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

Courtesy FDCH e-Media
Tuesday, January 10, 2006; 12:49 PM

Read below the text of the first period of questioning, ending with the lunch recess. Part II picks up from that point.

SPEAKERS: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WITNESSES: 

JUDGE SAMUEL A. ALITO, 

NOMINATED TO BE AN ASSOCIATE JUSTICE OF 

THE U.S. SUPREME COURT 

[*] 

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

Before beginning the first round of questioning, just a little review as to our procedure. As announced, there will be a 30-minute allocation for each senator, but we intend to work rather late this afternoon, perhaps into the early evening. I don't know that it's possible to complete the first round of questioning today. That would be a good objective. We'll see how it goes. 

Judge Alito, you are free to let us know whenever you want a break. We will take a couple of breaks at the midpoint of the morning and the afternoon. But there are 18 of us and only one of you, so when you would like a break, your schedule takes precedence over ours. 

Before beginning the opening round, let me yield to my colleague, Senator Leahy, to see if he has some initial comments. 

LEAHY: I thank you, Mr. Chairman. I also appreciate the fact we have kept to the clock. I think it has been helpful, and I would hope that Judge Alito would bear with us on that. We will have a lot of questions. I think to take the time to get them all -- you've always been accommodating to that. And I think that it requires cooperation on both sides of the -- both sides of the dais. 

We do have the advantage, Mr. Chairman, that we didn't have with Judge Roberts hearings that we're not in session. We're not going to be interrupted by votes. And we have the time to do it. I would hope that we don't go into a marathon for both his sake and us older guys' sake. 

But I do appreciate you. You've run this with fairness and equal- handedness. I appreciate that. 

SPECTER: Well, since there are no older guys involved or gals, we can consider the marathon. But we'll keep it within bounds. 

OK. You can start the clock. I will maintain the clock meticulously as we have maintained timing in our Judiciary Committee practice. 

Judge Alito, you'll be faced with many, many questions on many topics. I'm going to start today with a woman's right to choose and move to executive power and, hopefully, within the 30 minutes pick up congressional power. 

Starting with the woman's right to choose, Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy? 

ALITO: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy. 

SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that. 

ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment. 

SPECTER: Would you agree, also with Eisenstat, which carried forward Griswold to single people? 

ALITO: I do agree also with the result in Eisenstat. 

SPECTER: Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman's right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman's right to choose. 

In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." Pretty earthy language, but that's the Supreme Court's language. 

And the court went on to say, quote, "The ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives." 

Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition. 

SPECTER: How would you weigh that consideration on the woman's right to choose? 

ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system. 

And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. 

It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents. 

SPECTER: How do you come to grips with the specifics where the court in the joint opinion spoke of reliance on the availability of abortion in the event contraception should fail -- on that specific concept of reliance? 

ALITO: Well, reliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests. 

And people can rely on judicial decisions in a variety of ways. There can be concrete economic reliance. Government institutions can be built up in reliance on prior decisions. Practices of agencies and government officials can be molded based on reliance. People can rely on decisions in a variety of ways. 

ALITO: In my view... 

SPECTER: Let me move on to another important quotation out of Casey. 

Quote: "A terrible price would be paid for overruling Casey -- or overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. And to overrule Roe under fire would subvert the court's legitimacy." 

Do you see the legitimacy of the court being involved in the precedent of Casey? 

ALITO: Well, I think that the court and all the courts -- the Supreme Court, my court, all of the federal courts -- should be insulated from public opinion. They should do what the law requires in all instances. 

That's why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected. And that's the reason: so that they don't do anything under fire. They do what the law requires. 

SPECTER: But do you think there is as fundamental a concern as legitimacy of the court would be involved if Roe were to be overturned? 

ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time. 

SPECTER: Let me move to just a final quotation that I intend to raise from Casey. 

SPECTER: And it is, quote, "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue but the precedential force that must be accorded to its holding." 

That separates out the original soundness of Roe which has been criticized and then lays emphasis on the precedential value. 

How would you weigh that consideration were this issue to come before you, if confirmed? 

ALITO: Well, I agree that, in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent. 

Let me turn to an analogous situation. And that is Chief Justice Rehnquist's change of heart on the Miranda ruling. 

In 1974, in the case of Michigan v. Tucker, he was then Justice Rehnquist, who wrote an opinion severely limiting Miranda. He, in effect, said he didn't like it. 

Then, in the year 2000, in the case of the United States v. Dickerson, Chief Justice Rehnquist wrote an opinion upholding Miranda. And he did that because, quote, "Miranda was embedded in the routine police practices to a point where the warnings have become a part of our national culture," close quote. 

SPECTER: Now, there has been an analogy made from what Chief Justice Rehnquist said on the Miranda issue to the Roe issue. 

How would you evaluate the consideration of Roe's being embedded in the culture of our society? 

ALITO: I think that Chief Justice Rehnquist there was getting at a very important point. 

SPECTER: Do you think he was right? 

ALITO: I think he getting at -- he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there. 

I think what he's talking about is that a great many people -- and, in that instance, police departments around the country over a long period of time -- had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions... 

SPECTER: Judge Alito, let me move to the dissenting opinion by Justice Harlan in Poe v. Ullman where he discusses the constitutional concept of liberty and says, quote, "The traditions from which liberty developed, that tradition is a living thing." 

SPECTER: Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing? 

ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up. 

SPECTER: Would you agree with Cardozo in Palco that it represents the values of a changing society? 

ALITO: The liberty component of the Fifth Amendment and the 14th Amendment, which I was talking about earlier, embody the deeply-rooted traditions of a country. And it's up to each -- those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations. 

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

SPECTER: Judge Alito, the commentators have characterized Casey as a super-precedent. 

SPECTER: Judge Luttig, in the case of Richmond Medical Center, called the Casey decision "super stare decisis." 

And, in quoting from Casey, Judge Luttig pointed out the essential holding of Roe v. Wade should be retained and, once again, reaffirmed. 

And then, in support of Judge Luttig's conclusion that Casey was super stare decisis, he refers to Stenberg v. Carhart and quotes the Supreme Court, saying, "We shall not revisit these legal principles." 

Now, that's a pretty strong statement for the court to make that we shall not revisit the principles upon which Roe was founded. 

And the concept of super stare decisis or super-precedent arises, as the commentators have characterized it, by a number of different justices appointed by a number of different judges over a considerable period of time. 

Do you agree that Casey is a super-precedent or a super stare decisis, as Judge Luttig said? 

ALITO: Well, I personally would not get into categorizing precedents as super-precedents or super-duper precedents or any... 

SPECTER: Did you say super-duper? 

ALITO: Right. 

(LAUGHTER) 

SPECTER: Good. I like that. 

(LAUGHTER) 

ALITO: Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket. 

(LAUGHTER) 

ALITO: I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent. And when the Supreme Court says that we are not going... 

SPECTER: How about being reaffirmed 38 times? 

ALITO: Well, I think that when a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis. 

And when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent. 

Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not. But it is a judgment that has to be based -- taking into account all the factors that are relevant and that are set out in the Supreme Court's cases. 

SPECTER: Judge Alito, during the confirmation hearing of Chief Justice Roberts, I displayed a chart. I don't ordinarily like charts but this one I think has a lot of weight because it lists all 38 cases which have been decided since Roe where the Supreme Court of the United States had the opportunity to -- Senator Hatch is in the picture now. 

(LAUGHTER) 

It's a good photo op for Senator Hatch. Senator Leahy's complaining... 

(LAUGHTER) 

LEAHY: We can just balance it on Orrin's head. 

(LAUGHTER) 

SPECTER: Well, I think the point of it is that there have been so many cases, so many cases: 15 after your statement in 1985 that I'm about to come to, and eight after Casey v. Planned Parenthood, which is why it has a special significance. 

SPECTER: And I'm not going to press the point about super- precedent. I'm glad I didn't have to mention super-duper; that you did. 

(LAUGHTER) 

Thank you very much. 

Let me come now to the statement you made in 1985 that the Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito? 

ALITO: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration. 

Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing, and that's the issue of stare decisis. 

And if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made. 

SPECTER: So you would approach it with an open mind notwithstanding your 1985 statement? 

ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role. 

And as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues. 

SPECTER: Well, Judge Alito, coming to the role you had in the solicitor general's office where you wrote the memorandum in the Thornburg case urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge. 

But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job, a promotion, within the federal government. So there's a little difference between the 1985 statement and your advocacy role in the Thornburg memorandum, isn't there? 

ALITO: Well, there is, Senator. And what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice. 

I'm not saying that I made the statement simply because I was advocating the administration's position. But that was the position that I held at the time. And that was the position of the administration. 

SPECTER: And would you state your views, the difference, as you see it, between what you did as an advocate in the Solicitor General's Office to what your responsibilities are on the 3rd Circuit or what they would be on court if confirmed in a judicial capacity? 

ALITO: Well, an advocate has the goal of achieving the result that the client wants within the bounds of professional responsibility. 

ALITO: That's what an advocate is supposed to do. And that's what I attempted to do during my years as an advocate for the federal government. 

Now, a judge doesn't have a client, as I said yesterday. And a judge doesn't have an agenda. And a judge has to follow the law. An important part of the law in this area, as we look at it in 2006, is the law of stare decisis. 

SPECTER: Judge Alito, you have written some 361 opinions, and I'd like to have the time to discuss quite a few of them with you, but I'm only going to pick up one in the first round, and that is an opinion you wrote in the Elizabeth Blackwell Health Center for Women v. Knoll. 

And that was the case where there was a challenge between a Pennsylvania statute which required as a prerequisite to a woman getting Medicaid that she would have had to have reported a rape or an incest to the police; and secondly, a requirement that there be a second opinion from a doctor that she needed an abortion to save her life. And that statutory requirement, those two provisions, conflicted with a regulation by the Department of Health and Human Services. 

And you were on the 3rd Circuit, which held that the Pennsylvania statute should be stricken in deference to the rule of the Health and Human Services Department. And Judge Nygard entered a very forceful dissent, saying that this was an interpretive rule and it was inappropriate to have that kind of an interpretive rule by a department countervail a statute. 

SPECTER: What was your thinking in that case? Had you been predisposed to take a tough line on a woman's right to choose or on Medicaid support for someone who had been raped, you would have upheld the statute? What was your thinking on that case? 

ALITO: What you said is correct, Senator. I cast the deciding vote there to strike down the Pennsylvania statute. And I did it because that's what I thought the law required. I thought the law required that we defer to the interpretation of the federal statute that had been made by the Department of Health and Human Services. 

If I had had an agenda to strike down any -- I'm sorry to uphold any regulation of abortion that came up in any case that was presented to me, then I would have voted with Judge Nygard in that case, and that would have turned the decision the other way. 

I've sat on three abortion cases on 3rd Circuit. In one of them, that was the Casey case, I voted to uphold regulations of abortion. And in the other two, the Elizabeth Blackwell case and Planned Parenthood v. Farmer, I voted to strike them down. And, in each instance, I did it because that's what I thought the law required. 

SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson's concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday. 

ALITO: I do. 

I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn't answer every question that comes up in this area, but it provides a very useful way of looking at them. 

SPECTER: Do you agree with Justice O'Connor's statement quoted frequently yesterday from Hamdi that, quote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," when she was citing the Youngstown case? Do you agree with that? 

ALITO: Absolutely. That's a very important principle. Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances. 

SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime." 

Do you stand by that statement? 

ALITO: I certainly do, Senator. 

The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them. 

SPECTER: Steering clear, Judge Alito, of asking you how you would decide a specific case, I think it is very important to find out your jurisprudential approach in interpreting whether the September 14th, 2001 congressional resolution authorizing the use of force constituted congressional authorization for the National Security Agency to engage in electronic surveillance where one party to the conversation was in the United States. 

Let me take just a moment to lay out the factual and legal considerations. 

The Foreign Intelligence Surveillance Act of 1978 provides, quote, "It shall be the exclusive means by which electronic surveillance shall be conducted in the interpretation of domestic, wire, oral and electronic communications may be conducted." 

The government contends that the Foreign Intelligence Surveillance Act clause, quote, "Except as authorized by statute, opens the door to interpreting that resolution to authorize the surveillance." 

Let me give you a series of questions. I don't like to put more than one on the table at a time, but I think they're necessary in this situation to give the structure as to where I'm going. 

First, in interpreting whether Congress intended to amend FISA by that resolution, would it be relevant that Attorney General Gonzales said, we were advised that, quote, "That was not something we could likely get," close quote? 

Second, if Congress had intended to amend FISA by the resolution, wouldn't Congress have specifically said so, as Congress did in passing the Patriot Act, giving the executive greater flexibility in using roving wiretaps? 

SPECTER: Third, in interpreting statutory construction on whether Congress intended to amend FISA by the resolution, what would the relevance be of rules of statutory construction that repeal or change by implication that changes by, or makes a repeal, by implication or disfavor and specific statutory language trumps more general pronouncements? 

How would you weigh and evaluate the president's war powers under Article II to engage in electronic surveillance with the warrant required by congressional authority under Article I in legislating under the Foreign Intelligence Surveillance Act? 

And let me start with the with the broader principles. In approaching an issue as to whether the president would have Article II powers, inherent constitutional authority to conduct electronic surveillance without a wiretap (sic) when you have the Foreign Intelligence Surveillance Act on the books making that the exclusive means, what factors would you weigh in that format? 

ALITO: Well, probably the first consideration would be to evaluate the statutory question. And you outlined some of the factors and the issues that would arise in interpreting the statute, what is meant by the provision of FISA that you quoted regarding FISA, the Foreign Intelligence Surveillance Act, being the exclusive means for conducting surveillance. 

ALITO: And then, depending on how one worked through that statutory question, then I think one might look to Justice Jackson's framework. And he said that he divided cases in this area into three categories: where the president acts with explicit or implicit congressional approval; where the president acts and Congress has not expressed its view on the matter one way or the other; and the final category, where the president exercises executive power and Congress -- and that is in the face of an explicit or implicit congressional opposition to it. 

And depending on how one works through the statutory issue, then the case might fall into one of those three areas. 

But these questions that you pose are obviously very difficult and important and complicated questions that are quite likely to arise in litigation perhaps before my own court or before the Supreme Court. 

SPECTER: Before pursuing that further -- and we'll have a second round -- I want to broach one other issue with you; my time is almost up. 

And that is, in the memorandum you wrote back on February 5th, 1986, about the president's power to put a signing statement on to influence interpretation of the legislation, you wrote this: "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress." 

SPECTER: Is that really true when you say the president's views are as important as Congress? 

The president can express his views by a veto, and then gives Congress the option of overriding a veto, which Congress does not have if the president makes a signing declaration and seeks to avoid the terms of the statute. 

And we have the authority from the Supreme Court that the president cannot impound funds, can't pick and choose on an appropriation. We have a line-item veto case, where the president cannot strike a provision even when authorized by Congress. 

Well, I have got 10 seconds left. I guess when my red light goes on, it doesn't affect you. You can respond. 

Care to comment? 

(LAUGHTER) 

ALITO: I do, Senator. 

I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised. 

And in that memo, I said, "This is an unexplored area, and here are the theoretical questions that" -- and, of course, they are of more than theoretical importance -- "that arise in this area." 

That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes. 

And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: "There are difficult theoretical interpretive questions here, and here they are." And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions. 

SPECTER: My red light went on. 

Senator Leahy? 

LEAHY: Hello, Judge, and good morning. 

ALITO: Good morning, Senator. 

LEAHY: So glad you survived yesterday listening to us. Now we have a chance to listen to you. 

I'll have further questions on the memo that Senator Specter spoke of, but it gets beyond theoretical. 

LEAHY: I mean, the last few weeks, we've seen it well played out in the press, where the president and Senator John McCain negotiated rather publicly in a memo, which passed overwhelmingly in the House and the Senate, outlawing the use of torture by United States officers, yet the president, in his signing statement, implies that it will not apply to him or to those under his command as commander in chief. 

Doesn't that get well beyond the theoretical issue there? 

ALITO: It is. And I think I said, in answering the chairman that there are theoretical issues, but they have considerable practical importance. 

But the theoretical issues really have to be explored and resolved. I don't believe the Supreme Court has done that up to this point. 

I have not had occasion in my 15-plus years on the 3rd Circuit to come to grips with the question of what is the significance of a presidential signing statement in interpreting a statute. 

LEAHY: Well, let me follow on sort of a related thing. The Supreme Court -- I feel one of the most important functions of the court is to stop our government from intruding into Americans' privacy or our freedom or our personal decisions. 

In my state of Vermont, we value our privacy very, very much. I think most Americans do, automatically. And many times they have to go to the courts to make sure that a government doesn't -- whatever the government is, whatever administration it might be, that they don't overreach in going into that privacy. 

LEAHY: Now, three years ago, the Office of Legal Counsel at the Justice Department -- and you're familiar with that; you worked there years ago -- they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture. 

They tried to redefine torture, and they asserted, I quote, "that the president enjoys complete authority over the conduct of war," close quote. 

And they went on further to say that if Congress passed criminal law prohibiting torture, quote, "in a manner that interferes with the president's direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional." They seem to say that the president could immunize people from any prosecution if they violated our laws on torture. 

And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public. 

Once it became public -- the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it's beyond the pale -- the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer -- no longer -- represented Bush administration policy. 

LEAHY: What is your view now? And I ask this because the memo has been withdrawn. It's not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct? 

ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court. 

Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States. 

Now, there can be -- there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier. 

LEAHY: Well, let's go into one of those specifics. 

Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress? 

ALITO: Well, if we were in -- if a question came up of that nature, then I think you'd be in -- where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you'd be in what Justice Jackson called the twilight zone, where the president's power is at its lowest point. 

ALITO: And I think you'd have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up. And very often there they don't make their way to the judiciary or they're not resolved by the judiciary; they're resolved by the other branches of the government. 

LEAHY: But, Judge, I'm a little bit troubled by this because you said yesterday -- and I completely agreed with what you said -- that no one's above the law; no one's beneath the law. You're not above the law. I'm not. The president's not. 

But are you saying that there are chances where the president not only could be above the law passed by Congress but could immunize others, thus putting them above the law? 

I mean, listen to what I am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo -- which has now been withdrawn -- was saying, "But that won't apply to me or people that I authorize." 

Doesn't that place not only the president but anybody he wants above the law? 

ALITO: Senator, as I said, the president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president -- and it's set out expressly in the Constitution -- is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States. 

But what I am saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone, and they have to be decided when they come up based on the specifics of the situation. 

LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law? 

ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics. 

LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon? 

ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with. 

LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture? 

ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country. 

LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he? 

ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power. 

But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue. 

LEAHY: Let's go to some specifics. Senator Specter mentioned FISA. And you're well aware of FISA, the Foreign Intelligence Surveillance Act. Certainly, you had to be involved with it, appropriately so, when you were a U.S. attorney. 

This came in after the abuses of the '60s and '70s. We had had the President Nixon's enemies list, with breaking into doctors' offices and wiretapping of innocent Americans and so on. And after that, the Congress, in a strong bipartisan effort, passed the FISA legislation. We had that court that they can handle applications in secret for wiretaps or surveillance if necessary for national security. 

LEAHY: Now, we just learned that the president has chosen to ignore the FISA law and the FISA court. He's issued secret orders, and according to the press and the president's own press conference, time after time after time, secret orders for domestically spying on American citizens without obtaining a warrant. 

Do you believe the president can circumvent the FISA law and bypass the FISA court to conduct warrant-less spying on Americans? 

ALITO: The president has to comply with the Fourth Amendment and the president has to comply with the statutes that are passed. 

This is an issue I was speaking about with Chairman Specter that I think is very likely to result in litigation in the federal courts. It could be in my court. It certainly could get to the Supreme Court. And there may be statutory issues involved: the meaning of the provision of FISA that you mentioned; the meaning, certainly, of the authorization for the use of military force. And those would have to be resolved. 

And in order to resolve them, I would have to know the arguments that are made by the contending parties. On what basis is it claimed that there's a violation? On what basis would the president claim that what occurred fell within the authorization for the use of military force? 

And then, if you got beyond that, there could be constitutional questions about the Fourth Amendment, whether it was a violation of the Fourth Amendment, whether it was a valid exercise of executive power. 

LEAHY: But wouldn't the burden be on the government to prove that it wasn't a violation of Fourth Amendment if you're spying on Americans without a warrant? Especially when you have courts set up -- in this case, the FISA Court, which sets up a very easy procedure to get the warrant -- wouldn't the burden be on the government in that case? 

ALITO: Well, Senator, I think in the first instance, the government would have to come forward with its theory as to why the actions that were taken were lawful. I think that's correct. 

LEAHY: Let me ask you another. 

How does anybody even -- you talk about this may come before the 3rd Circuit or come before the Supreme Court, and I'll accept that. But how does somebody even get there? If you're having illegal secret spying on a person, how are they even going to know? Where are they going to get the standing to sue? 

ALITO: Certainly if someone is the subject of a search, and they claim that the search violates a statute or it violates the Constitution, then they would have standing to sue. And they could sue in any court -- in the federal court that had jurisdiction. 

LEAHY: Well, and I'm not asking these as hypothetical questions, Judge. People are getting very concerned about this. 

We just found out -- again, not because the government told us, but because the press found out about it. And thank God that we do have a free press, because so much of the stuff that is supposed to be reported to Congress never is, and we, of course, hear about it when it's in the press. 

But we found out that the Department of Defense was going around -- this makes me think of COINTELPRO during the Vietnam War. 

LEAHY: They're going around the war, photographing and spying on people who are protesting the war in Iraq. They went, according to the press, and spied on Quakers in Vermont. 

Now, I don't know why they spent all that money to do that. If they wanted to find a Vermonter protesting the war, turn on C-SPAN. I do it on the Senate floor all the time. 

But I know some of these Quakers. I mean, in the Quaker tradition, they have been protesting war throughout this country's history. 

Now, I worry about this culture we're getting. And I just want to make sure the courts -- the Congress is not going to stand up and say no. And the administration certainly is authorizing this. I want to make sure that the courts -- that the courts are going to say, "We'll respect your privacy. We'll respect your Fourth Amendment rights." 

You know, if you ask somebody who's been spied on -- more on the spying -- would you agree -- and I think you did, but I want to make sure I am right on this -- do you agree they should have a day in court? 

ALITO: Certainly. If someone has been the subject of illegal law enforcement activities, they should have a day in court. 

And that's what the courts are there for, to protect the rights of individuals against the government or anyone else who violates their rights. 

And they have to be absolutely independent and treat everybody equally. 

LEAHY: And those Fourth Amendment rights are pretty significant, are they not? 

ALITO: They are very significant. 

LEAHY: I think they set us apart from most other countries in the world, to our betterment. And you were a prosecutor. I was a prosecutor. I think we could agree even in our past professions, it protects us. 

ALITO: I agree, Senator. I tried to follow what the Fourth Amendment required when I was a prosecutor, and I regarded it as very important. 

LEAHY: Well, let me go back to the last time we saw government excesses like this before FISA. When you worked in the Reagan administration, you argued to the Supreme Court that President Nixon's attorney general should have absolute immunity for domestic spying without a warrant given a case of willful misconduct. 

In your memo, you said, "I do not question that the attorney general should have the immunity but, for tactical reasons, I would not raise the issue here." 

Do you believe today that the attorney general would be absolutely immune from civil liability for authorizing warrantless wiretaps? 

ALITO: No, he would not. That was settled in that case. The Supreme Court held that the attorney general does not have... 

LEAHY: But you did believe that then? 

ALITO: Actually, I recommended that that argument not be made. It was made, and I think it's important to understand the context of that. First of all... 

LEAHY: You did say in the memo, "I do not question that the attorney general should have this immunity." 

ALITO: That's correct. And the background of that, if I could just explain... 

LEAHY: Sure. 

ALITO: ... very briefly, is that there we were not just representing the government. We were representing former Attorney General Mitchell in his individual capacity. He was being sued for damages, and we were in a sense acting as his private attorney. 

And this was an argument that he wanted to make. This was an argument that had been made several times previously by the Department of Justice, during the Carter administration, and then just a couple of years earlier in Harlow v. Fitzgerald in the Reagan administration. 

And I said I didn't think it was a good idea to make the argument in this case, but I didn't dispute that it was an argument that was there. 

LEAHY: You don't have any question that the judiciary has a role to play here and there can be judicial checks on such things? 

ALITO: No, absolutely, it is the job of the judiciary to enforce the Constitution. 

LEAHY: Let's go on to a couple search cases. And I think we've indicated to you we'd bring these up. Doe v. Groody, Baker v. Monroe Township, those are unauthorized searches. 

In Doe, the police officer had a warrant for a man at a certain address. When they arrived, they found his wife and 10-year-old daughter. They were not in the warrant. They posed no threat. But the officers detained them and strip-searched them, wife and the 10- year-old -- the 10-year-old girl. 

Baker, a mother and three teenage children were detained and searched when they arrived at the home of the mother's adult son. They didn't live there. They weren't in the home. They were outside. hthey didn't pose a threat to the police, but they were ordered at gun point to lie on the ground, they were handcuffed, they were taken into the house and they were searched. 

LEAHY: Doe, the strip search case of a 10-year-old girl, the officers didn't ask for permission to search anybody beyond the man they were looking for. In fact, the magistrate didn't give search warrant for anybody else. 

But you went beyond that. You said that they were justified in strip-searching this 10-year-old and the mother. You went beyond the four corners of the search warrant the magistrate gave. 

And one of your members of the 3rd Circuit, Judge Chertoff, who is now the head of Homeland Security and a former prosecutor, criticized your reasoning. He said that it would allow it to come dangerously close to displacing the critical role of the independent magistrate. 

Do you continue to hold the position you took in your opinion, or do you now agree with the majority? They're right and you're wrong? 

ALITO: Well, Senator, I haven't had occasion to think that what I said in that case was correct. But let me just explain what was going on there. 

LEAHY: Certainly. 

ALITO: The issue there was whether -- the first issue was whether the warrant authorized the search of people who were on the premises, and that was the disagreement between me and the majority. And it was a rather technical issue about whether the affidavit that was submitted by the police officers was properly incorporated into the warrant for the purposes of saying who could be searched. 

ALITO: And I thought that it was. And I thought that it was quite clear that the magistrate had authorized a search for people who were on the premises. That was the point of disagreement. 

I was not pleased that a young girl was searched in that case, and I said so in my opinion. That was an undesirable thing. But the issue wasn't whether there should be some sort of rule of Fourth Amendment law that a minor can never be searched. And I think if we were to... 

LEAHY: But we both agree on that, Judge. 

The only reason I bring up these two cases, it seems in both of them you went beyond the four corners of the search warrant, and you settled all issues in a light most favorable -- the majority in the opinion didn't, but you did -- in a light most favorable to law enforcement. In fact, in Baker, the majority said that. 

And I worry about this, because I always worry that the courts must be there to protect individuals against an overreaching government. In this case, your position in the minority was that you protected what the majority felt was an overreaching government. 

Am I putting too strong analysis on that? 

ALITO: I do think you are, Senator. 

LEAHY: OK. 

ALITO: I think you need to take into account what was going on here. 

The police officers prepared an affidavit. And they said, "We have probable cause to believe that this drug dealer hides drugs on people who are on the premises. And therefore, when we search, we want authorization not just to search him but to search everybody who's found on the premises, because we have reason to believe he hides drugs there." 

ALITO: And the magistrate who issued the warrant said that the affidavit was incorporated into the warrant for the purpose of establishing probable cause. 

And we're supposed to read warrants in a common-sense fashion because they're prepared by police officers for the most part, not by lawyers, and they're often prepared under a lot of time pressure. And it seemed to me that reading this in a common-sense fashion, what the magistrate intended to do was to say, "Yes, you have authorization to do what you asked us to do." 

But even beyond that, the issue there was whether these police officers could be sued for damages. And they couldn't be sued for damages if a reasonable officer could have believed that that's what the magistrate intended to authorize. And I thought that surely a reasonable officer could view it that way. 

Now, Judge Chertoff looked at it differently. And there are cases where reasonable people disagree. And that's all that was going on. 

LEAHY: I know. You look at reasonable things -- I spent eight years in law enforcement. I don't know where any reasonable officer under those circumstances would feel they could strip-search a 10- year-old girl. 

Let me go into another area. It's one that touched me in your statement yesterday. 

You spoke eloquently of your father's experience, when he came to this country. The reason it touched me -- I was thinking, my maternal grandparents emigrated to America to Vermont speaking only Italian, coming from Italy to a new country. 

LEAHY: And I know some of the problems they faced, these people speaking their strange language; my mother, as a child, learning English when she went to school -- "Why don't they speak like us? Why are they different than us?" -- and some of the obstacles that they faced. 

And my father's case, my paternal grandfather, whom I never knew, named Patrick Leahy, died as a stonecutter in Very (ph), Vermont. My father was a young teen and had to go to work to support his mother, my grandmother, whom I also never knew. And the signs then were "No Irish need apply," or, "No Catholics need apply." 

And I think you and I would be in total agreement that we're now in a different world, at least most of our country. And that we're better -- we're better people because we've done away with that. 

We both understand, I think, in our core, I would hope, what happens if you have either ethnic prejudice or religious prejudice. In my case, my father, a self-taught historian, but he never was able to finish high school. I was the first Leahy to get a college degree; my sister the next one. 

So with that in mind, there was something in your background that I was very troubled with. That's the Concerned Alumni of Princeton University, CAP. 

LEAHY: This is a group that received attention because it was put together but it resisted the admission of women and minorities to Princeton. They were hostile to what they felt where people that did not fit Princeton's traditional mold: women and minorities. 

Now, two prominent Princetonians -- one, Bill Frist, who is now the majority leader of the United States Senate -- in a committee roundly criticized CAP; Bill Bradley, who had joined it and then found out what it was, left it and roundly criticized it. 

And yet you proudly, in 1985, well after -- well after the criticisms of this -- in your job application proudly put that you were a member of it, a member of Concerned Alumni of Princeton University, a conservative alumni group. 

Why in heaven's name, Judge, with your background and what your father faced, why in heaven's name were you proud of being part of CAP? 

ALITO: Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization. 

ALITO: But since I put it down on that statement, then I certainly must have been a member at that time. 

But if I had been actively involved in the organization in any way, if I had attended meetings, or been actively involved in any way, I would certainly remember that, and I don't. 

And I have tried to think of what might have caused me to sign up for membership. And if I did, it must have been around that time. 

And the issue that had rankled me about Princeton for some time was the issue of ROTC. I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn't think that it was right to oppose the military for that reason. 

And the issue -- although the Army unit was eventually brought back, the Navy and the Air Force units did not come back, and the issue kept coming up. And there were people who were strongly opposed to having any unit on campus. 

And the attitude seemed to be that the military was the bad institution, and that Princeton was too good for the military, and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses didn't merit getting credit, that the instructors shouldn't be viewed as part of the faculty. 

And that was the issue that bothered me about that. 

LEAHY: But, Judge, with all due respect, CAP was most noted for the fact that they were worried that too many women and too many minorities were going to Princeton. 

In 1985, when everybody knew that's what they stood for, when a prominent Republican like Bill Frist and a prominent Democrat like Bill Bradley both had condemned it, you, in your job application, proudly stated this as one of your credentials. 

Now, you strike me as a very cautious and careful person. And I say that with admiration, because a judge should be. But I can't believe that at 35, when you're applying for a job, that you're going to be anything less than careful in putting together such a job application. 

LEAHY: And, frankly, I don't know why that was a matter of pride for you at that time. 

My time is up. We'll come back to this. I have other questions. 

ALITO: Well, Senator, as you said, from what I now know about the group, it seemed to be dedicated to the idea of bringing back the Princeton that existed at a prior point in time. And as you said, somebody from my background would not have been comfortable in an institution like that, and that certainly was not any part of my thinking in whatever I did in relation to this group. 

LEAHY: Or my background either, Judge -- or my background either. 

Thank you, Mr. Chairman. 

SPECTER: Thank you, Senator Leahy. 

Senator Hatch? 

HATCH: Welcome, Judge Alito. We appreciate you and the service that you have given. But much has been made about your membership in an organization called the Concerned Alumni of Princeton. 

You mentioned this organization in your 1985 job application for a position in President Reagan's administration. And you've told us what you felt you know about your membership in that organization. So is it fair to say that you were not a founding member? 

ALITO: I certainly was not a founding member. 

HATCH: You were not a board member? 

ALITO: I was not a board member. 

HATCH: Or for that matter, you were not even an active member of the organization, to the best of your recollection? 

ALITO: I don't believe I did anything that was active in relation to this organization. 

HATCH: Well, some have suggested, as my friend from Massachusetts did yesterday, that by your membership in this organization, you were somehow against the rights of women and minorities attending colleges. 

So let me just ask you directly, on the record, are you against women and minorities attending colleges? 

ALITO: Absolutely not, Senator. No. 

HATCH: You know, I felt that that would be your answer. I really did. 

(LAUGHTER) 

That's a good question, though. It's one that kind of overcomes the implications that you were. 

ALITO: Senator, I had never attended a non-coeducational school until I went to Princeton. And after I was there a short time, I realized the benefits of attending a coeducational school. 

(LAUGHTER) 

HATCH: I'm glad that you mentioned in your opening statement yesterday that a decade earlier a person like yourself, and by this I assume you meant someone of Italian ancestry... 

ALITO: I did, Senator. And someone not from any sort of exalted economic status. 

HATCH: Modest background. Son of an immigrant father and a person who had gone to public schooling might not have been fully welcomed sometimes at Princeton at that time. 

Now, people like me are not even sure what an eating club is, but it sure as heck does not sound like a cafeteria. 

ALITO: No, it's something like a fraternity, except it's just a facility, it's a private facility where students eat. Traditionally, they were selective. They had a process like "bicker" and they chose people that they thought fit in with the group. 

And I didn't choose to belong to an eating club. I belonged to a university facility called Stevenson Hall, which was named after Adlai Stevenson, and it was one of the most coeducational facilities on the campus. 

ALITO: It was not selective. It was attractive to me because a lot of faculty members went there for lunch. There was a master who lived on the facility with his family. And it was an opportunity to have dinner and lunch to talk to faculty members. 

HATCH: Well, much has been written about the just and egalitarian changes that took place at Princeton and other elite institutions in the 1960's, making them more welcoming to persons without an elite background. 

It has been alleged by some -- most prominently, I might add, by a Democratic witness who was withdrawn at the last minute because of some politically embarrassing comments that he made -- that your membership in this group demonstrates your desire to maintain some old boy's network to the detriment of women and minorities. 

Could you comment on that particular suggestion? 

ALITO: I certainly had no such desire. And I think that what I did when I was a student at Princeton and my activities since then illustrate that. 

As I said, when I was at Princeton, I was a member of this university facility, and it was open to everybody, and it was one of the most coeducational facilities on the campus. 

And since graduating, I have actually been involved in a way in the admissions process. I was on the school's committee for a number of years and interviewed applicants to Princeton. And I think that shows my attitude toward the general way in which the university has been run. 

HATCH: Well, ROTC programs, sir, are an excellent opportunity for young men and women to attend college and serve their country through service in the armed forces. 

Now, there are actually more military officers who were ROTC students than went to West Point, the Naval Academy or the Air Force Academy. Now, that includes the eminent Colin Powell. 

HATCH: You were a member of the ROTC; is that true? 

ALITO: I was, Senator. 

HATCH: You were a proud member of the ROTC. 

ALITO: I was. 

HATCH: Did you enjoy your time in the ROTC and in the Army afterward? 

ALITO: I was proud to be a member. And the unit was thrown off the campus after -- well, the decision was made shortly after I joined the ROTC, and so I attended the ROTC classes on the campus during my junior year. But during my senior year, the unit had been expelled from the campus, and I had to go to Trenton State College occasionally to finish up my ROTC work. 

HATCH: I heard a report yesterday that the ROTC building on the Princeton campus was actually firebombed at about the same time that American servicemen of college age were fighting in Vietnam. Is that accurate? 

ALITO: That's correct. It was very extensively damaged. 

HATCH: Was anybody injured? 

ALITO: I don't recall that anybody was injured, but certainly there's a serious risk of injury whenever an arson takes place. 

HATCH: Now, Judge Alito, some senators and left-wing activist groups have focused on one case involving the Vanguard Company, claiming that your consideration of that case amounts to some kind of ethical lapse. 

Now, I would observe that the universal opinion is that you have unquestioned integrity and a record that is above reproach. I know we will hear from the American Bar Association later this week, but I know their highest rating includes the highest marks for integrity. 

In fact, I have a copy of their recommendations here. 

HATCH: On the issue of integrity, it says, "The man of integrity is self-defining. A nominee's character and general reputation in the legal community are investigated, as are his or her industry and diligence. 

