran in order, in part, to be escaping the regime of Ayatollah Khomeini. She applied for asylum in the United States, but was denied by the immigration court and by the Board of Immigration Appeals.

Without revealing any confidences, I can tell you that Judge Alito was very much moved by the personal tragedy of the situation and the moral dilemma Ms. Fatin would face. If returned to Iran, she would either be unable to speak her deep feminist convictions, or the Iranian regime would penalize her. The problem with her case was that there was really an absence of favorable case law and, even worse, a very thin record, that indicated only very limited opposition on her part to the Iranian regime.

The judge did not see himself in a position to help Ms. Fatin, who was, however, ultimately permitted to stay in the United States. He, however, did take this opportunity to write one of the most progressive opinions on gender-based asylum law.

His decision was the first to recognize that gender alone could constitute a basis for asylum. This revolution in asylum law has not been widely recognized outside a very small group of asylum practitioners. And neither has Judge Alito gotten a whole lot of credit for garnering the votes of both of his fellow panelists for this decision, one of whom was a Nixon appointee.

The Fatin case hasn't gotten a lot of attention, but you have spent part of the day yesterday on the Rybar case, where Judge Alito dissented. I think you should read the case a little differently than the way in which it has been portrayed. Let me just set the context.

In 1995, the Supreme Court decided Lopez, Justice O'Connor joining the majority, striking down the possession of machine guns on school grounds as unconstitutional. I think a lot of commentators expected this to create a major shift in lower court jurisprudence. This did not happen, I think, in part, because the lower courts read the decision extremely narrowly and, arguably, incorrectly.

Judge Alito, who has been, I think, generally labeled as an anti- criminal defendant judge, was very much willing to follow Supreme Court precedent to the point where it would necessitate the dismissal of a host of criminal indictments. At the same time, he took pains to note that Congress could very easily remedy the problem with the statute by indicating in the record that there was a connection between the possession of machine guns and interstate commerce. Let me also point you to the fact that a blue ribbon ABA task force has increasingly critiqued the increasing federalization of criminal law.

Judge Alito's record, I think, indicates, and Rybar confirms, that he will follow Supreme Court cases very carefully, and that he will read congressional legislation very carefully. He has also used, I think, his prior background experience very effectively in working, for example, on sentencing reform with the Constitution Project and, at one point, as an advisory board member of the "Federal Sentencing Reporter."

I believe, overall, that his criminal background experience will inform the judge's decision, but it will surely not bias him in one way or the other. He'll be able to strike a practical balance that is informed but not predetermined by his background.

And for all those reasons, I believe very strongly that he deserves to be confirmed as the court's next Associate Justice.

SPECTER: Thank you very much, professor.

We now turn to Professor Erwin Chemerinsky, the Austin and Burg Professor of Law and Political Science at Duke.

Prior to coming to Duke in 2004, he had been for 21 years at the University of Southern California Law School, where he was the Irmas Professor of Public Interest Law. He is a graduate of Northwestern University with a bachelor's degree and a law degree from Harvard. And last year, he was named by "Legal Affairs" as one of the top 20 legal thinkers in America.

Thank you for coming in today, professor. The floor is yours.

CHEMERINSKY: Thank you, Mr. Chairman, Senator Leahy, distinguished senators.

It's truly an honor and a privilege to testify at these historic hearings. It's impossible to overstate the importance of this nomination for the future of constitutional law.

In recent years, the Supreme Court is often referred to as the O'Connor court, because Sandra Day O'Connor so often has been in the majority in 5-4 decisions in crucial areas: protecting reproductive freedom, enforcing the separation of church and state, limiting presidential power and advancing racial justice. Replacing her has the possibility of dramatic changes in so many areas of constitutional law.

A crucial question for this committee is, what will be the effect of Samuel Alito on the Supreme Court?

I want to focus on one area: executive power. I choose this area, because no area of constitutional law is likely more important in the years ahead than this.

As you know, in recent years, the Bush administration has made unprecedented claims, expansive presidential power, such as the claim of authority to detain American citizens as enemy combatants without even the Constitution's requirements for warrant, grand jury indictment or trial by jury; the claim of authority to torture human beings in violation of international law; the claim of authority to eavesdrop on conversations of Americans without complying with the Fourth Amendment or the Foreign Intelligence Surveillance Act; the claim of authority to hold American citizens indefinitely, and citizens of other countries indefinitely, as enemy combatants.

My goal here isn't to discuss the merits of any of these issues; instead, to point to the fact that separation of powers is likely to be an enormously important issue in the years ahead. And, of course, there's no need to remind this body of the crucial role the checks and balance separation of powers play in our Constitution's structure.

Some of the most important Supreme Court cases in history have been those where the court has said no to assertions of presidential power, such as Youngstown Sheet and Tube v. Sawyer, in striking down President Truman's seizure of the steel mills, and the United States v. Nixon, in stating that President Nixon had revealed the Watergate tapes.

A key question for this committee is whether Samuel Alito will continue this tradition of enforcing checks and balances, or whether he'll be a rubber stamp for presidential power.

I have carefully read the writings, the speeches and the decisions of Samuel Alito in this area, and they all point in one direction: a very troubling pattern of great deference to executive authority. I have closely followed the hearings this week, and I know you're familiar with the examples.

To mention just a few, in 1984, while in the Solicitor General's Office, Samuel Alito wrote a memo saying that he believed that the Attorney General should have absolute immunity to civil suits or money damages of engaging in illegal wiretapping, a position the Supreme Court rejected, in language that seems so appropriate now, in saying there was too great a danger of violation of rights from (ph) executive officials, when the zeal to protect national security would go too far.

The next year, he said there should be increased use of presidential signing statements. He said, quote, the president should have the last word as to the meaning of statutes, which would be an increase in executive power.

As you know, in a number of writings and speeches, he said he believed in the unitary executive theory. There's a good deal of discussion this week as to what that means.

But if you look at the literature of constitutional law, those who believe in a unitary executive truly want a radical change in American government. They believe that independent regulatory agencies, like the Securities and Exchange Commission or the Federal Communications Commission, are unconstitutional. They believe the Special Prosecutor is unconstitutional. They reject the ability of Congress to limit the executive.

As a judge on the Third Circuit, Judge Alito has not had the opportunity to review resurgence of presidential power. But there have been many cases which considered assertions of law enforcement authority. Over and again he comes down on the side of law enforcement. I think his dissenting opinions are particularly revealing, because as Judge Becker said, he rarely dissents.

One case, I think, shows Judge Alito's overall philosophy. There's one discussed yesterday at the end of the day, Doe v. Groody. This, of course, was the case where the police strip searched a mother and her 10-year-old daughter, who were suspected of no crime. As Carter Phillips said yesterday, this was an issue of qualified immunity. That means, did the officers violate clearly established law that a reasonable law (ph) should know? Should the officer have known that it violates the Constitution?

Senators, any police officer, any judge should know that strip searching a 10-year-old girl, who was suspected of nothing, violated the Constitution. Senators, this is one of so many cases where Judge Alito deferred to law enforcement.

CHEMERINSKY: I am here for a simple reason. I believe that at this point in time, it's too dangerous to have a person like Samuel Alito, with his writings and records on executive power, on the United States Supreme Court.

Thank you.

SPECTER: Thank you very much, professor.

We now turn to Professor Anthony Kronman. After teaching at the University of Chicago Law School and Minnesota Law School, Professor Kronman came to Yale, where he has been on the faculty for 16 years, and was the dean of the law school from 1994 to the year 2004. He is a Sterling Professor of Law at Yale.

He has his undergraduate degree from Williams in 1968 with highest honors, a Ph.D. in Philosophy at Yale, a law degree from Yale in 1975, when he was a classmate of Judge Alito.

Thank you for being with us today, professor, and the floor is yours.

KRONMAN: Thank you, Mr. Chairman, Senator Leahy, other members of the committee. I am grateful for the opportunity to appear this morning and offer my testimony.

I have known Sam Alito for 33 years, since we met in the fall of 1972 as members of the entering class at the Yale Law School. Over the next three years we took nearly a third of our law school courses together. We worked on the law journal together. We debated in the moot court program. I had a chance to observe Sam Alito at close range and to form an estimate of his character.

Sam was hardworking and ferociously bright. No one, I think, would challenge that. But that wasn't the first thing that impressed me about Sam. What impressed me first and most emphatically was his generosity and gentleness.

When Sam spoke, in class or out, others listened. But when others spoke, Sam listened, and not just in the superficial sense of waiting politely until they had finished, but in the deeper and more consequential sense of straining to grasp the good sense of their position and to see it in its most attractive light.

Sam always spoke with modesty. But even when he was defending a position that he believed clearly to be right, did so with the knowledge that he might be wrong.

Learned Hand once described the spirit of liberty as the spirit that's not too sure of itself. That's a phrase that's always had a special meaning for me, and it well describes the quality in Sam that I noticed from the start.

I noticed something else and admired something else, as well, and that was Sam's faith in the law. Sam believed in the integrity of the law, and in the essential fairness of its processes.

Anyone who has studied the law knows that it is not a mechanical system; it requires moral judgments at many points. But there is all the difference in the world between a person who approaches the law from the outside and views it as an instrument for the advancement of some program of one kind or another, and a person who approaches it from the inside and whose fundamental leading allegiance is to the law itself.

Sam falls clearly in that second category. He had, so far as I could tell, no political agenda of any kind. I would have described in law school as a lawyer's lawyer. And if you would have asked me on the day we graduated whether he was a Democrat -- as I was then and am today -- or a Republican, I couldn't have told you.

My knowledge of Sam Alito is based almost entirely on my personal acquaintance with the man. But since his nomination to the Supreme Court, I have attempted, as have many others, to glean at least a sense of his judicial temperament by reading a few of his opinions. I haven't read many, I haven't made a systematic study of them, but the ones that I have read suggest to me rather strongly that the judicial temperament that I discern in these opinions is entirely consistent with the human temperament of the man I came to know and admire more than 30 years ago.