"Judge Alito enjoys an excellent reputation for integrity and character, notwithstanding a widespread awareness of the Vanguard and Smith Barney recusal issues. 

"During his personal interview with us, Judge Alito was asked about the recusal matter in detail, and he acknowledged at length that he takes the matter of recusal very seriously and that the cases had, quote, 'slipped through,' unquote, the court screening process." 

I won't read the whole matter, but let me just go toward the end: "Judge Alito explained to the satisfaction of the standing committee the special circumstances that resulted in the screen not working or otherwise not being applied in these limited matters," that is, the screening of cases, "and he further accepted responsibility for the errors. We accept his explanation and do not believe these matters reflect adversely on him." 

"To the contrary, consistent and virtually unanimous comments from those interviewed include, quote, 'He has the utmost integrity.' 'He is a straight shooter, very honest and calls them as he sees them.' 'His reputation is impeccable.' 'You can find no one with better integrity.' 'His integrity and character are the highest caliber.' 'He is completely forthright and honest.' 'His integrity is absolutely unquestionable.' 'He is a man of great integrity.' 

"On the basis of our interviews with Judge Alito with well over 300 judges, lawyers and members of the legal community nationwide, all of whom know Judge Alito professionally, the standing committee concluded that Judge Alito is an individual of excellent integrity." 

Now, the reason I want to go into this is to, kind of, get rid of this problem that I think's as phony as anything I've ever seen in my time around here. Like I say, this case has been written about or reported on for weeks in bits and pieces, so that getting a clear picture of the facts is, indeed, a challenge, let alone getting a clear picture of the ethical issues involved, as well. 

HATCH: And I know you've not had a chance to respond to any of it publicly, so I want to give you that chance now. Please take a few minutes and briefly describe the facts of the case, and then I have a few questions on the issues that are raised by the case. 

ALITO: Thank you, Senator. 

And I appreciate the opportunity to address this, because a lot's been said about it, and very little by me. 

And I think that once the facts are set out, I think that everybody will realize that in this instance I not only complied with the ethical rules that are binding on federal judges -- and they're very strict -- but also that I did what I've tried to do throughout my career as a judge, and that is to go beyond the letter of the ethics rules and to avoid any situation where there might be an ethical question raised. 

And is a case that came up in 2002, 12 years after I took the bench, and I acknowledged that if I had to do it over again, there are things that I would have done differently. And it's not because I violated any ethical standard, but it's because when this case first came before me, I did not focus on the issue of recusal and apply my own personal standard, which is to go beyond what the code of conduct for judges requires. 

This was a pro se case, and we take our pro se cases very seriously. 

HATCH: By pro se... 

ALITO: It's a case where the plaintiff was not represented by a lawyer. She was representing... 

HATCH: She was paying for her own counsel and represented herself. 

ALITO: She represented herself initially, and we take those very seriously. We give those just as much consideration, in fact more consideration in many respects than we do with the cases without lawyers because we take into account that somebody who is representing himself or herself can't be expected to comply with all the legal technicalities. 

But, for whatever reason, our court system for handling the monitoring of recusals in these pro se cases is different from the system that we use in the cases with lawyers, and maybe that's because recusal issues don't come up very often in pro se cases. 

But in any event, in a case with a lawyer, before the case is ever sent to us, we receive what are known as clearance sheets, and those are -- it's a sheet of -- it's a stack of papers, and it lists all the cases that the clerk's office is thinking of sending to us. It lists the parties in each case, and it lists the lawyers in each case, and it says, "Do you need to recuse yourself in any of these cases?" 

And this is the time when the judges -- and this is the time when I focus on the issue of recusal. And I look at each case, I look at the parties, I look at the lawyers, and I ask myself, "Is there a reason why I should not participate in the case?" 

Now, because this case, the Monga case, was a pro se case, it didn't come to me with clearance sheets. I just received the briefs, and it had been through our staff attorney's office. 

They take a first look at the pro se cases, and they try to make sure -- they try to translate the pro se arguments into the sort of legal arguments that lawyers would make, to help the pro se litigants. And they give us a recommended disposition and a draft opinion. 

And when this came to me, I just didn't focus on the issue of recusal. And I sat on the initial appeal in the case. 

ALITO: And then after the case was decided, I received a recusal motion. And I was quite concerned because I take my ethical responsibilities very seriously. 

So I looked into the question of whether I was required, under the code, because I just wanted to see where the law was on this. Was I required, under the code of conduct, to recuse myself in this case? 

And it seemed to me that I was not. And a number of legal experts, experts on legal ethics, have now looked into this question, and their conclusion is: No, I was not required to recuse. But I didn't stand on that because of my own personal policy of going beyond what the code requires. 

So, I did recuse myself. And, not only that, I asked that the original decision in the case be vacated -- that is, wiped off the books -- and that the losing party in the case, the appellant, Ms. Monga, be given an entirely new appeal before an entirely new panel. 

And that was done. And I wanted to make sure she did not go away from this case with the impression that she had gotten anything less than an absolutely fair hearing. 

And then, beyond that, I realized that the fact that this had slipped through in a pro se case pointed to a bigger problem, and that was the absence of clearance sheets. 

So, since that time, I have developed my own forms that I use in my own chambers. And, for pro se cases now, there's -- I have a red sheet of paper printed up, and it's red so nobody misses it. And when a pro se case comes in, it initially goes to my law clerks. And they prepare a clearance sheet for me in that case and then they do an initial check to see whether they spot any recusal problem. 

And if they don't, then there's a space at the bottom where they initial it. And then it comes to me, and there's a space at the bottom for me to initial to make sure that I focus on the recusal problem. 

And in very bold print at the bottom of the sheet, for my secretary, it says: No vote is to be sent in in this case unless this form is completely filled out. 

ALITO: So there are a number of internal checks now in my own office to make sure that I follow my own policy of going beyond what the code requires. 

HATCH: In other words, there was never any possibility of you benefiting financially, no matter how that case came out, is that right? 

ALITO: There was absolutely no chance and... 

HATCH: You actually did recuse yourself when the question was eventually raised, even though you didn't have to? 

ALITO: That's correct, Senator. 

HATCH: Did you genuinely feel you were either legally or ethically required to recuse under those circumstances? 

ALITO: I did not think the code required me... 

HATCH: You were just going beyond, which has been your philosophy... 

ALITO: That's right. 

HATCH: ... and your personal ethical approach to it. 

Well, your own conclusion certainly is supported by the independent ethics experts that you mentioned, who have recently examined this case. I know one of them is Professor Geoffery Hazard from the University of Pennsylvania. 

Now, that name stuck out in particular because I remember when a financial conflict-of-interest issue arose in connection with the nomination of Supreme Court Justice Stephen Breyer. In 1994, Senator Kennedy and I -- we strongly defended the Breyer nomination. I did, too. 

And during the hearing, Senator Kennedy highlighted a letter from Professor Geoffery Hazard to answer Justice Breyer's critics. 

Well, Professor Hazard, he has examined this matter and concluded that you, Judge Alito, handled it, in his words, "quite properly." 

Now, Mr. Chairman, I'd like to put not only Professor Hazard's letter into the record, but the letter of Stephen Lubet, Thomas Morgan and Professor Ronald Rotunda, all of whom found that you made no ethical mistakes. 

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

HATCH: All right. 

And let me just observe that these are all top ethics experts in our country today. And, you know, I have to say that Morgan of the George Washington University Law School, he happens to be the co- author of the nation's most widely read ethics textbook. Now, he was blunt in his assessment, saying that there was simply no basis for suggesting that you did anything improper. 

So I'm glad to put those in the record. 

Now, you actually did more than simply recusing yourself in this case. As you have explained, you have even set up a special system to make sure that this -- you know, that there never is going to be a question about this. And so you went farther than you were legally or ethically mandated to do. 

ALITO: I did, Senator. And that is what I have tried to do throughout my time on the bench. 

HATCH: When the new panel of judges looked at this case, how did they rule? 

ALITO: They ruled the same way that we had, and we had ruled the same way that the district court did. 

HATCH: OK. 

So let me just clarify this one more time, and you tell me if this accurately describes the situation. 

You did not believe that you were ethically or legally required to recuse yourself in this case. All the ethics experts agree with you. Yet you recused yourself anyway when the issue was raised. 

The party raising the issue got an entirely new hearing before a new and different panel of judges, who ruled the same way that you did originally. 

Does that about sum it up? 

ALITO: That's correct, Senator. 

HATCH: Well, I have to say, Judge, that you went above and beyond your ethical duties here. And I think you're to be applauded, not to be criticized, for your rigorous attention to judicial impartiality and integrity. 

Now, let me just go into another matter here before I finish here. 

HATCH: Some Supreme Court nominees have had legislative experience. The justice you will replace, Justice O'Connor, served in the Arizona State Senate. Justice Breyer was chief counsel to Senator Kennedy when he chaired this committee. I have tremendous respect for both of them. 

Judge Alito, you have had no legislative experience, and there are those of us who are concerned that your many years of experience in the executive branch may have biased you in favor of executive power. Clearly, some feel that way, that that's a possibility. 

Yesterday, one of my Democratic colleagues claimed that your instincts are to defer to the executive, to grant prosecutors whatever power they seek -- that sort of thing. And I suppose that in 15 years on the appeals court, that you have participated in what I would estimate nearly 5,000 cases. 

You have had many opportunities to review challenges to executive power. Is that correct? 

ALITO: I have, yes. 

HATCH: Well, I am thinking of cases such as the United States v. Kithcart, where you reversed a criminal conviction because the police lacked probable cause for a search; or Bolton v. Southeastern Pennsylvania Transportation Authority, where you ruled for a former maintenance custodian for a public transportation agency, concluding that the Fourth Amendment barred a suspicionless drug test. 

I want to make it clear that simply giving such examples of results on the other side of the ledger does not by itself prove that you are a good judge or a bad judge. Without also talking about the facts and the law in each case, merely tabulating winners and losers does not offer much. 

But since my colleagues on the other side occasionally have their tally sheets, and actually some have even claimed that you may be biased when certain results seem to suit them, could you give me some more examples of cases where you voted against executive powers? 

ALITO: Yes, certainly, Senator. Brinson v. Vaughn is an example of that. That was a habeas case involving a murder conviction. And I concluded, and my panel concluded, and I wrote the opinion, saying that there had been racial discrimination or enough to have a hearing on the possibility of racial discrimination in the selection of the jury in that case. And, therefore, we reversed the decision of the district court. 

Williams v. Price is another example. There, we found -- and that was another murder case. And so what's involved here in these cases is really the most important thing that is litigated on the criminal side in the federal courts. That was a case where the district court had denied the writ of habeas corpus and we reversed, because we found that there had been an error in excluding testimony that showed racial bias on the part of the jurors. 

There was another murder case, United States v. Murray. This was a federal prosecution, and we had to reverse there because we concluded, and I wrote the opinion there, that the prosecutors had introduced evidence... 

HATCH: You could go on and on, but my point is that in approximately 5,000 cases, you can find just about anything you want to to pluck out and say, oh he didn't do right here, or he did right here. 

I mean, the fact of the matter is that you, as far as I can see, have always done your utmost to live up to your responsibilities as a federal court judge, and that you have done so throughout your 15 years on the bench, even though members of this illustrious body, the United States Senate, might differ with you on occasion, and others might also. 

HATCH: But I don't know a judge alive who's been on the bench 15 years that doesn't have cases that some of our illustrious members disagree with. So that's the point I am trying to make. 

Let me just shift here for a second. I am interested in exploring the kind of judge you are. As you can see, some of these questions have all been directed toward what kind of a judge you are. 

But I am interested in what is often referred to as a judicial philosophy, which means how you understand the role the judges play in our system of government, in general, and how judges should go about deciding cases, in particular. 

I would like to explore this by giving you a chance to expand on a few things that you have said or written. 

In your hearing in April 1990, which my friend, Senator Kennedy chaired, he asked you: What qualities are most important for an appellate judge? 

You listed open-mindness to litigants' arguments, close attention to the particular facts and law in the case and trying not to import a judge's own view of the law that should be applied in the case. 

Now, in your statement yesterday, you said that your experience on the appeals court has taught you a lot about, as you put it, quote, "the way in which a judge should go about the work of judging." 

What has that experience taught you? How has it shaped the answer you gave before you went on the bench? 

ALITO: My general philosophy is that the judiciary has a very important role to play. And, in speaking with Senator Leahy, I highlighted some of that. 

But the judiciary has to protect rights. And it should be vigorous in doing that. And it should be vigorous in enforcing the law and in interpreting the law in accordance with what it really means and enforcing the law even if that's unpopular. 

But, although the judiciary has a very important role to play, it's a limited role. It is not -- it should always be asking itself whether it is straying over the bounds, whether it's invading the authority of the legislature, for example, whether it is making policy judgments rather than interpreting the law. 

ALITO: And that has to be a constant process of reexamination on the part of the judges. And that's the role that the judiciary should play. 

Now, my experience on the bench has really reinforced for me the importance of the appellate process and the judicial process. And I described it yesterday. 

And that is the process of really engaging the arguments that are made, reading the briefs, and approaching it with an open mind, always with the possibility of changing your mind based on the arguments and based on the facts of the particular case. 

HATCH: Well, another context in which you discussed your judicial philosophy is the questionnaire that you received from this committee, which asked for your views on judicial activism. 

Now, the very first words of your answer were as given here today, "that the Constitution sets forth the limited role for the judicial branch." 

Now, to hear some of my colleagues describe it yesterday, judges have virtually unlimited power to right all wrongs, protect everyone from everything and make sure that government officials everywhere behave themselves. 

As an appeals court judge, the decisions of the Supreme Court add to the limitations or constraints you must observe, in my opinion. 

I'm wondering whether you believe this notion of limited judicial power applies also to the Supreme Court; and if so, how it applies when there is no higher court than the Supreme Court. 

HATCH: Does that mean that the Supreme Court should perhaps be even more cautious, even more self-restrained, since there is no appeal from any errors that they might make? 

ALITO: I think that's a solemn responsibility that they have. When you know that you are the court of last resort, you have to make sure that you get it right. 

It is not true, in my judgment, that the Supreme Court is free to do anything that it wants. It has to follow the Constitution and it has to follow the laws. 

Stare decisis, which I was talking about earlier, is an important limitation on what the Supreme Court does. And although the Supreme Court has the power to overrule a prior precedent, it uses that power sparingly, and rightfully so. It should be limited in what it does. 

HATCH: Another place in which you have written about what might be called judicial philosophy is in your opinions; not that you've spent much time opining about such matters in the abstract. Nevertheless, I would like you to expand a little on a few of the things you have written in this regard. 

For instance, in New Jersey Payphone Association v. Town of West New York -- this was a 2002 case -- for example, you wrote the following. Quote, "It is well established that when possible federal courts should generally base their decisions on nonconstitutional rather than constitutional grounds. The rationale behind the doctrine of avoiding constitutional questions except as a last resort are grounded in fundamental constitutional principles," unquote. 

Can you explain those fundamental principles and whether you think the Supreme Court, as well as the appeals court, should follow this imperative to avoid constitutional decisions? 

ALITO: I do. I think that's a very important principle. 

As I recall, Justice Brandeis, in the Ashwander case, was the one who articulated it most eloquently. 

ALITO: And it's, therefore, an important reason. Because a constitutional decision of the Supreme Court has a permanency that a decision on an issue of statutory interpretation doesn't have. 

So if a case is decided on statutory grounds, there's a possibility of Congress amending the statute to correct the decision if it's perceived that the decision is incorrect or it's producing undesirable results. 

I think that my philosophy of the way I approached issues is to try to make sure that I get right what I decide. And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be decided, and not going to broader grounds for a decision when a narrower ground is available. 

HATCH: You've addressed issues such as abortion at different points in your career. You addressed it when you worked for the solicitor general. You might have addressed it in several cases on the appeals court. 

It might be tempting to say that if you came to one conclusion while in one role, you will necessarily come to the same conclusion on the issue while in a different role. 

Now, I think you've explained it pretty well, but let me just ask one other question: Could you please explain how judges address issues differently than advocates? And how does the requirement of the case or a controversy or a limitations such as a particular standard of review shape how judges address these issues? 

ALITO: The standards of review are very important, and often they are prescribed by Congress. Congress gives us authority, jurisdiction to decide certain questions, but it says that you don't have the authority to go back and do what you would have done if you were the trial judge or if you were the administrative state. You have a limited authority of review. 

And I think it's very important for us to stay within the bounds of the authority that Congress gives us. And I think that's a very important part of our function. 

HATCH: Thank you, Judge. 

SPECTER: Thank you, Senator Hatch. 

We will now take a 15-minute break and reconvene at 11:20. 

(RECESS) 

SPECTER: We will resume the hearing for Judge Alito on confirmation to the Supreme Court of the United States. 

And we now turn in sequence to Senator Kennedy. 

Let's not forget to start the clock. 

KENNEDY: Thank you very much, Mr. Chairman. 

There was one interesting omission between the exchange of yourself and Senator Hatch on the whole Vanguard issue in question, and that was the promise and pledge that you gave to this committee when you were up for the circuit court. I have it right here. 

It said, "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, the brokerage firm of Smith Barney, or the First Federal Savings Loan of Rochester, New York." 

You remember that response. That was a pledge and promise to the committee that you would recuse yourself. Did you not? 

ALITO: Yes, it was, Senator. 

And as I said in answering Senator Hatch's question, if I had it to do over again, I would have handled this case differently. There were some oversights. 

KENNEDY: I'm sure you might have. We've had a number of different explanations for this. 

I'd like to ask the clerk if they would take down and show the judge, if you'd like to be refreshed about the number of times the name "Vanguard" appears on the brief and the number of times "Vanguard" appears on the opinion, which I believe you authored. 

Would you like to -- if I could get a clerk to show those two documents. 

ALITO: Senator, I am familiar with that. I do not really need to see the document. 

KENNEDY: OK. 

ALITO: Senator, the name "Vanguard" certainly appears on the briefs. And it appeared in the draft opinion that was sent to us by the staff attorney's office. 

I just did not focus on the issue of recusal when it came up. That was an oversight on my part, because it didn't give me the opportunity to apply my personal policy of going beyond what the code requires. 

KENNEDY: So the individuals that responded on the ethical issues that were involved in this case, did they know that you had pledged and promised to this committee that you would recuse yourself? 

ALITO: I believe that they did. I believe that some of them at least addressed that specifically in... 

KENNEDY: Do you know specifically whether they did or not? 