The temperament of the judge, as I see it, is marked by modesty, by caution, by deference to other, in different roles with different responsibilities, by an acute appreciation of the limitations of his own office, and by a deep and abiding respect for the past.

There is a name that we give to all of these qualities taken together. We call them judiciousness. And in calling them that, we recognize that they are the special virtues of a judge.

Judge Alito has been a judicious judge. And my confidence that he will be a judicious justice is based on my personal knowledge of the man and my belief that his judicial temperament is rooted in his human character, which is the deepest and strongest foundation it could have.

Thank you very much.

SPECTER: Thank you very much, Professor Kronman.

We turn now to Ms. Beth Nolan, partner in Crowell and Moring Litigation Group, has a broad practice which focuses on constitutional and public policy issues.

Ms. Nolan held prestigious and high ranking positions in the Clinton administration in the Department of Justice in the Office of Legal Counsel. She had been a clerk to Chief Judge Collins Seitz of the Third Circuit. Is an undergraduate -- has an undergraduate degree from Scripps College and a law degree magna cum laude from Georgetown in 1980.

Thank you for being with us today, Ms. Nolan. We look forward to your testimony.

NOLAN: Thank you, Mr. Chairman, Senator Leahy, members of the committee. I'm delighted to be here today, and thank you for inviting me to provide my views.

I want to address one issue, how Judge Alito, if he should become Justice Alito, would approach questions of executive power.

I've served, as you mentioned, Mr. Chairman, in the White House as Counsel to the President, and political and career positions in the Office of Legal Counsel in the Clinton and Reagan administrations.

As might be expected of one who has served as legal counsel to the president, I believe it is essential to defend the power of the president to undertake his constitutionally assigned responsibilities and to resist illegitimate incursion on that power. And certainly, in my position as White House Counsel, I sometimes was in conflict with Congress as each branch struggled to assert its views of its authority.

This does not mean, however, that the executive should assert a view of its power that is virtually unconstrained or that fails to take account of the constitutional powers of Congress. Presidential power should be interpreted, even by lawyers for the president, with proper respect for the coordinate branches, not solely to maximize presidential power.

Judge Alito's service, as has been mentioned, on the Third Circuit, has not offered him much opportunity to address issues of executive power, but we do have some indication of his views. And I find particularly instructive and troubling his 2000 Federalist Society remarks in which he announced his support of the unitary executive theory. What he means by that support is a critical question.

It's a small phrase in one way -- unitary executive -- but it has almost limitless import to many of its adherents. At one level, it embodies the concept of presidential control over all executive functions, as Professor Chemerinsky mentioned, a concept that's been soundly rejected by the Supreme Court.

But the phrase also often serves to embrace a bundle of expansive interpretations of the president's substantive powers and correspondingly stringent limits on the legislative and judicial branches. This is the apparent meaning of the phrase in many of the administration's -- this administration's -- signing statements, claiming broad powers for the president.

In his Federalist Society speech, Judge Alito endorsed the theory of the unitary executive as developed during the period he served in the Office of Legal Counsel as a supervising deputy. An important question is how he views OLC precedence from that time.

In one opinion from that time involving covert activities, OLC expressed the president's authority in sweeping terms, adopting Justice Sutherland's dicta from a very different context to assert that the president's authority to act in the field of international relations is plenary, exclusive and subject to no legal limitations, save those derived from the applicable provisions of the Constitution itself, while declaring that Congress had only those powers in the area of foreign affairs that directly involve the exercise of legal authority over U.S. citizens.

This would seem to mean that the president is essentially above the law in the areas of foreign affairs, national security and war, and Congress is powerless to act as a constraint against presidential overreaching in these areas. It is a fair question whether Judge Alito agrees with these sweeping views.

This is not just of historical interest, of course. That version of unitary executives from the 1980s sounds remarkably similar to the assertions of unreviewable and unconstrained powers the current president has asserted with regard to his authority to ignore the laws passed by Congress, such as those forbidding torture and those regulating electronic surveillance. These issues may well come before the Supreme Court.

Judge Alito indicated over 20 years ago his strenuous disagreement with the usurpation by the judiciary of the decision making authority of the political branches.

Does this signal that he will defer to the executive branch's positions on its power and its claims that these positions are largely unreviewable? Or will he, as Justice O'Connor did in Hamdi, see a clear role for the courts in protecting our constitutional balance and, hence, our civil liberties?

Judge Alito's statements about executive power raise legitimate and serious questions that should be explored.

SPECTER: Thank you very much, Ms. Nolan.

Our next witness is Professor Charles Fried of the Harvard Law School, an expert in the areas of constitutional, legal and moral philosophy. From 1985 to 1989, he was Solicitor General of the United States, and from 1995 through 1999, he was an Associate Justice of the Supreme Judicial Counsel of Massachusetts.

He holds a bachelor's degree from Princeton, a doctor of law from Columbia, and both a bachelor's and master's from Oxford University.

Professor Fried, in his capacity as Solicitor General, was Judge Alito's superior when Judge Alito worked in that office.

Thank you for joining us, Professor Fried, and we look forward to your testimony.

FRIED: Thank you, Chairman Specter, and I thank the members of the committee for inviting me.

I think what I can most usefully do is cast some light on Judge Alito's -- and if I slip into "Sam," please forgive me, because we were a small and very collegial and friendly office -- Judge Alito's work in that office.

The Reagan administration no doubt had a point of view about the law, just as did the FDR administration in 1933, or the JFK administration in 1961. That is not unusual. That's what elections are about.

Part of that view encompassed the notion that the lower courts had gone too far in limiting the ability of law enforcement, that the lower courts had moved too far away from an appropriate view of Affirmative Action, as expressed by Justice Powell in Bakke, toward quotas. And, I suppose, emblematic of the notion that courts sometimes just make things up was the notion that Roe v. Wade was incorrectly decided, a notion which, may I say, was shared by people across the political spectrum. Professor Paul Freund, Archibald Cox expressed that view as late as 1985.

The first job of the staff of the Solicitor General's Office was to make sure that when the solicitor general presented the solicitor general's clients' position to the Supreme Court, this was done in a professional, correct and respectful way.

That office had career lawyers, some of whom stretched back to the time of Lyndon Johnson. I myself appointed as deputies people who I knew to be Democrats -- liberal Democrats. None of that bothered me or bothered them, because we were a professional office and they understood that their work was professional work. That is exactly how Judge Alito viewed his work.

If I look at the example that has -- two examples -- that have been much featured in these discussions, his memo to me in the Thornburg case on Roe v. Wade, it is said that he argued that Roe v. Wade should be overruled. He did not -- you need only read that memo, because he said in that memo that we should not argue that Roe v. Wade should be overruled. I didn't follow that advice, but that was what the advice was.

Similarly, it is said that he argued for the absolute immunity of the Attorney General in connection with wire taps. He did not. What he said was, I don't question that immunity, but we should not propose that argument. We should not make that argument to the court.

In 1985, he wanted a job in the administration, and at that point he took on a different role and he spoke in a different tone of voice. I think that's perfectly understandable and appropriate. And when, 15 years later, he became a judge -- when, 15 years ago he became a judge -- he once again assumed a different role.

His whole career shows that he understands the difference between a professional lawyer, an advocate and a judge. And no more eloquent testimony of that understanding can be had than the wonderful testimony of his colleagues -- Democrat and Republican, liberal and conservative -- who served with him for those 15 years.

I believe that it's perfectly appropriate for this panel, for this committee, to have probed Judge Alito's disposition. Everybody has a disposition. He is in the mainstream. He tends toward the right bank of the mainstream, I agree.

When this Senate approved two wonderful judges to be justices, Justice Breyer and Justice Ginsburg, it was perfectly plain that they tended toward the left bank of the mainstream, and they were confirmed and properly so. I believe Judge Alito should be, as well.

SPECTER: Thank you very much, Professor Fried.

Our next witness is Professor Laurence Tribe, Loeb University Professor at the Harvard University, and Professor of Constitutional Law at the Harvard Law School.

Professor Tribe has argued before the United States Supreme Court over 33 times, served as a law clerk to Justice Potter Stewart, received his bachelor's degree from Harvard College summa cum laude in 1962, and a law degree, also from Harvard, magna cum laude, in 1966.

Professor Tribe, the floor is yours.

TRIBE: Thank you very much, Mr. Chairman, Senator Leahy and members of the committee. It's a great honor to be here on this very important occasion.

I'm not here to endorse the nomination of Judge Alito, as I did with my most recent testimony before this committee on a Supreme Court nomination with Justice Kennedy.

I'm not here to oppose his nomination, as I did several months before that time with Robert Bork. And I'm not here to lecture the committee on its responsibilities or its role. I don't think that's my role.

I think the only useful function that I can perform is to ensure, to the limited extent I can, that senators not cast their votes with, to borrow an image from a Kubrick movie, their eyes wide shut.

It is quite clear that there are two, central concerns in the country and in the Senate with respect to this nomination, and they do not relate, honestly, to what a truly admirable, collegial, modest, thoughtful and brilliant fellow Sam Alito is. I don't mean to call him Sam. I don't really know him the way that my colleague Charles does.

They relate to whether Justice Alito might, by casting a decisive fifth vote on many cases, narrow the scope of personal liberty, especially for women, and broaden the scope of presidential power at a time when we see dramatically the dangers of an unfettered executive by weakening the ability of both Congress and the courts to restrict presidential assertions of authority.

A word first about liberty. It is certainly true that, in the Solicitor General's Office, the memorandum that Judge Alito wrote for the Solicitor General did not urge that the court be confronted frontally -- overrule Roe. But he made it clear even then that the strategy he thought wise to pursue was a step by step process toward the ultimate goal of overruling Roe. That is the only prospect on the table.

I assure you that, if the Supreme Court actually overrules Roe, I will have thousands of students to tell that I predicted the wrong thing. That's not the danger.

They won't say Roe v. Wade is hereby overruled. What they will do -- and I'm saying "will," because I am assuming that confirmation will occur, maybe it won't -- but with the vote of Judge Alito as Justice Alito, the court will cut back on Roe v. Wade step by step, not just to the point where, as the moderate American center has it, abortion is cautiously restricted, but to the point where the fundamental, underlying right to liberty becomes a hollow shell.