ALITO: I believe they addressed it in their letters, so they must have been aware of it. 

KENNEDY: They understood that you had promised this committee that you would recuse yourself? Your testimony now is that those that made a comment upon your ethical behavior knew as a matter of fact that you had pledged to this committee that he would recuse yourself from the Vanguard cases? 

ALITO: Professor Hazard I know addressed that directly in his letter. I think Professor Rotunda addressed it in his letter. So, obviously, if the letters addressed the issue, they were aware of what was said on the Senate questionnaire. 

KENNEDY: And the final answer -- we'll move on -- is that you saw the name "Vanguard" on the briefs and you obviously saw them on the opinion. You're the author of the opinion. But your testimony here now is even though you saw the names on that, it did not come to mind at that moment that you had made the pledge and promised to this committee that you would recuse yourself? 

ALITO: I did not focus on the issue of recusal, I think, because 12 years had gone by and the issue of a Vanguard recusal hadn't come up. 

And one of the reasons why judges tend to invest in mutual funds is because they generally do not present recusal problems. And pro se cases in particular generally don't present recusal problems. 

ALITO: And so no light went off. That's all I can say. I didn't focus on the issue of recusal. 

KENNEDY: Well, this is important, when the lights do go on, and when the lights do go off. Because actually the accumulation of value of Vanguard had increased dramatically during this period of time, had it not? 

ALITO: It had, Senator, but I had nothing to gain financially by... 

(CROSSTALK) 

KENNEDY: No, I'm not asking to get on to the questions of gain or loss or whatever. 

I'm just asking about the pledge to the committee which you had given and the fact that the Vanguard was so obvious both in the brief and in the opinion which you wrote, and the fact that during this period of time there had been a sizable increase in the total value of Vanguard. And as all of us know, if you're dealing with a case dealing with IBM, you can't have even a single share in that. 

The point about all of this is, is that so that interested parties that come before the courts are going to believe, not only in reality, but in appearance, that they're going to get a fair shake. 

And that, you have said, was certainly your desire. And I certainly commend you for at least that desire. But in this case, this was something we'd recognize is extremely important. 

Judge, in just the past month, Americans have learned that the president instructed the National Security Agency to spy on them at home. 

KENNEDY: And they've seen an intense public debate over when the FBI can look at their library records. 

And they've heard the president announce that he has accepted the McCain amendment barring torture. But then just days later, as he signed it into law, the president's decided he still could order torture whenever he believed it was necessary: no check, no balance, no independent oversight. 

So, Judge, we all want to protect our communities from terrorists. But we don't want our children and grandchildren to live in an America that accepts torture and eavesdropping on American citizens as a way of life. 

We need an independent and vigilant Supreme Court to keep that from happening, to enforce the constitutional boundaries on presidential power and blow the whistle when the president goes too far. 

Congress passes laws, but this president says that he has the sole power to decide whether or not he has to obey those laws. Is that proper? I don't think so. 

But we need justices who can examine this issue objectively, independently and fairly. And that's what our founders intended and what the American people deserve. 

So, Judge, we must know whether you can be a justice who understands how to strike that proper balance between protecting our liberties and protecting our security, a justice who will check even the president of United States when he has gone too far. 

Chief Justice Marshall was that kind of justice when he told president Jefferson that he had exceed his war-making powers under the Constitution. 

KENNEDY: Justice Jackson was that kind of president (sic) when he told President Truman that he could not use the Korean War as an excuse to take over the nation's steel mills. 

Chief Justice Warren Burger was that kind of justice when he told President Nixon to turn over the White House tapes. And Justice O'Connor was that kind of justice when she told President Bush that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens. 

So I have serious doubts that you'd be that kind of justice. The record shows time and again that you have been overly deferential to executive power, whether exercised by the president, the attorney general or law enforcement officials. 

And your record shows that, even over the strong objections of other federal judges -- other federal judges -- you bend over backward to find even the most aggressive exercise of executive power reasonable. 

But perhaps most disturbing is the almost total disregard in your record for the impact of these abuses of powers on the rights and liberties of individual citizens. 

And so, Judge Alito, we need to know whether the average citizen can get a fair shake from you when the government is a party, and whether you will stand up to a president -- any president who ignores the Constitution and uses arguments of national security to expand executive power at the expense of individual liberty; whether you will ever be able to conclude that the president has gone too far. 

Now, in 1985, in your job application to the Justice Department, you wrote, "I believe very strongly in the supremacy of the elected branches of government." Those are your words, am I right? 

ALITO: They are and that's a very inapt phrase. 

KENNEDY: Excuse me? 

ALITO: It's an inapt phrase, and I certainly didn't mean that literally at the time, and I wouldn't say that today. 

The branches of government are equal. They have different responsibilities, but they are all equal and no branch is supreme to the other branches. 

KENNEDY: So you've changed your mind? 

ALITO: No, I haven't changed my mind, Senator, but the phrasing there is very misleading and incorrect. 

What I was getting at is the fact that our Constitution gives the judiciary a particular role and there are instances in which it can override the judgments that are made by Congress and by the executive. But for the most part, our Constitution leaves it to the elected branches of government to make the policy decisions for our country. 

KENNEDY: All right. I want to move on. 

Mr. Chairman, the clock is off. There are a number of points I want to cover and be timely, so I leave it up to the chair... 

SPECTER: Senator Kennedy, you're correct. We have a timer over here. We're trying to get the timer fixed. 

KENNEDY: If I would know when I have 10 minutes left... 

SPECTER: Let us see if we can't get that clock in the view of Senator Kennedy so he can see it when he's questioning the witness. 

KENNEDY: Thank you. Thank the chair. 

SPECTER: And give Senator Kennedy two more minutes. 

KENNEDY: There you go. There you go. 

(LAUGHTER) 

(UNKNOWN): Bravo. 

KENNEDY: Be quiet over there. 

(LAUGHTER) 

Scurrilous dogs. 

(LAUGHTER) 

Judge, quite frankly, your record shows you still believe in the supremacy of the executive branch, Judge Alito. I believe there is a larger pattern in your writings and speeches and cases that show an excess of almost single-minded deference to the executive power without showing a balanced consideration of the individual rights of people. 

So let's discuss some of your opinions. These cases deal specifically with one form or another of executive power, the power of authorities to intrude in homes, search people who were not even suspected of committing a crime. 

KENNEDY: The Mellot v. Hemer (ph), where the U.S. Marshal Service forcibly evicted a family of dairy farmers from their home and their farm. These farmers had no criminal record and were suspected of no crime. 

But after they fell on very hard times, the property was sold at a public auction. U.S. marshals were sent to evict them. 

Remember, the marshals were sent to carry out a civil action, not a criminal action, a civil action. These farmers had committed no crime. 

Now, I respect the U.S. marshals. They have a tough job and they do it with great professionalism. But in this case, the marshals entered the house with loaded guns. The family was unarmed, did not resist, but still the marshals pointed loaded guns at their heads, chests and backs. 

One marshal chambered a cartridge in his gun. Twice, they pushed the wife into her chair. 

The trial judge held there was enough evidence in this case to have a jury review the facts, hear the testimony and decide whether the marshals used too much force to evict these farmers. 

But that did not sit well with you, Judge Alito. You grabbed the case away from the jury. You wouldn't let them hear the testimony or make up their own mind about whether the marshals had gone too far. 

No, you simply substituted your judgment for the jury's and decided that the marshals' conduct was as a matter of all objectively reasonable. Judgment for the marshals, no jury of their peers for the farmers. 

Why, Judge Alito? Your colleague on the 3rd Circuit, Judge Rendell, called the marshals' conduct Gestapo-like -- Gestapo-like. She said seven marshals detained, terrorized the family and friends, ransacked a home while carrying out an unresisted civil eviction. The trial judge thought the decision should be made by the jury. Why didn't you let the jury exercise an independent check on the marshals' actions? 

ALITO: There was some additional information regarding these people that was important, and that was that they had threatened other people, as I recall. And there was evidence about the possession of weapons and evidence that they would be dangerous. That was the basis on which the marshals acted the way they did. 

This was a case in which the marshals were sued for civil damages. And they asserted what's called the qualified immunity defense, and that means that if a reasonable person could have thought there was a basis for doing what they did, then they are entitled not to be tried. That is the law. I didn't make up that law. 

KENNEDY: Wait... 

SPECTER: Let him finish, Senator Kennedy. 

ALITO: That's not a legal standard that I made up, and that was the way I saw the case, and that's the way the other judge who was in the majority saw the case. 

Now, these cases involve difficult line-drawing arguments at times, and I respect Judge Rendell's view of this very much, but reasonable people will view these things differently. 

KENNEDY: Well, the issue then was the actions of the marshals, whether it was reasonable -- whether it was reasonable. And here you have a judge, Judge Rendell, saying it was Gestapo-like to talk about terrorizing a family and ransacking a home while carrying out an unresisted civil eviction. 

Aren't juries there to make a judgment and determination whether it was reasonable or not reasonable? And didn't your action take that away because you ruled as a matter of law that their conduct was reasonable? 

ALITO: The Supreme Court has told us how we have to handle this issue, and it is for the judiciary to decide in the first place whether a reasonable officer could have thought that what the officer was doing was consistent with the Fourth Amendment. We have to make that decision. 

Now, if we decide that there's an issue of fact, if there's a dispute in the testimony about the evidence that the marshals had or about what these individuals were doing at the time when the search was taking place or what the marshals did, then certainly those factual issues have to be resolved by the jury. 

KENNEDY: That's, I think, certainly the view of Judge Rendell. 

Let me move on, if I could, to the Doe v. Groody. And I know that you have -- Senator Leahy has talked about this and gone over the factual situation about the strip-searching of a 10-year-old girl. 

KENNEDY: This case, the police got a warrant to search the house. They found the suspect outside, marched him inside, where they encountered the wife and 10-year-old. 

The police took the wife and daughter upstairs, told them to remove their clothing, physically searched them, not as a protective frisk or search for weapons but in the hopes of finding contraband. 

And that is when Judge Chertoff, the formal chief federal prosecutor for New Jersey, the former head of the Criminal Division in the Justice Department, President Bush's current secretary of homeland security, held that the police went too far. 

As Judge Chertoff said, a search warrant for a premise does not constitute a license to search everyone inside. You differed. You differed. 

And you've reviewed with us your reasoning for it: the fact that you felt that the affidavit which had been filed by the police should be included in the search warrant. 

Judge Chertoff takes strong exception to that, as does the Fourth Amendment -- as does the Fourth Amendment. 

As you mentioned yourself, the affidavit represents the police's view about the situation. But the search warrant is what is approved by the judge. Those are two different items that come up every time, in many, many instances. 

Why did you feel that, under these circumstances -- under these circumstances -- that that affidavit should be included, the result of which we have the strip-searching of a 10-year-old -- a 10-year-old that will bear the scars of that kind of activity probably for the rest of her life? 

The Fourth Amendment is clear. We want to protect the innocents. We want to have a search warrant that is precise, so that the police understand it and the person that it's being served to understands it. 

KENNEDY: That was all spelled out in the judgment. 

But you went further than that. You said, "Well, in this case, we're going to include the affidavit." And as a result of your judgment in this case and the inclusion of the Affidavit, we have the kind of conduct against this 10-year-old which she will never forget. 

Why, Judge Alito? 

ALITO: Senator, I wasn't happy that a 10-year-old was searched. 

Now, there wasn't any claim in this case that the search was carried out in any sort of an abusive fashion. It was carried out by a female officer. And that wasn't the issue in the case. 

And I don't think there should be a Fourth Amendment rule -- but, of course, it's not up to me to decide -- that minors can never be searched. Because if we had a rule like that, then where would drug dealers hide their drugs? That would lead to greater abuse of minors. 

The technical issue in the case was really not whether a warrant can incorporate an affidavit. There's no dispute that a judge or a magistrate issuing a warrant can say that the affidavit is incorporated. And that was done here. 

The issue was whether -- and it was a very technical issue -- was it incorporated only on the issue of probable cause, or was it also incorporated on the issue of who would be searched? 

If the magistrate had said in the warrant, "This warrant is incorporated as to the people who may be searched" and then in the affidavit it said -- and it did say this very clearly -- "We want authorization to search anybody who's on the premises," then there'd be no problem whatsoever. 

ALITO: The warrant said it was incorporated on the issue of probable cause. And I thought that reading it in a common-sense fashion, which is what we're supposed to do, that necessarily meant that the magistrate said, "There was probable cause to search anybody who's found on the premises, and that's what I'm authorizing you to do." 

KENNEDY: And that is what Judge Chertoff took strong exception in a very eloquent statement in talking about the protections and the reasons for the strict interpretation for the warrant. 

Let me move on. 

Judge Alito, your 3rd Circuit decisions don't exist in a vacuum. 

Mr. Chairman, at this point, since there has been some questions about whether we are flyspecking these cases, I'd like to include in the appropriate place in the record the Knight Ridder studies that concluded that Judge Alito never found a government search unconstitutional; the Yale Law School professors -- the rule for government is almost -- every case reviewed, this was their conclusion; The Washington Post stories with regard to the cases; and also Professor Cass Sunstein's conclusions that -- the studies that Judge Alito rules against individuals in 84 percent of the time. 

SPECTER: In accordance with our practices, if you want them in the record they will be there, without objection. 

KENNEDY: OK. 

So just looking at your writings and speeches, Judge Alito, you have endorsed the supremacy of the elected branch of government. You've clarified that today. 

KENNEDY: You argued that the attorney general should have the absolute immunity, even for actions that he knows to be unlawful or unconstitutional; suggested that the court should give a president's signing statement great deference in determining the meaning and the intent of the law; and argued, as a matter of your own political and judicial philosophy, for an almost all-powerful presidency. 

Time and again, even in routine matters involving average Americans, you give enormous, almost total, deference to the exercise of governmental powers. 

So I want to ask you about some of the possible abuses of the executive power and infringement on individual rights that we're facing in the country today. 

Judge Alito, just a few weeks ago, by a vote of 90-9, the Senate passed a resolution sponsored by Senator John McCain to ban the torture, whether it be here at home or abroad. As a former POW in Vietnam, John McCain knows a thing or two about torture. 

For a long time, the White House threatened to veto the legislation, and finally Senator McCain met with the president and convinced him to approve the anti-torture law. 

Two weeks after that, the president issued a signing statement -- no publicity, no press release, no photo-op -- where he quietly gutted his commitment to enforce the law banning torture. The president stated, in essence, that whenever the law of the land might be, whatever Congress might have written, the executive branch has the right to authorize torture without fear of judicial review. 

Now, I raise this issue with you, Judge -- I raise this with you because you were among the early advocates of the so-called presidential signing statements when you were a Justice Department official. 

You urged President Reagan to use the signing statements to limit the scope of laws passed by Congress, even though Article I of the Constitution vests all legislative powers in the Congress. 

You urged the president to adopt what you described as a "novel proposal" to issue statements aimed at undermining the courts use of legislative history as a guide to the meaning of the law. 

KENNEDY: You wrote these words: "The president's understanding of the bill should be just as important as that of Congress." 

With respect to the statement issued by President Bush reserving his right to order torture, is that what you had in mind when you wrote "the president's understanding of the bill should be just as important as that of Congress"? 

ALITO: When I interpret statutes -- and that's something that I do with some frequency on the Court of Appeals -- where I start and often where I end is with the text of the statute. And if you do that, I think you eliminate a lot of problems involving legislative history and also with signing statements. 

So I think that's the first point that I would make. 

Now, I don't say I'm never going to look at legislative history. And the role of signing statements in the interpretation of statutes is, I think, a territory that's been unexplored by the Supreme Court. And it certainly is not something that I have dealt with as a judge. 

This memo was a memo that resulted from a working group meeting that I attended. The attorney general had already decided that, as a matter of policy, the Reagan administration would issue signing statements for interpretive purposes and had made an arrangement with the West Publishing Company to have those published. 

And my task from this meeting was to summarize where the working group was going and where it had been. And I said at the beginning of the memo that this was a rough first effort to outline what the administration was planning to do. And I was a lawyer for the administration at the time. 

And then I had a big section of that memo saying "and these are the theoretical problems." And some of them are the ones that you mentioned. 

ALITO: And that's why I left it. And all of that would need to be explored to go any further. 

KENNEDY: Judge Alito, in the same signing statement undermining the McCain anti-torture law, the president referred to his authority to supervise the unitary executive branch. 

That is an unfamiliar term to most Americans, but the Wall Street Journal describes it as the foundation of the Bush administration's assertion of power to determine the fate of enemy prisoners, jailing U.S. citizens as enemy combatants without charging them. 

President Bush has referred to this doctrine at least 110 times, while Ronald Reagan and the first President Bush combined used the term only seven times. President Clinton never used it. 

Judge Alito, The Wall Street Journal reports that officials of the Bush administration are concerned that current judges are not buying into its unitary executive theory. So they're appointing new judges more sympathetic to their executive power claims. We need to know whether you're one of those judges. 

In the year 2000, in a speech soon after the election, you referred to the unitary executive theory as the gospel and affirmed your belief in it. 

So, Judge Alito, the president is saying he can ignore the ban on torture passed by Congress, that the courts cannot review his conduct. 

In light of your lengthy record on the issues of executive power, deferring to the conduct of law enforcement officials even when they are engaged in conduct that your judicial colleagues condemn -- Judge Chertoff, Judge Rendell -- subscribing to the theory of unitary executive which gives the president complete power over the independent agencies, the independent agencies that protect our health and safety, believing that the true independent special prosecutors investigate wrongdoing are unconstitutional, referring to the supremacy of the elected branches over the judicial branch, and arguing that the court should give equal weight to a president's view about the meaning of the laws that Congress has passed, why should we believe that you'll act as an independent check on the president when he claims the power to ignore the laws passed by Congress? 

ALITO: Well, Senator, let me explain what I understand the idea of the unitary executive to be. And I think there has been some misunderstanding, at least as to what I understand this concept to mean. 

I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power. 

The second question is: When you have the power that is within the prerogative of the executive, who controls the executive? 

Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president. 

ALITO: Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed, not some inherent power but a power that is explicitly set out in the Constitution. 

KENNEDY: Would that have any affect or impact on independent agencies? 

ALITO: The status of independent agencies I think is now settled in the case law. 

This was addressed in Humphrey's Executor way back in 1935 when the Supreme Court said that the structure of the Federal Trade Commission didn't violate the separation of powers and that it was revisited and reaffirmed in Wiener v. the United States in 1958. 