It is the liberty interest, which occurs not only in Roe, but in the right to die and in many cases that we can't predict over the next century, and certainly over the 30 years that Justice Alito would serve. It is that underlying liberty which is at stake.

And it is crucial to know that Judge Alito dramatically misstated the current state of the law. And I say that with deference and respect, but it was clear.

When pushed on whether he still believed, as he said, not in his role as a government lawyer, but in his personal capacity, that he believed the Constitution does not protect the right to abortion, when he was asked, do you still believe that he said, well, I would approach it by starting with Casey. Casey, in 1992, he said, began and ended with precedence, stare decisis; Casey simply followed Roe, and he thereby avoided the issue.

That's not true. Casey split the baby in half. That is, Casey said there are two fundamental questions here. One, does the woman have a fundamental liberty at stake when she's pregnant and she wants to make a decision? And number two, assuming she does, at what point does the state's interest in the fetus trump the woman's liberty?

On the liberty issue, the court did not rely on stare decisis and Roe. The moderate justices who wrote the joint opinion -- Justices O'Connor and Kennedy and Souter -- said that on the underlying issue of liberty we agree, clearly, the woman's liberty is important, special, not just like the right to fix prices.

Because, if we didn't that, and if we had a case where a teenage girl is being forced to have an abortion, her liberty wouldn't be special either. And therefore, we must conclude, without relying on Roe, this is a liberty deserving of special protection.

Never, in the descriptions that you heard from Judge Alito with respect to the issues in Roe, did he confront the question, does he, too, believe that that liberty is special? Or does he, as did Robert Bork and as do many, believe that there is no special liberty simply because the woman happens to have a fetus inside, her interest is no greater than my interest in learning how to play tennis.

So, it seems to me clear that the indications we have of Judge Alito's belief are that he does not have a conviction that that liberty is special. And he is unwilling not only to commit to treating this as a so-called "super precedent," he's not even willing to indicate to this committee that he believes that the court has a special role in protecting intimate personal liberties.

With respect to consolidating the powers of the president, I want to associate myself completely with the remarks of Beth Nolan. It is very clear that, with respect to the unitary executive theory that is being espoused, that what you saw in the instance of Judge Alito's testimony was not a forthright description of what he said he believed.

SPECTER: Professor Tribe, you're a minute and a half over. If you could summarize, we'd appreciate it.

TRIBE: I'm sorry. I will certainly summarize.

When he spoke in November of 2000, after Morrison was decided, he outlined a strategy for consolidating the power of the president, notwithstanding Morrison. And I think it is easy to explain, but I won't try to do it over time, why the distinction he tried to draw between a president's control of functions within his power and the scope of executive power is a completely phony distinction.

SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?

TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.

SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?

TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation.

SPECTER: The clock needs to start at five minutes, even for the chairman, for everybody.

We'll now -- I'd already started the five minute round, but we'll proceed. And as we all know, after the panel testifies, each senator has five minutes for questioning.

Professor Fried, you testified in the confirmation hearing of Chief Justice Roberts that you thought Roe was wrongly decided, but you also thought that Roe should not be overruled. And that's based on the reliance and upon the precedence and upon stare decisis.

You've worked closely with Judge Alito. I know you've followed his career.

To be continued.

Senators Specter and Leahy Deliver Closing Remarks

SPECTER: There are two more items that I want to cover.

First, we'll let the panel go.

Thank you very much, Ms. Pringle, Congressman Gonzalez, Congresswoman Schultz, Mr. White, Mr. Turner and Mr. Shaw.

You've been a very enlightening panel and I know how deeply all of your views are held. That's one thing we've seen in this hearing.

Nobody's casual about Judge Alito. Everybody's very decisive. Emotions run deep.

Two items I want to cover.

One in the colloquy with my distinguished ranking member, that is the future schedule on Judge Alito. And then I intend to announce my own decision on my vote now that the hearings are over.

The issue of scheduling has been extraordinarily difficult, as Senator Leahy and I have wrestled with that problem.

Preliminarily, let me say that it has been a pleasure to work with Senator Leahy and I think our collegiality has been demonstrated in many ways, mostly by all of the pictures taken where we're huddled together so that our voices don't carry too far beyond, and also with a sense of humor.

In the bad old days when I had no hair, the only way that Senator Leahy and I could be told apart was by the color of our ties.

LEAHY: You're still wearing the red tie?

SPECTER: And I'm glad to have some hair.

But the scheduling issue has been an important one and it was a difficult issue as to when we would schedule these hearings.

The president, as is well known, wanted the matter decided before Christmas and it seemed to me that was not realistic. We had to do it right and not do it fast.

And then the issue came up, OK, not before Christmas, then when?

And I wanted to start the hearings the day after New Year's. I wanted to start them on January 2nd.

And the Democrats have a right under our committee practices to delay for a week and it seemed to me that, that week could be given from the second to the ninth and that would be the week's delay.

And Senator Leahy and I are under -- we have a lot to consider. We have committee members who have views and we have a caucus, caucuses which have views.

But at any rate, we came to terms on what I thought was done, and Senator Leahy and I then went up to the radio-TV gallery and I want to read a bit of the discussion which we had there.

And I don't do this in a legalistic sense to mind Senator Leahy; I do it to set the parameters as to where we've been and the views that my committee members have and which I have.

And this is the transcript.

Quote, "But at any rate, Senator Leahy and I have worked through it and said it could be delayed a week in any event by any senator who wants to hold it over for a week; that we would put that week back at the start on the ninth with the good-faith understanding that our intent would be to go to the executive committee meeting on the 17th, the day after Martin Luther King holiday. So the schedule will be that we'll start hearings at noon on the ninth, we'll have them on Tuesday the 10th, Wednesday the 11th, Thursday the 12th, Friday the 13th, and Saturday the 14th, if necessary. Then we will go to the exec on the 17th.

"And here we can't get everybody bound in writing to waive in advance, but Pat Leahy and Arlen Specter have had no problems, nor have we, anybody on the committee, of not fulfilling what we have said we'd do as a matter of good-faith intent, which would put the executive session on the 17th. We finished that with Chief Justice Roberts in the morning and then we would go to the 18th, 19th, and 20th for floor debate with a vote on the 20th."

There's more dialogue and Senator Leahy then put in a limitation. Quote, "Obviously, this leaves room if something extraordinary comes up and frankly, neither Senator Specter nor I anticipate or expect," closed quote. And I didn't object to that.

It seemed to me that, that was a reasonable condition which might change what I had said earlier.

It is my intention to adhere to that schedule and to set the executive committee meeting for next Tuesday the 17th in Dirksen 226, our regular hearing room, at 11:00 a.m.

SPECTER: Senator Leahy?

LEAHY: Well, of course, we did this on November 3rd and the discussion was had by the -- you're absolutely right -- by Senator Frist, who was responding to the -- I won't characterize it as pressure but the direction he had received from the White House to vote for it prior to Christmas.

You may recall that Senator Frist at first said that the Senate would adjourn for the year in the first week in October and then that under every conceivable circumstance, the week before Thanksgiving. Instead there was the joyful singing of Christmas carols in the halls as we were finishing up just a few days before Christmas.

Had we followed what the White House had told Senator Frist they wanted and gone before Christmas, of course we couldn't have even had the hearing.

We were having votes every 10 minutes. It would have been chaotic. It would not have been the dignified and thorough kind of hearing we had here. On January 2nd, of course, was a holiday. We could have come back that day and had the hearings.

I think it -- as I stated at the press conference, it would have meant destroying any of the staff's attempt to have any time over the holidays with their families. They had lost much of the -- any of the family time during the normal school vacations in August because we had to prepare for the Roberts hearings.

This was, of course, the third nominee of the president's for this seat, and I would have much preferred, as you know, for a personal reason to have had it the first week in January because of long, long, long-standing personal plans for this week which I canceled because otherwise it would have meant canceling everybody's time with their families at Christmas.

I have been told that a number of our members are going to be home for Martin Luther King events this weekend, will not be back on time on Tuesday, and so they will exercise their rights.

And as you and I discussed privately prior to that press conference, of course any senator could exercise their right to put it over, a right that you and I -- both of us have served as chairman -- something you and I have always protected.

I understand from something the majority leader said that, again, even though the court doesn't come back in until the latter part of February, that the White House has told them they want the hearings to -- or wants the debate to begin before the president's State of the Union.

Even if we had -- I don't have a calendar before me, but even if we had -- if we put this over from next Tuesday to the following Tuesday, there's no reason why then it couldn't be on the floor on Wednesday, which is still one, two, three, four, five, six days prior to the State of the Union -- just in case you're wondering.

(LAUGHTER)

SPECTER: Well, this is about the first time Senator Leahy and I haven't agreed on something, but there has to be a first time for everything.

But I propose...

LEAHY: I agree you're a superb chairman. You agree on that, I hope.

(LAUGHTER)

SPECTER: And the reciprocity of respect I think is pretty evident the way we've conducted these hearings.

And I appreciate what Senator Leahy has said about the full and fair. And he used the word "dignified," I think they are dignified. There's a Latin maxim, "The exception proves the rule."

There might have been four minutes in the hearing when it wasn't dignified, but we worked through that as well.

About the only thing the respective parties have been able to agree to on this whole proceeding is that Senator Leahy and I have functioned collegially and have produced a full and fair and dignified hearing.

SPECTER: And as far as I'm concerned, we're going to proceed on the 17th at 11:00. And if the right of the...

LEAHY: Right of any senator.

SPECTER: Well, if they're held over, they're held over. I had thought we had -- and I don't fault Senator Leahy -- I thought that the Democratic caucus knew what we were doing. And they certainly knew about it after we said it.

But we'll work through this problem like many, many others. This is not a gigantic problem.

LEAHY: I think one of the problems is that whether this affected it or not, I think the fact that the time we were going to wrap up the session, the time which is determined by the leadership, by the majority leadership, kept changing. It kept changing almost day by day by day by day. And it probably has put all the pressure on everything else.