KENNEDY: So your understanding of any unitary presidency, that they do not therefore have any kind of additional kind of control over the independent agencies than has been agreed to by the Congress and signed into law at the prior time? 

ALITO: I think that Humphrey's Executor is a well-settled precedent. 

What the unitary executive I think means now, we would look to Morrison I think for the best expression of it. And it is that things cannot be arranged in such a way that interfere with the president's exercise of his power on a functional -- taking a functional approach. 

KENNEDY: I want to just mention this signing of the executive understanding of the legislation that we passed banning torture, what the president signed on to. 

"The executive branch shall construe the Title X and Division A relating to detainees in a matter with the constitutional authority of the president to supervise the unitary executive branch as the commander in chief and consistent with the constitutional limitations on judicial power." 

KENNEDY: Therefore, it's the warning that the courts are not going to be able to override the judgments and decisions. That's certainly my understanding of those words, which will assist in achieving the shared objective of the Congress and the president. 

That statement there, in terms of what was agreed to by Congress, 19-0, by John McCain, by President Bush, and then we have this signing document which effectively just undermines all of that -- it is something that we have to ask ourselves, whether this is the way that we understand the way that laws are to be made. 

It was very clear in the Constitution who makes the laws. The executive -- Congress and the Senate makes it. The president signs it. And that's the law. That's the law. 

These signing statements, and recognizing the signing statements and giving these value in order to basically undermine that whole process is a matter of enormous concern. 

Thank you. 

SPECTER: Judge Alito, Senator Kennedy had noted that there were substantial gains, as he put it, in the Vanguard stock, or the Vanguard the asset, during the period of time that you held them. But he did not give you an opportunity to answer that. I don't like to interrupt in the midst of a series of questions, but you can respond to that if you care to do so at this time. 

ALITO: Well, Mr. Chairman, I had additional holdings in Vanguard during my period of service. But I think the important point as far as that is concerned is that nobody has claimed that I had anything to gain financially from participating in this case. And I certainly did not. 

SPECTER: Senator Grassley? 

GRASSLEY: Well, I have a much more positive view of you than has just been expressed. 

(LAUGHTER) 

And I can't be cynical about your judging. In fact, maybe from what I have criticized the Supreme Court in a long period of time, I might feel you're too cautious, too willing to follow precedent. 

But I think in regard to Vanguard, the point ought to be made that you did nothing wrong. You didn't violate any law or any ethics rule. 

And the point's being made that maybe you did not remember a promise you had made to this committee -- well, let me assure you, don't lose any sleep over that. If senators kept every word they made to their constituents, there wouldn't be any senators left. 

(LAUGHTER) 

And so there's always shortness of memory, and without ill intent, whether it's on the part of a senator or whether it's on the part of Judge Alito. 

I hope the viewing public is impressed by your intellect and your legal capabilities and your judicial record. Clearly, they're seeing that you have the kind of background and practical experience that it takes to be a Supreme Court justice. 

In addition, I think you've demonstrated now, after five or six of us asking your questions, that you're very candid in answering questions so far and being honest with our committee. 

These nomination hearings that we're holding are, of course, a unique opportunity for all of us, senators and the public, to explore more in-depth how Supreme Court nominees view the roles of justice, how a nominee approaches constitutional interpretation and precedent, as well as a nominee's appreciation of the separate branches of government. 

GRASSLEY: And you've been involved in all of those discussions already this morning. 

It's unfortunate that some extreme liberal groups have attacked your commitment to the law, as well as your honesty and integrity. But now you're doing your best, and I think doing a good job of setting the record straight. 

So before I ask you some questions, I want to bring up some of these issues that have been brought up against you. And you do not necessarily have to respond in any way. I just think it's points that ought to be made as I see you. And I'm only one senator, but I think I've had a good opportunity to study you and particularly your cases. 

I would like to address these ethics charges that we have seen generated by some of the left-wing liberal interest groups and even my colleagues on the other side of the aisle. These allegations are just plain absurd. 

And you're going to see some charts that hopefully will be held up that I'm not going to point to, but bring up some of these charges. Because I think that we want to prove that these allegations are absurd. 

It is puzzling to me that anyone would actually believe these claims, especially when people who know Judge Alito the best, people who have known him for a long period of time and who've worked closely with him, better than any of our senators would know you, they all say you're a man of honor, integrity and principle. They have no question about that. 

The fact is that the ABA looks at issues such as integrity and ethics when it evaluates a judicial nominee. And it found you, Judge Alito, to be unanimously well qualified, a rating that Democrats have always claimed to be a gold standard. The ABA didn't find a problem with Judge Alito's record. 

GRASSLEY: Moreover, several leading ethicists from across the political spectrum reviewed these allegations and they all agreed that you, Judge Alito, acted properly and that none of these charges have merit. 

It says, in a letter from George Mason University president law professor Robert Rotunda, already referred to by members and in a letter to Chairman Specter, quote, "Neither federal statute nor federal rules nor model code of judicial conduct of the American Bar Association provide that a judge should disqualify himself in any case involving a mutual fund company" -- and they give as examples Vanguard, Fidelity, T. Rowe Price -- "simply because a judge owns mutual funds that the company manages and holds in trust for a judge," end of quote. 

So, basically, according to law, Judge Alito was not required to recuse himself in the Vanguard case, but he did it anyway. 

So let me repeat, five leading ethicists all say Judge Alito did nothing wrong. Professor Thomas Morgan, quote: "In my opinion, Judge Alito's participation in the Vanguard case was in no way improper nor does it give any reason to doubt that he would fully comply with his ethical responsibilities if confirmed." 

And Professor Stephen Lubet and David McGowan wrote: "You do not need to be a fan of Alito's jurisprudence to recognize that he is a man of integrity. Other judges and justices would do well to follow this example," end of quote. 

GRASSLEY: In addition, no complaint filed against Judge Alito has ever been validated. And to top it off, we've heard glowing statement after glowing statement from folks closest to the judge -- your law clerks, Republicans and Democrats alike, as well as lawyers and judges who practice before and worked with the judge on a daily basis. 

These people know this nominee best, and they all say that he's a man of humility, a man of principle, and they don't have any question about the judge's integrity. 

So it is patently unfair that some folks intent on torpedoing this nomination are trying to give these allegations weight that they don't deserve. It should be clear to everyone that this is a blatant tactic to tar Judge Alito's honorable and distinguished judicial record. And I hope this puts to rest these outrageous claims that Judge Alito doesn't have the integrity to be a Supreme Court justice. It's outlandish and should be rejected. 

I'm now getting to a question that I want to ask you about executive power. 

Some of your critics have questioned your ability -- and we've just heard it recently -- to be independent from the executive branch. They pointed principally to your work as a lawyer for the Department of Justice 20 years ago, suggesting that you would just rubber-stamp administration policy. I'd like to give you an opportunity to address. 

So, Judge Alito, do you believe that the executive branch should have unchecked authority? 

ALITO: Absolutely not, Senator. 

GRASSLEY: Judge Alito, you do understand that under the doctrine of separation of powers, the Supreme Court has an obligation to make sure that each branch of government does not co-opt authority reserved to the coordinate branch? 

GRASSLEY: And do you understand that when constitutionally protected rights are involved, the courts have an important role to play in making sure that the executive branch does not trample those rights? 

ALITO: I certainly do, Senator. Each branch has very important individual responsibilities, and they should all perform their responsibilities. 

GRASSLEY: And so clarify for me: Do you believe that the president of the United States is above the law and the Constitution? 

ALITO: Nobody in this country is above the law, and that includes the president. 

GRASSLEY: Judge Alito, would you have any difficulty ruling against the executive branch or the federal government if it were to overstep its authority in the Constitution? 

ALITO: I would not, Senator. I would judge the cases as they come up. And I believe very strongly in the independence of the judiciary. I've been a member of the judiciary now for the past 15.5 years and I understand the role that the judiciary has to play. 

And one of its most important roles is to stand up and defend the rights of people when they are violated. 

GRASSLEY: This first question is very general. It's a new area. I'd like to explore in detail what you understand to be the proper role of a judge in democratic society. So could you generally give me what your views are on this approach? 

ALITO: Yes. Our Constitution sets up a system of government that is democratic. So the basic policy decisions are made by people who are elected by the people, so that the people can control their own destiny. 

ALITO: But the Constitution establishes certain principles that can't be violated by the executive branch or by the legislative branch. It sets up a structure of government that everybody has to follow and it protects fundamental rights. 

And it is the job of the judiciary to enforce the provisions of the Constitution and to enforce the laws that are enacted by Congress in accordance with the meaning that Congress attached to those laws; not to try to change the Constitution, not to try to change the laws, but to be vigilant in enforcing the Constitution and in enforcing the laws. 

GRASSLEY: What do you think about judges allowing their own political and philosophical views to impact on any jurisprudence? 

And, secondly, do you believe that there is any room for a judge's own value or personal beliefs when he or she interprets the Constitution? 

ALITO: Judges have to be careful not to inject their own views into the interpretation of the Constitution and, for that matter, into the interpretation of statutes. That's not the job that we are given. That's not authority that we are given. 

Congress has the lawmaking authority. You have the authority to make the policy decisions. And it's the job of the judiciary to carry out the policy decisions that are made by Congress when it's enacting statutes. 

GRASSLEY: Further explanation on that point, three subparts. 

Do you believe that justices should consider political dimensions of controversial cases? 

Do you believe that when faced with hard cases the Supreme Court should look at pleasing the home crowd or splitting the baby? 

And what is the proper role of the Supreme Court in deciding highly charged cases, meaning most -- I suppose in most cases we'd be talking about politically charged cases? 

ALITO: The framers of the Constitution made a basic decision when they set up the federal judiciary the way they set it up. 

And there's a reason why they gave federal judges life tenure, and that is so that they will be insulated from all of the things that you mentioned; they will not decide cases based on the way the wind is blowing at a particular time; that in a time of crisis, for example, when people may lose sight of fundamental rights, the judiciary stands up for fundamental rights; that it is not reluctant to stand up for the unpopular and for what the court termed insular minorities; that the judiciary and enforces the Constitution and laws in a steadfast way, and not in accordance with the way the wind is blowing. 

GRASSLEY: Let us look at the Bill of Rights and many other amendments that are often phrased in broad, spacious terms. 

If a judge was so inclined, he or she could expand on the interpretation, use and effect of many provisions of the Constitution. 

Do you agree with the school of thought that takes the position that when Congress and the executive branch are slow or do not act in a particular manner -- act at all, let's say -- then the Supreme Court would have a license to create solutions based on some of the broad wording contained in the Constitution? 

Do you think that this is a proper role for the Supreme Court or do you take the position that judges have a duty to respect constitutional restraints? 

ALITO: Judges have to respect constitutional restraints. They have to exercise what's called judicial self-restraint, because there aren't very many external checks on the judiciary on a day-to-day basis. 

So the judiciary has to restrain itself and engage in a constant process of asking itself, "Is this something that we are supposed to be doing, or are we stepping over the line and invading the area that is left to the legislative branch?" for example. 

The judiciary has to engage in that on a constant basis. 

GRASSLEY: Well, just suppose that Congress had not even acted in a certain area, and there are people that are bringing cases before the court that would give an opportunity to fill in on something that Congress didn't do. What about it? 

ALITO: The judiciary is not a lawmaking body. Congress is the lawmaking body. 

Congress has the legislative power. And the judiciary has to perform its own role and not try to perform the role of Congress or the executive. 

GRASSLEY: I don't know whether you've ever had a case where you're dealing with problems that the framers, maybe in broad ways in the Constitution, couldn't have provided for. But how would you apply the words of the Constitution, then, to problems that the framers could not have foreseen? 

ALITO: There are very important provisions of the Constitution that are not cast in specific terms, and I think for a good reason. They set out a principle. And then it is up to the judiciary to apply that principle to the facts that rise during different periods in the history of our country. 

ALITO: And the example that I like to cite here is the prohibition against unreasonable searches and seizures in the Fourth Amendment. 

Now this goes all went back to the adoption of the Fourth Amendment at the end of the 18th century, and most of the types of searches that come up today are things that the framers never could have anticipated. They couldn't foresee automobiles or telephones or cell phones or the Internet or any of the other means of communication that have presented new search and seizure issues. 

But they set out a good principle. And the principle is that searches can't be carried out unless they're reasonable. And generally there has to be a warrant issued by a neutral and detached magistrate before a search can be carried out. 

And so as these new types of searches have arisen, new means of communication have come into practice, the judiciary has applied this principle and the legislative branch has applied the principle -- in statues like the wiretapping statute -- to the new situations that have come up. 

GRASSLEY: What factors, if any -- and there may not be any -- but what factors, if any, are there which can affect a judge's interpretation of the text of the Constitution? Can these factors be determined and applied without involving personal bias of judges? 

ALITO: I think they can. There would be no, I think, basis for judges to exercise the power of judicial review if they were doing nothing different from what the legislature does in passing statutes. 

ALITO: So judges have to look to objective things. 

And if it is a question of absolutely first impression -- and they're aren't that many constitutional issues that arise at this point in our history that are completely issues of first impression -- you would look to the text of the Constitution and you would look to anything that would shed light on the way in which the provision would have been understood by people reading it at the time. 

You certainly would look to precedent, which is an objective factor. And most of the issues that come up in constitutional law now fall within an area in which there is a rich and often very complex body of doctrine that's worked out. 

Search and seizure is an example. Most of the issues that arise concerning freedom of speech is another example. There is a whole body of doctrine dealing with that. And that's objective. And you would look to that and you would reason by analogy from the precedents that are in existence. 

GRASSLEY: Let me bring up the tension between majority rule and individual freedoms. 

This involves the tensions between the American ideal of democratic rule and the concept of individual liberties, where neither the majority nor the minority can be fully trusted to define the proper spheres of our democratic authority and liberty. 

I assume that you agree that there is tension that has to be resolved. 

ALITO: There is tension because our system of government is fundamentally a democratic system. As I said, the authority to make the basic policy decisions that affect people's lives, most of those decisions are to be made by the legislature and by the executive in carrying out the law. 

But the judiciary has the responsibility to exercise the power of judicial review. And so if something comes up that violates the Constitution that has been established now going all the way back to Marbury v. Madison, if that comes up in a case, it is the duty of the judiciary to say what the law is and to enforce the law in that decision. 

And if that means saying that something that another branch of government has done is unconstitutional, then that's what the judiciary has to do. 

GRASSLEY: How would you go about your duties as a justice in determining where the right of the silent majority ends and where the right of the individual begins? What principles of constitutional interpretation help you to begin your analysis of whether a particular statute infringes upon some individual right? 

ALITO: I would look to the text of the provision. I would look to anything that sheds light on what that would have been understood to mean. I would look to precedent. 

And as I mentioned a minute ago, I think that in most of the areas now where constitutional issues come up with some frequency, there is a body of precedent. And that shapes the decision. That's generally what is going to dictate the outcome in the case. 

And if it's a new question, then usually the judiciary will see where it fits into the body of precedent and reason by analogy from prior precedents. 

GRASSLEY: Some judges and scholars believe that in resolving this dilemma, the court's obligation to the intent of the Constitution are so generalized and remote that judges are free to create a Constitution that they think best fits today's changing society. 

What do you think of such an approach? 

ALITO: Judges don't have the authority to change the Constitution. The whole theory of judicial review that we have, I think, is contrary to that notion. The Constitution is an enduring document and the Constitution doesn't change. 

It does contain some important general principles that have to be applied to new factual situations that come up. But, in doing that, the judiciary has to be very careful not to inject its own views into the matter. It has to apply the principles that are in the Constitution to the situations that come before the judiciary. 

GRASSLEY: I think you heard in opening comments of some of the members of this committee that they view the courts as a place taking the lead in creating a more just society. Is that a role for the courts? And -- I don't know whether you want to call this judicial activism, but I would -- is it ever justified? 

ALITO: Well, I think that if the courts do the job that they're supposed to do, they will, we will produce a more just society. I think if you take the position as a federal judge, you have to have faith that if you do your job then you will be helping to create a more just society. The Constitution and the constitutional system that we have is designed to produce a just society. 

ALITO: It gives different responsibilities to different people. You could think of a football team or you could think of an orchestra where everybody has a different part to play, and the whole system won't work if people start playing performing the role of someone else. 

Everyone in the system has to perform their role, and I think you have to have faith, and I think it's a well-grounded faith that if you do that, if the judiciary does what it is supposed to do, the whole system will work toward producing a more just society. 

GRASSLEY: I want to go back and expand on a point I referred to as maybe Congress not acting sometime and what the court should do about that. This is a line of questioning that I also asked Chief Justice Roberts when he was before us. At that time, I referred to the confirmation of Justice Souter, and Justice Souter responded to my questions regarding the interpretation of statutory law by speaking about the courts filling vacuums in law left by Congress. 

Do you believe that the Supreme Court should fill in vacuums in the law left by Congress or is this a way for justices to take an activist role in that they get to decide how to fill in generalities and resolve contradictions in law? 

If you are confirmed to the Senate, do you believe that your job is to fill in vacuums? 

ALITO: Well, I don't know exactly what Justice Souter was referring to when he said that. But just speaking for myself, I think that it is our job to interpret and to enforce the statutes that Congress passes and not to add to those statutes and not to take away from those statutes. 

GRASSLEY: Further, on judicial restraint, are there any situations where you believe it is appropriate for the Supreme Court justice to depart from the issue at hand and announce broad, sweeping constitutional doctrine? 

GRASSLEY: And if you do, could you please describe in detail what those circumstances might be? 

ALITO: I think judges should decide the case that is before them. I think it's hard enough to do that and get it right. 

And if judges begin to go further and announce and decide questions that aren't before them or issue opinions or statements about questions that aren't before them, from my personal experience, what happens when you do that is that you magnify the chances of getting something wrong. 

When you have an actual, concrete case or controversy before you, you focus on that, it improves your ability to think through the issue and it focuses your thinking on the issue. And it makes for a better decision if you just focus on the matter that is at hand and what you have to decide and not speak more broadly. 

If you speak more broadly, I think there's a real chance of saying something that you don't mean to say or suggesting something that you don't mean to say and deciding questions before they've been fully presented to you, before you've heard all the arguments about this other question that isn't really central to the case that is before you. 

GRASSLEY: You might sometime be faced with what people might call a bad law or some unpopular law, which, nonetheless, might be constitutional. Do you believe that -- I guess the question should be what do you believe the court's role in that instance? 

GRASSLEY: Is the court ever justified in correcting what might be a problem out there, presumably created by a law Congress passed? 

ALITO: The courts do not have the authority to repeal statutes or to amend statutes. And so once a court has determined what a statute means, then it's the obligation of the courts to enforce that statute. 

Now, sometimes when a case of statutory interpretation comes before a court and your first look at the statute seems to produce an absurd result, let's say, or a very unjust result, then I think the judiciary has the obligation to go back and say, "Well, is this really what the statute means? Because the legislature generally is not going to want to produce a result like that, so maybe our first look at this statute has produced an interpretation that it's an incorrect statute." 

So I think we have to do that. 

And occasionally, a statute will come along or an administrative regulation will come along, and the way it's applied in a particular case shows that there's a problem with the statute or the regulation that maybe Congress didn't anticipate or the administrative agency didn't anticipate. 

And in those instances, while I think it is the obligation of the judiciary to apply the statute that is before the judiciary, I think it's proper for us to say, "Look, this shows how this statute or this regulation plays out in the real world in this situation. And maybe you didn't think about that. And maybe that's something that you want to take into account if you're going to revise the statute or issue a new regulation." 

I think those are proper roles for us. 

GRASSLEY: What is your position regarding results-oriented jurisprudence, where the rationale is made secondary to the actual result reached? When, if ever, is results-oriented jurisprudence justified? 

ALITO: Results-oriented jurisprudence is never justified because it is not our job to try to produce particular results. We are not policy-makers and we shouldn't be implementing any sort of policy agenda or policy preferences that we have. 

GRASSLEY: In the past few decades, certain interest groups and legal scholars and even some members of Congress have tried to convert the Supreme Court from a legal institution into political, social and cultural ones. 

Because of this, the court has morphed in that direction, I believe, becoming a battlefield for warring interests groups who are raising and spending millions of dollars on disinformation campaigns and Web site blogs. There are even blogs going on all the time about this hearing. 

Do you think it's because the Supreme Court has injected itself into policy issues better left to the elected branches of government? Or has the Supreme Court tried to act as, kind of, a roving commission attempting to solve perceived societal problems? Or maybe it's none of the above. 

What do you think can be done to restore the sense of constitutional balance between the Supreme Court and the executive and legislative branches of government, understanding all are coequal? 

ALITO: Well, I think the branches are coequal. And I think that the judiciary as a whole, including the Supreme Court, must always be mindful of the role that it is supposed to play in our system of government. 

It has an important role to play, but it's a limited role. And it has to do what it is supposed to do vigilantly, but it also has to be equally vigilant about not stepping over the bounds and invading the authority of Congress or invading the authority of the executive or other government officials whose actions may be challenged. 

I think the challenge for the judiciary. 

GRASSLEY: Thank you, Judge Alito. 

SPECTER: Thank you, Senator Grassley.

BIDEN: Thank you, Mr. Chairman. 

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

Judge, I'd like to say a few very brief things at the outset. I'm puzzled, and I suspect you may be puzzled, by some of the questions. I don't think anybody thinks you are a man lacking in integrity. I don't think anybody thinks that you are a person who's not independent. 

I think that what people are wondering about and puzzled about is not whether you lack independence, but whether you independently conclude that the executive trumps the other two branches. 

They wonder, when you -- granted, it's back in '85 or '84 when you wrote, "I do not question the attorney general should have this immunity as absolute immunity but, for tactical reasons," et cetera. 

So people are puzzled -- at least some are puzzled. And so I don't want you to read any of this as -- at least from my perspective, as I've read it so far -- that people think that this is a bad guy. 

BIDEN: I mean, what people are puzzled about with the recusal issue was, under oath you said, "I will recuse myself on anything relating to...," and then a case comes up. So they're looking for an explanation. 

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

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

And one of the things -- this is not part of a line of questioning I wanted to ask -- but I did ask you when you were kind enough to come to my office about the Concerned Alumni of Princeton. Were you aware of some of the other things they were saying that had nothing to do with ROTC? Because there was a great deal of controversy. 

I mean, I can remember -- I can remember this. My son was -- well, anyway, he ended up going to that other university, University of Pennsylvania. 

But I remember at Princeton, I had spoken on campus in the early '70s. This was a big thing up at Princeton at the Woodrow Wilson School. And I remember -- I didn't remember Bill Frist, but I remember that there was this disavowing, that Bill Bradley, this great basketball star, and now United States senator, was disassociating himself with this outfit, that there was a magazine called Prospect. I remember the magazine. 

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

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

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

BIDEN: Well, it was a pretty outrageous group. I mean, I believe you that you were unaware of it. But here I was, University of Delaware graduate, a sitting United States senator, I was aware of it because I was up there on the campus. I mean, it was a big deal. It was a big deal, at least in our area of the Delaware Valley, if Princeton, Penn, the schools around there had this kind -- because the big thing was going on at Brown at the time as well. 

And by the way, for the record, I know you know when you stated in your application that you are a member -- you said in '85, "I am a member" -- they had restored ROTC. ROTC was back on the campus. 

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

(LAUGHTER) 

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

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

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

The other thing is, Judge, the other thing you should be aware of -- and do not take this personally, what's going on here -- every nominee that comes before us is viewed by all the senators -- left, right, center, Democrat, Republican -- at least on two levels, at least in my experience here. 

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

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

Everybody wrote with Roberts after the fact that a lot of people voted for Roberts that were doubtful. I was doubtful, I voted no. But he was replacing Rehnquist. So Roberts for Rehnquist, you know, what's the worst that can happen, quote/unquote, or the best that can happen? 

(LAUGHTER) 

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

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

So, I mean -- but you're replacing -- I mean, we can't lose this and so people understand this. You are replacing someone who has been the fulcrum on an otherwise evenly divided court. And a woman who's -- most scholars who write about her, and in a retrospective about her, say this is a woman who viewed things from -- the phrase you've used -- a real-world perspective. This was a former legislator, this was a former practitioner, this was someone who came to the bench and applied -- to her critics, she applied too much common sense. Critics would say that she was too sensitive to the impact on individuals, you know, that -- what would happen to an individual. 

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

BIDEN: It's just important you understand, at least for my questioning, that this goes beyond you. It goes to whether or not your taking her seat will alter the constitutional framework of this country by shifting the balance 5-4, 4-5, one way or another. 

And that's the context in which, at least, I want to ask you my questions after trying to get some clarification, or getting some clarification from you on concern Princeton. Because, again, a lot of this just is puzzling; not not able to be answered, just puzzling. 

Judge, you and I both know -- and clearly one of the hallmarks, at least in my view, of Justice O'Connor's position was, she fully understood the real world of discrimination. I mean, she felt it. 

Graduated number two in her class from Stanford, couldn't get a job, was offered a job by law firms -- granted, she was older than you are, but couldn't get a job because she was a woman; they'd offer her a job as a secretary. 

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

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

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

I mean, there's all different ways in which now it's become so much more subtle. And that's why we all, Democrat and Republican, wrote Title VII. We wrote these laws to try to get at what we observed in the real world. 

What we observed in the real world is it's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists. 

And so I'd like to talk to you about a couple of anti- discrimination cases. One is the Bray case. In that case, a black woman said she was denied a promotion for a job that she was clearly qualified for. There was no doubt she was qualified. And she said, "I was denied that job because I'm a black woman." 

And it was, as I said, indisputable she was qualified. It was indisputable that the corporation failed to follow their usual internal hiring procedures. And the corporation gave conflicting explanations as to why they reached the decision to hire another woman who they asserted was more qualified than Ms. Bray. 

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

And Ms. Bray's attorney appealed and it went up to the 3rd Circuit. And you and your colleagues disagreed. Two of your colleagues said, you know, Ms. Bray should have a jury trial here. And you said "No, I don't think she should," and you set out a standard, as best I can understand it. I want to talk to you about it. 

And your colleagues said that if they applied your standard in Title VII cases, discrimination cases, that it would effectively -- their words -- eviscerate Title VII because, they went on to say, it ignores the realities of racial animus. 

BIDEN: They went on to say that racial animus runs so deep in some people that they're incapable of acknowledging that a black woman is qualified for a job. 

But, Judge, you dismissed that assertion. You said that the conflicting statements that the employer made were just loose language, and you expressed your concern about allowing disgruntled employees to impose cost of a trial on employers. And so your colleagues thought you set the bar, I think it's fair to say, pretty high in order to make the case that it should go to a jury. 

Can you tell me what the difference is between a business judgment as to who's most qualified -- you said, "This comes down to subjective business judgment" -- and discrimination? You said, "Subjective business judgment should prevail unless the qualifications of the candidate are extremely disproportionate." 

What's the difference between that in today's world and discrimination? I know you want to eliminate discrimination. Explain to me how that test is distinguishable from just plain old discrimination. 

ALITO: Well, this case was one of quite a few that we get that are on the line. And when you think about the nature of the appellate system, it stands to reason that it's going to work out that way. The really strong cases tend to settle; the really weak cases are either dismissed and not appealed or they settle for a modest amount. So the ones that are hotly contested on appeal tend to be the ones that are close to the line, whatever the legal standard is. 

ALITO: Now, four federal judges looked at the facts in this case. One was Judge Maryanne Trump Barry, who was then the district court judge and is now one of my colleagues on the 3rd Circuit. I was one. And we thought the evidence was not quite sufficient. 

And then my colleague Theodore McKee and Judge Greene, a district court judge from Philadelphia, fine district court judge sitting by designation, thought that the evidence was sufficient. 

And I think that division illustrates this was a factual case on which reasonable people would disagree. This was a case in which there was no direct evidence of discrimination. And I could not agree with you more that we can't stop there. There are subtle forms of discrimination and the judicial process has to be attentive to the fact that discrimination exists and, today, a lot of it's driven underground. 

But all there was in this case were -- all that the plaintiff could point to, to show that there were facts from which you could infer discrimination, were a very -- what looked like a really minor violation of the company's internal practices. 

They had a policy under which if somebody was being considered for a promotion, they would interview that person and they would decide, "We're going to promote or we're not going to promote." And if they decided we're not going to promote, then they were supposed to tell that person, "We've decide we're not going to promote you," before they go on to interviewing the next person. 

And in this instance, it appeared that they interviewed Ms. Bray and they decided they weren't going to promote her, and then they interviewed the other candidate, Ms. Reel (ph), before they told Ms. Bray that they weren't going to promote her. They had nothing to gain by doing that. So it's a fact to be considered. 

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

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

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

People don't say anymore, "I'm not going to hire that man over there because he is black or he is Jewish or she is a woman." They don't do that anymore. 

What they do is, they look around and they keep looking until they find someone -- "Ah-ha, I've got one here who's a Rhodes Scholar, I've got one here who's a white male who happened to have experience doing it." That's why they had that rule. 

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

That's why the corporation set that rule up: "Interview the one inside the company, that was our practice to hire inside; tell them they had the job or not," so that the supervisor, who may not want to work with a black woman, doesn't get a chance to go, "I'm going to keep looking. Fine me somebody who has some experience somewhere else." 

That's why they had the rule, right? 

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

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

ALITO: They were both Marriott employees. And I think they were both being considered for the position at the time. So, it wasn't an instance in which they interviewed Ms. Bray and then they said, well, she's qualified but we really don't want to hire her; let's keep looking. 

If there had been evidence to that effect, then I would certainly think, for the reasons that you have outlined, that you could draw a pretty substantial inference of an intent to discriminate from that. 

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

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

The person who was giving up the job said, in my opinion, I let it be known to the Mr. Joston (ph), the guy doing the hiring and which Mr. Joston (ph) was aware that (inaudible) was more than qualified to take over my positions as director of services of Park Ridge. To this day -- this is a quote -- "I cannot understand why she was not offered the position." 

That was in the record. It was in the record that Joston (ph) had said in the deposition under oath, "She's not qualified," when she clearly was qualified. 

I mean, I guess what I'm curious about is why, in a close case like this, wouldn't you let the jury decide it? 

Why did you become essentially the trier of fact? I mean, what was your thinking? 

ALITO: Well, my thinking was that the standard we were to apply was, could a reasonable jury find that discrimination was proven here. And it was my view and it was the view of the district judge that a reasonable jury couldn't find that. 

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

ALITO: Now I didn't say that and I didn't think that. And I thought that they had somewhat different qualifications, and a reasonable person could view it either way. But it just wasn't anything that I saw that a reasonable person could point to as a basis for a reasonable inference of an intent to discriminate. 

BIDEN: Well, again, I'm puzzled by this, just trying to understand your reasoning, because as you accurately point out, you didn't say the one was more qualified, you said they were equally qualified. And that's what puzzled me. 

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

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

But let me move on to another case, if I may: the Sheridan case, another discrimination case. Again, a little puzzling to me. This is a case where you were the only judge in this circumstance, out of the 11 judges on your circuit who heard the appeal, who ruled that a jury trial should have been overruled -- a jury verdict would have been overruled. 

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

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

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

And there were more than one issue. One was whether this was an vindictive -- I forget the proper phrase -- or whether or not she should have been promoted. The third was whether she was constructively discharged. 

And the jury heard the case and said we conclude she was constructively discharged -- i.e., she was basically forced out -- and she was forced out because she was being discriminated against. And 10 out of your colleagues reached that same conclusion. 

But you said -- and this is what I want you to explain to me -- you said an employer may not wish to disclose his real reasons for taking punitive action against someone or not hiring someone or for his animosity toward someone. And you went on to say the reason for the animosity on the part of the employer might be based on sheer personal antipathy, which is OK. 

Now, again, this is a matter of real world versus theoretically. Can you tell me how you can tell the difference when an employer is saying, "Ms. Feinstein, I am not going to hire you because the person seeking the job has a Rhodes scholarship and I like him better," and it turns out they weren't a Rhodes scholar? The real reason is, "I just don't like your glasses. I do not like the way you look." And I'm not being facetious... 

(CROSSTALK) 

(LAUGHTER) 

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

BIDEN: But all kidding aside, I mean, that's how it read to me; that sheer personal antipathy is OK, even when the employer's reason for not hiring the person toward whom they showed sheer personal antipathy weren't true. 

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

ALITO: Well, this case concerned an issue that had really divided the Courts of Appeals at the time when our court addressed it. 

And the courts of appeals -- this gets into a fairly technical question involving a Supreme Court case called the McDonnell Douglas case. 

But to put it in simple terms, the courts of appeals had divided into three camps on this. There was the pretext plus camp, which was the one that was the least hospitable to claims by employees. There was the pretext only camp, which was the camp that was most favorable to employees. And there was the middle camp. 

And my position was in the middle camp. And when the issue went to the Supreme Court -- and it did a couple of years later -- in Reeves v. Sanderson Plumbing, Justice O'Connor wrote the opinion for the Supreme Court and she agreed with my analysis of this legal issue; that, in most instances, pretext is sufficient. 

In fact, in the vast majority of instances, if the plaintiff can show or create -- point to enough evidence to show that the reason given by the employer is a pretext is incorrect, then that's enough to go to the jury. 

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

BIDEN: Well, I went back and read Reeves, and I looked at O'Connor's statements. And with all due respect, you could argue she used the same standard, but it's clear to me she would reached a different conclusion. She would have been with your 10 colleagues. 

Here's what she said. She said in the Reeves case that she would not send a case to the jury if, and I'm quoting, "one, the record conclusively revealed some other nondiscriminatory reason for the employer's decision." 

I fail to see how the record conclusively showed that, and I doubt whether she would have seen that. 

"Or, two" -- continuing to quote -- "if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and" -- and -- "there was abundant uncontroverted evidence that no discrimination had occurred." 

It seems to me she's much more prepared to give the benefit of the doubt to the employee in that situation and you're much more prepared to give the benefit of the doubt to the employer. 

I mean, by her own language, I find it hard to figure how she would have reached the same substantive conclusion that you did, that a jury trial wasn't appropriate, notwithstanding the fact, I think you make a good point, that the test, she said, was more like the test, you said, but the real world outcome, I think, she would have been -- presumptuous of me to say it -- I think it would have been 11-1 and not 10-2 had she been on the court. But who knows? 

ALITO: Well, Senator, I think the vote on my court was a reflection of the standard that they applied, and they did not apply the Reeves v. Sanderson Plumbing standard. Of course, Reeves hadn't been decided at that point. 

But they applied the standard that said if the plaintiff can create a fact issue as to whether it was pretextual, then that alone is sufficient. So they didn't get into an evaluation of the sort of evidentiary points that you were mentioning. 

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

ALITO: They did. 

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

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

It seems to me that's what you did. In my view, that's what you did. That's the conclusion you reached in the Sheridan case. She overruled in Reeves, as I read it. But at any rate, as someone once said, it's your day job, and we do this part time. We have other things like wars and foreign policy to deal with, so I'm not presuming to be as knowledgeable about this as you do. 

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

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

BIDEN: But I should tell you now, I want to talk to you about, again, the real world here and, kind of, the effects test. 

And so for me, Judge, where I still remaining somewhat puzzled is on whether or not you, whether it's applying the unitary executive standard and what you mean by that or whether it is the assertions made relative to how to look at discrimination cases, which are difficult, you seem to come down -- I'm not associating myself with the studies done -- I don't know enough to know whether they're correct or not -- by Cass Sunstein and others; I don't disagree with them. 

But as I've tried diligently to look at your record, you seem to come down more often and give the benefit of the doubt to the outfit against whom discrimination is being alleged. You seem to lean -- in close cases, you lean to the state versus the individual. 

Now, again, a lot of constitutional scholars would argue that's perfectly correct. All I'm suggesting is if I'm right -- and we'll get a chance to do this again -- if I'm right, that would be a change that will occur, more than subtle, on the bench, on this court, on a closely divided court, which would take it in a direction that I am not as comfortable with as others may be. 

But at any rate, you've been very gracious. I appreciate you being responsive. 

And I thank the chair. And I want to note for maybe the first time in history, Biden's 40 seconds under his time. 

(LAUGHTER) 

SPECTER: Thank you very much, Senator Biden. 

SPECTER: We greatly appreciate it. 

We're going to stay in session for just 10 more minutes. 

And I call now on Senator Kyl. 

KYL: Thank you, Mr. Chairman. 

Mr. Chairman, let me begin by just asking the witness if you'd like to comment again on the unitary executive. I have this specifically in mind because, while I think I understood your explanation of it, Senator Biden just referred to it. And I thought maybe it would be useful to draw the distinction that I heard you draw with respect to your discussion of the unitary executive power, if you could do that please. 

ALITO: Yes, certainly, Senator. 

As I understand the concept, it is the concept that the president is the head of the executive branch. The Constitution says that the president is given the executive power. 

And the idea of the unitary executive is that the president should be able to control the executive branch, however big it is or however small it is, whether it's as small as it was when George Washington was president or whether it's big as it is today or even bigger. 

It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of executive power. It does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers. 

So it's the difference between scope and control. And as I understand the idea of the unitary executive, it goes just to the question of control; it doesn't go to the question of scope. 

KYL: Of who, eventually, has the last say about executive power, which would be the president. 

ALITO: Right. 

KYL: Thank you. 

Now, I want to also ask you a question which was asked of Judge Bork in his confirmation hearing. And his answer, as I understand it, was not well accepted by some members of the Senate; was expressed as one of the reasons for their opposition to him. So it's more than just a mundane question, although it's a simple question. 

By accepting the president's nomination, you've obviously expressed a willingness to serve on the United States Supreme Court. My question is, why would you want to serve on the United States Supreme Court? 

ALITO: I think it's an opportunity for me to serve the country using whatever talent I have. I think that the courts have a very important role to play, but it's a limited role. So it's important for them to do a good job of doing what they're supposed to do, but also not to try to do somebody else's job. 

And I think that this is a way in which I can make a contribution to the country and to society. I've tried to do that on the court of appeals, and I would continue to do that if I'm confirmed for the Supreme Court. 

KYL: Thank you. 

Now, let me now ask you a question that I also asked now-Chief Justice John Roberts. And it's obvious from my question that I do not support the use of foreign law as authority in United States court opinions. 

I mentioned to him the 2005 case of Roper v. Simmons, in which the Supreme Court spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Nigeria and China. And I reminded the committee of Justice Breyer's 1999 dissent from denial of cert in Knight v. Florida, in which he relied on the legal opinions of Zimbabwe, India, Jamaica and Canada in arguing that a delay caused by a convicted murderer's repeated appeals -- appeals brought by the convict -- should be considered cruel and unusual punishment. 

KYL: I expressed my view that reliance on foreign law is contrary to our constitutional traditions, it undermines democratic self-government and it's utterly impractical, given the diversity of legal viewpoints worldwide. And would add that it's needlessly disrespectful of the American people as seen through the widespread public criticism of the trend. 

Now, with my cards on the table, I turn to you. What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions? And when, if ever, is citation to or reliance on these foreign laws appropriate? 

ALITO: I don't think that foreign law is helpful in interpreting the Constitution. 

Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights. 

The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government. 

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents. 

Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human -- in fact, I don't think there were any that protected human rights the way our Bill of Rights did. 

ALITO: We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution. 

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

In private litigation, it's often the case -- I've had cases like this -- in which the rule of decision is based on foreign law. There may be a contract between parties and the parties will say, "This contract is to be governed by the laws of New Zealand or wherever." Of course, there, you have to look to the law of New Zealand or whatever the country is. 

So there are situations in litigation that come up in federal court when it is legitimate to look to foreign law, but I don't think it's helpful in interpreting our Constitution. 

KYL: Thank you. 

Now, let me close with this question. 

In the Judiciary Committee's questionnaire to you, you were asked about your views of judicial activism. And as part of your answer, you said something intriguing to me. You said, "Some of the finest chapters in the history of the federal courts have been written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations." 

How does one determine that a constitutional violation is deeply rooted? And can you elaborate on what you meant by that and when federal courts should be especially aggressive in their use of equitable powers? 

ALITO: What I was referring to were the efforts of lower federal court judges in the South during the days after the decision in Brown v. Board of Education to try to implement that historic decision despite enormous public resistance at times. 

ALITO: But this was an example of the federal judiciary not swaying in the wind of public opinion. There was a lot of opposition. And I'm sure that it didn't make them popular. 

I've read a number of books concerning the situation in which they found themselves. But, on the whole, they did what a federal judge is supposed to do, which is that they enforced the decision of the Supreme Court of the United States that, after a long delay, vindicated what the equal protection clause of the 14th Amendment was supposed to mean, which was to guarantee equal rights to people of all races. 

KYL: Are there other examples that come to your mind of that same application of power? It seems counterintuitive, but when you think about it, it's absolutely essential for the courts sometimes to buck public opinion and enforce what may be considered unpopular laws. 

ALITO: Well, there were some examples cited earlier today when the courts said that the executive had overstepped the bounds of its authority. The Youngstown Steel case was cited. And that is certainly an example where President Truman thought that it was necessary to seize the steel mills so as not to interfere with the war effort in Korea, but the Supreme Court said that this was an overstepping of the bounds of executive authority. 

There was a reference to United States v. Nixon, where the Supreme Court said that the president of the United States had to comply with a subpoena, with a grand jury subpoena, for documents. And they stood up for what they understood the law to mean, despite the fact that there must have been great pressure against them in another direction. 

ALITO: So when situations like that come up, it is the responsibility of the judiciary to hold fast. 

KYL: Mr. Chairman, since there are just about 30 seconds left here, rather than ask another question, let me just close with quoting three sentences from the letter sent by the American Bar Association to you dated January 9th. I thought that was especially interesting in view of the subjects that they dealt with, the integrity of the nominee, as well as his abilities and character. 

They said, "Fifty years ago, a Supreme Court justice wrote of the traits of character necessary to serve well on the Supreme Court. He referred to the ability to put one's passion behind one's judgment instead of in front of it and to demonstrate what he called dominating humility. It is the belief of the Standing Committee Judge Samuel Alito possesses those same qualities." 

I think that's quite a testament to your character and your integrity, and I'm sure you appreciate the Bar Association reaching that conclusion. 
Thank you very much, Senator. 


SPECTER: We will now recess until 2:15, at which time Senator Kyl will be recognized for 20 minutes, which is the balance of his 30- minute first round. 
Recess until 2:15. 

Continue to Part II of the transcript.

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

Courtesy FDCH e-Media
Tuesday, January 10, 2006; 4:20 PM

The transcript picks up after the lunch recess. Click here to return to Part I of the transcript.

SPECTER; The Judiciary Committee hearings will resume. 
We'll turn now to Senator Kyl, who has 20 more minutes on his first round of 30 minutes. 

Senator Kyl? 

KYL: Thank you, Mr. Chairman. 

First, let me ask unanimous consent to put three items in the record. One of these items related to -- actually, two of them relate to the matter of the CAP that we've heard something about. 

I'd like to enter into the record two letters by Democratic attorneys that make clear that Judge Alito has been extremely helpful in advancing the interests of women and minorities. 

One letter notes that as U.S. attorney he put women and minorities in supervisory positions. The other is from a president- elect of the National Bar Association for Women. 

And also a Washington Post article from January 9th in which a criminal defense attorney and Democrat Alberto Rivas, who served in the U.S. Attorneys Office when Judge Alito was in charge, said -- speaking of the judge -- "While he opposed numeric hiring quotas, he took steps to diversity an office that had the reputation as something of a white boys club." 

Mr. Chairman, I hope that this will help address what I think is almost getting to be a... 

(CROSSTALK) 

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

KYL: Thank you. 

Secondly, there has been some discussion of this Knight-Ridder article that has, to my understanding, been rather completely discredited. 

And I ask unanimous consent that the detached document analyzing that article be added to the record. 

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

KYL: And before the break, Senator Biden suggested that -- at least I understood him to suggest that there was no reason to belong to this organization CAP in 1985 because ROTC was safely on campus at that time. 

Judge, let me ask you a question. Do you know what year you joined the CAP? 

ALITO: I don't know, Senator. I've tried to wrack my memory about that. 

But as I said, if I'd been active in my membership, I think I certainly would remember that. 

ALITO: And if I had renewed the membership, I think I would remember that. 

So my best reconstruction of this is it was probably sometime around the time when I wrote that statement. 

KYL: Long after you were gone from the school? 

ALITO: That's correct. 

KYL: In that event, Mr. Chairman, I ask unanimous consent to include an article from a campus newspaper, The Princeton Packet, dated February 12, 1985, which expressly explains that ROTC was a core motivation behind the CAP in 1985. 

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

KYL: Thank you, Mr. Chairman. 

I noted with interest a comment that Senator Durbin made in his opening statement because it referred to a good friend and former colleague of ours, Senator Simon, who put forth a pretty good test about courts. 

He said that the real test is, is the court restricting freedom or expanding it? 

And I thought about that because it seems to me that so many of these cases about expanding freedom or restricting it are cases that boiled down to the eye of the beholder. 

And I specifically thought about the 9th Circuit case -- because my status from the 9th Circuit -- outlawing "under God" in the Pledge of Allegiance, saying that that's unconstitutional. 

And I checked: According to one survey that I had access to, 93 percent of the American people support the right to say "under God" in the Pledge of Allegiance. 

And I know that the plaintiff in the case, Michael Newdow, thought that he was advancing his freedom or his daughter's freedom in successfully getting the court to strike it down, but it seems to me that the majority of the people are having their freedom restricted in such a case. 

And it seems to me -- and I certainly will not ask you because that case could well come before the court again; I wouldn't ask you how you would rule on it. 

But as a general proposition, this matter of restricting freedom, is it not the case that in many situations you've got two competing types of freedom liberty involved and it's a question of interpreting the Constitution rather than specifically setting out to advance one sort of freedom as opposed to another? 

ALITO: I think that's exactly right, Senator. Often, there are conflicting freedoms and that makes the case difficult. 

KYL: Let me ask you, too, there was a concern expressed by Senator Biden that the big factor in your nomination, in his view, was the fact that you would be replacing Justice Sandra O'Connor, and that that might mean that you would change the direction of the court. That's the concern expressed, anyway. 

KYL: Now as has been famously said, I know Justice O'Connor. I've been a friend of hers for at least 30 years and I don't think she is any kind of a liberal member of the court. She might properly be called moderately conservative. I'm not sure how she would characterize herself. 

But I noted that of the 109 justices to sit on the Supreme Court, nearly half -- 46 to be exact -- have replaced judges appointed by another political party. 

So it is not at all uncommon -- indeed, it is almost half the situations in which a different party nominates the justice replacing a sitting judge or justice. And one might expect, therefore, some difference. 

But I checked the record, because this had been brought up by Senator Brownback yesterday, and I found -- in the nomination of Justice Ginsburg and the confirmation hearings there -- she replaced Justice White, who I think rightly has been called a centrist on the court; certainly not a liberal. 

And yet I saw not one expression of concern by any senator, Democrat or Republican, that Justice Ginsburg might be ruling quite a bit differently than Justice White in decisions in the court. 

So it seems to me that that is not a test that is rightly applied. That's their results-oriented test, exactly the same kind of thing that you have said that judges shouldn't do when they approach cases. 

Let me get to a point that Senator Kennedy made. 

KYL: He said that you'd been overly deferential to executive power and criticized what he called -- and I think I have this quotation exactly -- your "almost total disregard of the impact of these powers on the rights of individuals." 

I'd like to know what your response is to that charge and whether you can cite some specific cases that would refute what he said. 

ALITO: Certainly, Senator. 

I've tried to decide every case on its own merits. And sometimes that means siding with the government and sometimes it means siding with the party who's claiming a violation of rights. And I do it on an individual basis. 

Cases that show that I do that are cases like United States v. Kithcart, which was the case in which an African-American man had been stopped by police officers because there had been a description of some robbery suspects and the perpetrator was described as a black man in a black car, and Mr. Kithcart was a black man in a black car. And they thought that was sufficient to stop the car. 

I wrote an opinion saying that was insufficient and that was basically racial profiling and was not permitted. 

Another example was Bolden v. Southeastern Pennsylvania Transportation Authority, which had to do with a drug test. And I found that the tests there constituted a search and a seizure and would be a violation absent consent on the part of the party who was searched. 

ALITO: There have been a number of criminal cases in which I have sided with the person claiming a violation of rights. 

Carpenter v. Vaughn was a case in which I wrote an opinion reversing a death -- I joined an opinion reversing a death penalty. The Braunstein case was another case that came up fairly recently in which I joined an opinion reversing a death penalty. 

There have been quite a few cases of this nature, Senator. 

KYL: I noted a tax case, too, or a case involving tax evasion, Leveto v. Lapina. Do you remember that 2001 case? 

ALITO: I do. 

That was the case in which there was a search of I believe it was the office of a veterinarian. And in a way, that is a similar case to the Mellot (ph) case that I was discussing earlier. Although, in Mellot (ph) I thought that the search was carried out properly. 

In the Leveto case, on the facts of that case, I thought the search was not carried out properly; that the officers violated the Fourth Amendment in the way they went about carrying out that search. They forced the occupants of these premises to remain on the premises for a very extended period of time while the search was being conducted and violated their Fourth Amendment rights. And that's what I said in the opinion. 

KYL: Do you have an idea of how many cases that you've -- that have gone to decision that you have participated in on your 15 years as a Circuit Court judge? 

ALITO: I think it's well over 4,000 on the merits. 

KYL: And, I mean, I suspect that in those -- of those 4,000 cases, there might be one or two that I disagree with your decisions on, maybe even more than that. 

KYL: But the point here is there are numerous cases in which you have found that the government acted improperly in criminal law context, in warrant context, in discrimination context, in other cases in which you have found either that the government acted properly or that, at a minimum, government officials were entitled to some immunity with respect to being privately sued. Is that correct? 

ALITO: That's correct, Senator. 

KYL: Let me also address this question of discrimination, especially racial discrimination. This is a matter that was discussed in some prior questioning, and specifically in Senator Biden's questions. It dealt with the Sheridan case in which you were the sole dissenter. 

In the subsequent United States Supreme Court case, the Reeves decision, my understanding from your answer is that the Supreme Court addressed the same issue of law that you and your colleagues had disagreed about and that the U.S. Supreme Court voted unanimously in an opinion written by Justice O'Connor that the test that you used in the Sheridan case was the correct test to use. Is that correct? 

ALITO: Yes, correct, Senator. That is correct. 

KYL: Now, there are some other cases involving employees claiming racial discrimination that I've looked at. And one of the senators seemed to suggest, in a comment that he made, that you had never written opinions or decided cases for a black plaintiff. Is that a fair statement? 

ALITO: No, it's not accurate. 

KYL: Do you recall cases in which you upheld the discriminatory claims of racial minorities? 

ALITO: Well, there was a case of Goosby v. Johnson & Johnson and that case can be considered together with the Bray case that I was discussing before the break. 

ALITO: Those were both cases in which my colleague, Judge McKee, wrote the opinion, and in the Goosby case I agreed with him. It was a similar case. But it was a case where I thought the facts fell on the other side of the line. 

There was a case called Smith v. Davis, which was another case where I joined an opinion upholding the claim of an African American who was claiming racial discrimination. 

The Robinson case involved claims of race and gender discrimination, as I recall. There are a number of cases in the criminal law context. I just mentioned the Kithcart case. There was Brenson case. There was Williams v. Price. 

There have been many cases involving other forms of discrimination, age discrimination -- the Showalter case. Disability discrimination -- the Manzalusci (ph) case. The case of Shapiro v. Lakewood Township. There was Zubi v. AT&T, which was a case involving the statute of limitations for a claim of racial discrimination. 

KYL: And you were the lone dissenter in that case, is that correct? 

ALITO: I was the dissenter in that case... 

KYL: And your position was what? 

ALITO: My position was that -- the majority's position was that the claim had to be thrown out because of the statute of limitations had been violated. And my position was that the claim should be allowed to go forward because the statute of limitations was longer than the majority had recognized. 

And that issue later went to the Supreme Court in a case called Jones v. Donnelly. And the Supreme Court agreed with my position that the longer statute of limitations applied. 

KYL: I note there was another case involving an African American woman who claimed that their coworkers had made racial and sexual slurs against her, denied her training opportunities, and so on. And you ruled that she was entitled to $124,000 in damages and attorneys' fees -- a case called Reynolds v. USX Corporation. Do you remember that case? 

ALITO: That's right, Senator. 

KYL: So the bottom line is there are numerous cases in which you have ruled in favor of minorities -- in particular, African Americans -- in discrimination situations, and also where you've dissented in a situation in which your position was to support the claim of discrimination; and that it would be inaccurate to say that you have not taken that position in the 4,000 plus cases that you have decided. 

Is that correct? 

ALITO: That's certainly correct, Senator. 

KYL: Now there's been a lot of talk about precedent and stare decisis. It's certainly something that we lawyers are familiar with. We regard it as key principle in deciding cases. 

KYL: There was a case that was mentioned by a couple of my Democratic colleagues that I'm sure will be discussed further. 

But I thought I'd give you an opportunity to talk about it because it certainly seemed to me to be a case in which you were trying to apply Supreme Court precedent, the precedent being the Lopez v. United States case; a case, by the way, in which I note that it was one of those decisions that Justice O'Connor was in the majority, a 5- 4 decision in which her position could be characterized as the swing vote. 

Now, you, in United States v. Rybar, agreed with Justice O'Connor in the way that law should be applied relative to intrastate possession of a weapon. 

The Lopez case dealt with a congressional act that said that weapons should not be possessed near schools. The court struck that down, saying that that went beyond the commerce clause capability of commerce to legislate in matters of interstate commerce. 

In Rybar, what was the issue, you dissented. 

By the way, one of the reasons why this case is interesting to me because the 9th Circuit Court of Appeals, again, which is my circuit, has subsequently ruled -- and this is not a conservative court in most people's estimation -- recently agreed with your dissent in a case called U.S. v. Stewart (ph), a 2003 case in which the court overturned the defendant's conviction under the very same statute, holding that the law exceeded Congress's commerce powers. 

So it seems to me that it would be hard to argue that your position is, per se, unreasonable. But could you describe in your own words? 

ALITO: Well, my position in Rybar was really a very modest position. And it did not go to the question of whether Congress can regulate the possession of machine guns. 

In fact, I explained in the opinion that it would be easy for Congress to do that in a couple of ways that differed from the way in which it was done in Rybar. 

The statute in Rybar was very similar to the statute that was at issue in Lopez. In fact, I think they are the only two federal firearms statutes that have been cast in that mold. 

They simply prohibited the possession of firearms without either congressional findings concerning the effect of the activity on interstate commerce or a jurisdictional element. 

And I knew from my experience as a federal prosecutor that most of the federal firearms statutes have a jurisdictional element right in the statute. And what that means is that when the prosecutor presents the case in court, the statute that's used most frequently is the statute that makes it a crime for someone who has been convicted of a felony to possess a firearm. 