I would hope that we can work this out. Maybe you and I -- we have each other on speed dial at home. And Senator Specter has heard more descriptions about my farm house than -- let's get some of these hearings out of the way and you and I can sit up there and have dinner and have a good time.

But we'll talk about this over the weekend.

SPECTER: Thank you Senator Leahy.

Let me now move to the final item on the committee hearing, and that is the announcement of my position. And I intend to vote to support Judge Alito's nomination for associate justice to the Supreme Court, and I do not do that as a matter of having a party line vote or as a matter of party loyalty.

If I thought that Judge Alito should not be on the Supreme Court, I would vote no, just as I did with Judge Bork. My commitment to the president, as chairman of this, is to give his nominee's prompt hearings and to vote them out of committee.

And I've always believed in that. Before I became chairman, I believed that there had been too many delays on both sides. Both Democrats and Republicans have delayed hearings on judicial nominees -- and that led us to an escalation of events and filibusters and the possibility of a constitutional or nuclear option.

We worked through that. And Senator Leahy and I were instrumental in avoiding what could have been a really cataclysmic event in the Senate.

And I have always believed in voting people out of committee. I recall the days when matters were bottled up in the committee -- and I never agreed with that. And I voted against Judge Bork in committee, but I voted to send his nomination to the floor.

So in fulfilling my commitments to the president and Republican caucus to have prompt hearings and to vote people out of committee -- I believed in that before I was chairman, and I believe in it now.

And after fulfilling those duties, whether I vote aye or nay, that's my independent judgment. Under separation of powers, senators are separate from the executive branch. It would be inappropriate to make a commitment on a vote in advance in any way. And I prize that independence very highly.

With respect to Judge Alito's qualifications, I think that they are agreed to -- no doubt about the quality of his academic standing at Princeton and Yale or his erudition, or his scholarship, working at the Solicitor's General Office and Office of Legal Counsel and then 15 years on the bench.

We could not have held these hearings before when we did into January, because there was so much to do. And this committee's worked very, very hard and I thank not only the members of the committee but the staffs.

The staffs of this committee didn't have an August, a recess, to get ready for Judge Roberts' hearings. We didn't have a December or a November. We haven't had much of a January.

LEAHY: January's not too good so far.

SPECTER: But we wanted to do it right -- and I think we have done it right. We've gone very deeply into Judge Alito's background and studied his record.

SPECTER: With respect to the answers which Judge Alito gave, there are going to be differences of views. I thought we had to hear his answers before coming to judgment, and I have urged colleagues on both sides of the aisle not to make up their minds before the hearings are over.

There has been an enormous amount of publicity about Judge Alito, as there was about the White House Counsel Harriet Miers. And as I've said before, Ms. Miers was run out of town on a rail. The nomination was decided in the radio talk shows, TV talk shows, on the op-ed pages and not by the committee -- which is it what the Constitution says should be done. The Senate should make the decision and ought to have a hearing in this committee.

We kept a level playing field for Judge Alito and I was, frankly, a little concerned about the opening statements on both side sides. A lot of accusations on one side and a lot of hyperbole on the other.

And this is not a court of law, but I wanted Judge Alito to have a chance to explain where he stood and not to come to conclusions from the testimony -- it was important to come from him.

I think that his answers in a sense went farther than any in the past, because he did not say that he would not respond because the case might come before the court.

He ultimately refused to give judgments as to how he would vote, but when the issue was raised, he discussed the considerations that would be involved on executive power, a really very important subject, as to whether the resolution for the authorization of use of force comprehends authority to engage in electronic surveillance -- and I don't think it does.

The Foreign Intelligence Surveillance Act is specific on that point.

But we're going to have a hearing -- expect to hear from the attorney general. And the question of whether there's constitutional authority for the president to override a statute because of his Article 2 power -- those questions were put to Judge Alito and he responded with the kinds of considerations which would be involved.

And I think he touched all the bases there, but he wasn't going to say how he was going to rule -- nor should he.

When it came to the question of a court stripping and the amendment taking away habeas corpus jurisdiction from the federal courts on detainees, I think that's an atrocious piece of legislation. I believe it will be declared unconstitutional.

When he was asked about that, he talked about the considerations involved, not how he was going to decide it.

And on Congressional power, I think he agreed that the method of reasoning of Supreme Court justices is not superior to the method of reasoning of Congress and that there ought to be flappy tests, as we talked about Justice Scalia dissent on the Americans with Disabilities Act.

When it came to Roe v. Wade, I think he went about as far as he could go. He started off by saying that he agreed with Griswold, the constitutional right of privacy and the liberty clause, and that it would apply to single people as well in Eisenstadt and that when he was dealing with Casey, the issue of reliance was very important; that he thought it was critical by analogy to what Chief Justice Rehnquist had done in Miranda; that it was a critical factor as to whether a decision was embedded in the culture of the community.

And I certainly think, from my own point of view, Roe is.

And he agreed that it was a living Constitution, subject to change. As Cardozo said in Palco, we're raising the values of the people.