In that case, when the prosecutor presents the case in court, the prosecutor has to show that the defendant has been convicted of a felony and that the firearm in question had some connection with interstate commerce. 

Under Supreme Court precedent, a case called Scarborough, all that's necessary is to show that the firearm at some point in its history passed an interstate or foreign commerce: it was manufactured in one state and then later turned up in another state or manufactured in a foreign country and brought to the United States. 

From my experience, this was never a practical problem and this was how all the federal firearms statutes had been framed. 

ALITO: But for whatever reason, the statute in Lopez and the statute in Rybar were lacking that jurisdictional element. 

So an easy way in which Congress could regulate the possession of a machine gun would be to insert a jurisdictional element. And as I just pointed out, in my experience as the U.S. attorney in New Jersey, that was never a practical problem. 

The Supreme Court in Lopez said that there were three reasons why there was a problem with the statute there. 

And that case had been decided the year before. And it was my obligation, as a lower court judge, to follow it. 

The first was that it involved what the court characterized as a noncommercial activity, and that was the possession of a firearm. And, of course, that was the exactly the same activity that was at issue in Rybar. 

The second was the absence of a jurisdictional element, and there was no jurisdictional element in either statute. 

And the third was the absence of a congressional finding connecting the activity that was being regulated within interstate commerce. 

And I pointed out in my opinion that I would have viewed the Rybar case very differently if there had been a congressional finding or if the Justice Department, in presenting its argument to us, had been able to point to anything that showed that there was a substantial effect on interstate commerce, which is what the Supreme Court says is required. 

KYL: So this is one of those situations in which, if the result was not was intended, you were willing to point out in your decision what Congress could relatively easily have done to get the result that it appeared that Congress wanted to achieve? 

ALITO: That's exactly correct. 

KYL: Thank you. 

Thank you, Mr. Chairman. 

SPECTER: Thank you very much, Senator Kyl. 

Senator Kohl? 

KOHL: Thank you very much, Mr. Chairman. 

Judge Alito, we heard a lot of discussion yesterday about the proper role of the judge in our system. 

KOHL: Some said that a judge should favor neither the, quote, "big guy or the little guy, but simply apply the law and not make the law." 

Based on what you said yesterday, I believe that you would agree generally with this characterization. 

However, to me, it's not quite so simple. Just as no two umpires call the same game exactly, no two judges see a case in exactly the same way. Laws and the Constitution are often ambiguous and capable of many interpretations. Those interpretations are the result of judges with different judicial philosophies. Some judges have a more liberal judicial philosophy, while others are more conservative. 

And we're here trying to figure out what your judicial philosophy is. That's probably the principal point of this hearing. 

If the law were so simple we would not have as many 5-4 decisions. 

It seems to me that many of the most fundamental protections of civil rights and civil liberties that we take for granted today -- things such as school integration, the principle of one person, one vote, the principle that the accused have a right to a lawyer in criminal cases, and the right of contraception, just to name a few -- have come when judges have been willing to look beyond rigid legal doctrines that prevailed at the times of those rulings. 

The neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress, right historic wrongs and protect civil liberties so essential to our democracy. 

So isn't it true, Judge Alito, that a neutral judge would never have reached these conclusions? In fact, for decades, courts did not reach these conclusions. 

So would you agree that these cases were rightly decided, number one; and required, number two, that judges apply a more expansive, imaginative view of the Constitution? 

ALITO: I think that the Constitution contains both some very specific provisions, and there the job of understanding what the provision means and applying it to new factual situations that come up is relatively easy. 

The Constitution sets age limits, for example, for people who want to hold various federal offices and there can't be much debate about what that means or how it applies. 

But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary. 

I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution. 

They have to identify the principle that is to be applied under these broader provisions of the Constitution and apply it, but I don't see that as being the same thing as the judges injecting his or her policy views or preferences or ideas about the direction in which the society should be moving into the decision-making process. 

KOHL: These decisions to which I just referred pushed society into new directions. And they came about -- didn't they? -- as a result of the Supreme Court's willingness to look at the Constitution in perhaps a different and a new way and take a new approach and a new avenue, which is not entirely consistent with a neutral judge simply applying the law. 

KOHL: The law is the law. It's not hard to find that out, as you somewhat suggested, that you're an umpire. A ball is a ball; a strike is a strike. 

I'm suggesting that it's -- and I would like to hope you would agree that it's somewhat if not a lot more complex and sophisticated. If it weren't true, we could have a lot of views here today. 

I think you're unique in many ways. And part of that is your complexity, your sophistication, your ability to look at the Constitution and, if necessary, see new meanings that weren't seen there before. Isn't that true? 

ALITO: Well, Senator, I would never say that it is an easy process. There are some easy cases, but there are lot of very difficult cases. And once you have identified the principle, the job of applying it to particular cases is often not easy at all. 

But what the judge has to do is make sure that the judge is being true to the principal that is expressed in the Constitution and not to the judge's principle, not to some idea that the judge has. 

And sometimes this results in ground-breaking decisions; sometimes that is because new issues come up. Sometimes it is because the principle that is embodied in a constitutional provision has long been neglected. 

That was certainly true with respect to the equal protection clause. There was a long period between Plessy v. Ferguson and Brown v. Board of Education when the true meaning of the equal protection clause was not recognized in the decisions of the Supreme Court. 

ALITO: And when Brown was finally decided, that was not an instance of the court changing the meaning of the equal protection clause; it was an instance of a court writing an incorrect interpretation that had prevailed for a long period of time. 

KOHL: OK. 

Judge Alito, one of the ways you get at a person's judicial philosophy is to look at the people whom they admire. 

In an interview that you gave in 1988, you were asked about your thoughts about Judge Robert Bork's nomination and you said, and I quote, "Judge Bork was one of the most outstanding nominees of this century," unquote. 

Many Americans do not share Judge Bork's narrow views about the Constitution, views that would undermine many of the rights that we now take for granted, Judge Alito. 

Judge Bork thought that Americans had no constitutional right to use contraception, saying, and I quote, "The right to procreate is not guaranteed explicitly or implicitly by the Constitution," unquote. 

Judge Bork thought minorities had no constitutional right to have their votes counted equally, saying that in guaranteeing one man/one vote, the court, quote, "stepped beyond its boundaries as an original matter," unquote. 

In 1981, Judge Bork called Roe v. Wade, quote, "an unconstitutional decision, serious and wholly unjustifiable usurpation of state legislative authority," unquote. 

In addition, he had an unreasonably broad view of executive power, claiming that a law requiring a president to obtain an order from a court before conducting surveillance in the United States and against U.S. for foreign intelligence purposes was, quote, "a thoroughly bad idea and almost certainly unconstitutional." 

Can we assume from your admiration of Judge Bork that you agree with some of these statements, or at least that you support some of these beliefs if you were sitting on the Supreme Court? 

KOHL: Frankly, it's curious to me that someone like yourself would consider someone with his views to be, quote, "one of the most outstanding nominees of this century." 

ALITO: Senator, when I made that statement in 1988 I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration and I had been a supporter of the nomination. I do not think the statement goes beyond that. 

There are issues with respect to which I probably agree with Judge Bork and there are a number of issues with which -- on which I disagree with him. 

Most of the things that you just mentioned are points on which I would disagree with him. I expressed my view about Griswold earlier this morning. 

On the issue of reapportionment, as I sit here today in 2006, and I think that's what is most relevant, I think that the principle of "one person, one vote" is a fundamental part of our constitutional law. I think it would be -- I do not see any reason why it should be reexamined. And I do not know that anybody is asking for that to be done. 

Every legislative district in the country and every congressional district in the country has been reapportioned, has been redistricted numerous times in reliance on the principle of one person, one vote. And the old ways of organizing state legislatures have long been forgotten. 

So I think that is very well settled now in the constitutional law of our country. 

Under the Fourth Amendment, I have no question about the decision in the United States v. United States District Court -- and I think that is what you were referring to -- which held that a warrant is required for domestic security surveillance. 

ALITO: And that was the decision that led to the enactment of the Foreign Intelligence Surveillance Act. 

KOHL: Of course. I was only referring to -- or trying to refer to your quote with respect to him and the positions he held, which I suggested were at variance with the positions I thought you held, which you're affirming here in your answer. 

So that the quote you're pointing out was something you made as an employee of the Reagan administration? 

ALITO: I was. I saw that quoted in the paper yesterday. I think that was in 1980... 

KOHL: Not necessarily expressing your own real views? 

ALITO: I was a supporter of the nominee of the administration, and he was the nominee of the administration. He was and is an accomplished scholar. He had contributed a great deal to constitutional debate with his writings. 

But I don't agree with him on a number of issues, and I've mentioned -- you've hit some of the issues on which I would definitely disagree with him. 

KOHL: Very good. 

Judge Alito, in a document appended to your job application you also wrote that, quote, "I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by branches of government responsible to the electorate," unquote. 

The statement is especially troubling given that elsewhere in this application you wrote, quote, "I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren court decisions, particularly in the areas of criminal procedure, establishment clause and reapportionment." 

KOHL: Judge Alito, what Warren court cases were you specifically talking about? Miranda? One person, one vote? Any of the privacy decisions? What in particular were you talking about? 

ALITO: Well, Senator, I'm happy to address that. 

The statement was made in that 1985 form. And, of course, that was written 20 years ago. And in the form, what I was doing was, sort of, outlining the development of my thinking about constitutional law. And I went so far as to go back to my college days, which were before, of course, I had even attended law school, much less practiced law or served as a judge. 

I mentioned some of the leading areas that were covered by decisions of the Warren court. And the decisions of the Warren court really stimulated my interest in constitutional law. 

And I mentioned a book that had been published at the time, Alexander Bickel's book "The Supreme Court and the Idea of Progress," which was probably the first book about what you might call constitutional theory that I had read. 

And he was someone who I think most people would describe as a liberal, but he was a critic of the Warren court for a number of reasons. And he was a great proponent of judicial self-restraint, and that was the main point that I took from my pre-law school study of the Warren court. 

I spoke a bit about the reapportionment decisions. 

ALITO: I don't believe that I -- in fact, I'm quite sure I never was opposed to the one person, one vote concept. 

I do recall quite clearly that my father's work at the time -- working for the New Jersey legislature and working on reapportionment -- had brought to my attention the question of just how far that principle of one person, one vote had to be taken in drawing legislative districts. 

The New Jersey legislature, and many other legislatures at the time, were trying to redraw their districts in accordance with Reynolds v. Simms, which set out the one person, one vote principle, but it wasn't clear how exactly equal the districts had to be in population. 

And in some of the late Warren court decisions, the court seemed to suggest -- did say so for congressional districts -- that they had to be almost exactly equal in population. 

And this idea, if applied to the legislatures and to the New Jersey legislative plan, would have wiped the plan out, because there were population deviations, which although not very large, were much larger than the court had said there were going to tolerate in the case of congressional districts. 

And I do remember that quite specifically. 

Professor Bickel made the argument that the court had taken the one person, one vote principle too far. And I know my father had said that, although he thought it was a good idea, the idea of trying to get the districts to be exactly equal in population at the expense of looking at other factors, such as the shape of the districts and respecting county lines or municipal lines, was a bad idea. 

KOHL: Judge Alito, you stated in that same job application that one element of the conservative philosophy that you believed, quote, "very strongly," was the, quote, "legitimacy of a government role in protecting traditional values," unquote. 

KOHL: What traditional values were you referring to? And who decides what is a, quote, "traditional value"? 

ALITO: Well, again, I'm trying to remember what I thought about that 20 years ago, and I'm trying to reconstruct it. 

I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates. I think that's a traditional value. 

I think the ability of people to raise a family and raise their children in accordance with their own beliefs is a traditional value. 

I think the ability to raise children in a way that they're not only subjected to -- they're spared physical threats, but also psychological threats that can come from elements in the atmosphere, is a traditional value. 

I think that the ability to practice your own conscience is a traditional value. 

That's the best I can reconstruct it now, thinking back to 1985. 

KOHL: Very good. 

Judge Alito, in Casey you argued that the requirement that a woman notify her husband did not impose an undue burden upon a woman. You reasoned, in part, that the number of married woman who would seek an abortion without notifying their husbands would be rather small; in other words, only some women who would be affected. 

KOHL: The majority in that case disagreed with you and stated, quote, "Whether the adversely affected group is but a small fraction of the universe, a pregnant woman desiring an abortion seems to us irrelevant to the issue," unquote. 

This disagreement begs the question: Is a constitutional right any less of a right if only one person suffers a violation? Or should greater value be placed on that right if a larger number of people have that right violated? 

ALITO: Trying to apply the undue burden test at that time to the provisions of the Pennsylvania statute that were before the court in Casey was extremely difficult. I can really remember wrestling with the problem. I took it very seriously, and I mentioned that in my opinion. It presented some really difficult issues. 

Part of the problem was that the law just was not very clear at that time. The undue burden standard had been articulated by Justice O'Connor in several of her own opinions, and there were just a few hints in those opinions about what she meant by it. 

What she said was that an undue burden consisted of an absolute obstacle or an extreme burden. Those may not be exact quotes, but they are pretty close. She did say that it was insufficient to show simply that a regulation of abortion would inhibit some women from going forward and having an abortion. That was the information that was available in her opinions to try to understand what this test meant. 

Then the question became: How do you apply that to the numerous provisions of the Pennsylvania statute that were before us? It was a difficult task. 

The plaintiffs argued that all of the provisions constituted an undue burden. When the case went to the Supreme Court, Justice Stevens agreed with that. 

ALITO: He said they all were an undue burden, things like a 24- hour Waiting time. That was an undue burden because it would inhibit some women from having an abortion. 

An informed consent provision -- Justice Stevens thought and the plaintiffs argued that would be an undue burden. 

The majority on my panel and the joint opinion on the Supreme Court found that most of the provisions of the statute did not amount to an undue burden -- the 24-hour waiting period, the informed consent provision, and all of them. 

We disagreed on only one and that was the provision regarding spousal notification, with a safety valve provision there that no sort of notification was needed if the woman thought that providing the notification would present a threat of physical injury to her. 

And it was -- I wrestled with that issue, but based on the information that I had from Justice O'Connor's opinions, it seemed to me that this was not what she had in mind. Now, that turned out not to be a correct prediction about how she herself would apply the undue burden standard to that statutory provision, but that was the best I could do under the circumstances. 

KOHL: Judge Alito, in your 1985 job application memo, again, you identified reapportionment as one of the three issues decided by the Warren court with which you disagreed. You even stated that you disagreed with it so strong that it was one of the reasons that you became a lawyer. 

The Supreme Court's Warren court decisions on this topic, of course, stood for the fundamental principle of one person, one vote; meaning as a matter of constitutional law that each person's vote must count equally and each electoral district must have the same population. 

KOHL: These decisions were more than 20 years old by the time of your 1985 job application. And these decisions stand for a fundamental principle of democracy. 

By 1985, virtually no serious scholar or constitutional lawyer could be found to disagree with the principle that each person's vote should count equally. 

So what was your disagreement with the Warren court's decisions on this issue, Judge Alito, in 1985? Isn't one person, one vote a basic principle of democracy? Wasn't it in 1985? 

ALITO: Senator, I don't believe that I disagreed with the principle of one person, one vote in 1985. I was talking about how I got interested in constitutional law back in college, and I was certainly stimulated at that time by my consideration of the issue of one person, one vote. 

But the issue that troubled me toward the end of the Warren court -- and this was during the time when I was in college -- was the question of how far this principle when it came to drawing legislative districts. 

Did they have to be almost exactly equal in population in accordance with the last census? Or were larger population variations permitted? 

In a case called Kirkpatrick v. Priesler and another one called Wells v. Rockefeller that were decided around 1969, which was right at the end of Chief Justice Warren's tenure on the Supreme Court, the court held that in the case of congressional districts, they had to be almost exactly equal in population. 

And as I said, my father was deeply involved in this. When the issue came up again in the context of congressional districting in Karcher v. Daggett, which was around 1985 -- that was the case where he had been an expert witness. 

ALITO: And the court struck down the New Jersey congressional districting plan, even though the population variations were under 1 percent. 

Now, the court also later said that when you're talking about legislative districts, considerably larger deviations are allowed and you can take into account municipal lines and county lines and things of that nature. 

But as of the time when I was in college, as of the time of the two cases that I mentioned, it seemed likely -- a lot of people thought, and certainly I as a college student thought, that the rule was going to be the same for congressional districts as it was for legislative districts. And that seemed to say that the districts would have to be almost exactly equal in population based on the last census. 

A problem with that is that while its census is very accurate, it is not perfect, and it does not stay accurate throughout the 10-year period from census to census. People move around, the population grows, population diminishes in certain areas. 

It did not seem to make a whole lot of sense, let's say, in the middle of a decade to insist on an absolute population equality based on the last previous census, when everybody knew that the census figures have changed. In doing that, insisting on practically equal population districts, districts of almost exactly equal population. You disregard municipal lines, you disregard county lines. People don't know which district they're going to be voting in. You introduce the possibility of other factors figuring into the districting plan. 

KOHL: Family and Medical Leave Act, Judge Alito: In my view, one of the most important pieces of social legislation enacted in the last two decades was the Family and Medical Leave Act in 1993. 

KOHL: Among other things, it gives employees the right to take up to 12 weeks of unpaid leave to care for a newborn child or an ill parent or a spouse. 

The statute also gives an employee the right to sue his or her employer for damages if the employer violates the employee's rights under this law. 

I was disturbed to learn that in the Chittister case, Judge Alito, your ruling denied a state employee the ability to sue his employer for money damages. Your reasoning was directly repudiated by the 2003 Supreme Court decisions of Nevada Department of Human Resources v. Hibbs. 

In that case, the Supreme Court, in a decision written by Chief Justice Rehnquist, held that the Family and Medical Leave Act was congruent and proportional to Congress's interest in preventing discrimination based on gender and therefore states could be sued for money damages under the law. 

So we're concerned that your view shows a lack of understanding of the problems of ordinary working Americans and the right of women to be free of discrimination in the workplace. 

Isn't it true that under your view potentially millions of working Americans would not get the protections that they rely on under the Family and Medical Leave Act, Judge Alito? 

ALITO: Well, Senator, I'm happy to address that, because I think there has been some confusion about what the issue was in Chittister and how it relates to the Supreme Court's decision in Nevada v. Hibbs. 

There are actually two zero entirely different provisions of the Family and Medical Leave Act. The provision that was at issue in my case was not the one in Hibbs. And, at last count, seven circuits had decided that issue, the issue that was before my court in Chittister, exactly the