And we had a lot of discussions as to his views on Roe v. Wade and what Judge Roberts -- then Judge Roberts had said. And from my reading, I don't think there's a dime's worth of difference between what Chief Justice Roberts said and what Judge Alito said about that. Both relied heavily on precedents but said that they would not make a final commitment -- nor should they have made a final commitment.

SPECTER: I think the judicial panel was very instructive and there had been some precedence for it in the past, although this broke new ground in having as many testify as they did.

And the practice after judges hear arguments to go into conference and discuss it is one which is not widely understood by people.

And Judge Alito went into conferences. He and Judge Becker had sat on more than 1,000 cases.

I believe Judge Becker testified they disagreed only 15 times. Judge Becker received a Devitt Award as one of the -- as the outstanding federal jurist a couple of years ago.

Of course, I know Judge Becker very well because we went to college and law school together and he's been a close friend.

But he didn't exert any undue influence on me. But he testified that Judge Alito had no agenda and was not an ideologue, and so did the chief Judge Scirica.

And, of course, I know the 3rd Circuit because it's my circuit. I've argued a lot of cases in the 3rd Circuit. And I had a hand in the appointment of Judge Scirica to both the district court and the court of appeals and Judge Barry.

And then I thought the testimony of Judge Timothy Lewis was very influential.

And just a word about Judge Lewis. I first heard about him at about 1990 when he was an assistant U.S. attorney in Pittsburgh, an African-American. And Senator Heinz and I were very interested in diversifying the court.

Having an African-American -- hard to find a Republican African- American, still is pretty hard to find. And when we found one, I wanted him on the district court bench.

And I heard about him one morning in Pittsburgh, saw him that afternoon in a hotel lobby and talked to Senator Heinz about him the next day. And he was put on the district court in very fast time, and been on the court of appeals since 1992. And I've known him for more than 15 years.

When he says after knowing Judge Alito as he did, sitting with him, and Judge Lewis being dedicated to pro-choice and to civil rights, being active on the ACLU and pro-choice, that he wouldn't testify for him if there was a doubt in his mind -- I thought that was significant.

We have gone beyond asking some of the witnesses what happens if Judge Alito is rejected. This was an issue in the presidential campaign on both sides. Senator Kerry said he would appoint someone who was pro-choice, and I think President Ford said he would not use a litmus test, and I don't use a litmus test myself.

But at least from those who have been reported in the press who would be considered, I put that question to Congresswoman Schultz and to another Ms. Kate Michelman, whom would they expect to find who would give more credence to thoughtfulness and the precedence in the field.

Well, those are some of my reasons for supporting Judge Alito.

I will prepare a written statement, but I thought it important to state my views now that the hearings are over.

I know that I've already been asked many times by the press how I'm going to vote and I don't want to be coy and I don't want to hold back.

And if the Senate was in session now, I'd wait until the Senate was in session to go to the floor to make a statement, but that's how I think it through.

Senator Leahy?

LEAHY: Yes. I'll just be very brief, Mr. Chairman.

I was finding with interest what you were saying, also interest in the history in Pennsylvania -- as you know, one of my favorite states. I visit there often -- in fact, drive through there when I go the one time a year when I drive to Vermont, usually during the August recess. This time with a trunkload weighted down with all of then- Judge Roberts' writings.

You had mentioned one thing about voting against a Supreme Court justice in committee, but then voting they go on the floor.

LEAHY: I think that is a good practice. I joined you on that particular nominee. I had a at least a couple nominees for the Supreme Court whom I voted against in committee and stated what my position was.

But I then voted that they go to the floor of the Senate because I felt, for a Supreme Court justice, we ought to all at least follow Senate procedures where 100 of us could decide what procedure to follow and how to vote.

This is one of the reasons why I felt so frustrated with the 61 -- you were not chairman -- but the 61 of president Clinton's no nominees who were not allowed to vote, but basically pocket- filibustered. I thought it was a bad practice then and I think it's a bad practice -- it's the kind of partisanship that you and I have worked very, very hard to lower.

You and I have tried to go back to the type of sentiment it was when both of us came here.

I'll work with you, of course, on the scheduling of this. I had obviously not realized, one, that it would go so late in the year but, two, that we would have a number who were not prepared to vote on Tuesday and it would just follow the normal rules. But I have no problem voting the following Tuesday.

You actually picked up a couple days by having the markup on a Tuesday, not a Thursday, and voting the following Tuesday. And I guess it would be on the floor then Wednesday and off we go.

Ahem! Excuse me. It is not emotion. It's a Friday afternoon vote. Just as I said, I suspect you and I will vote -- you and I will talk over the weekend. I admire you as a senator and I admire your work as chairman. I've often said that of all the senators, you are my number two choice to be chairman of this committee.

(LAUGHTER)

Unfortunately, I don't get my number one unless the Democrats were back in the majority.

SPECTER: Thank you very much, Senator Leahy.

Thank you very much for a full, fair and dignified hearing.

That, ladies and gentlemen, concludes the nomination hearing for Justice Samuel A. Alito Jr. for the Supreme Court of the United States.

END

Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved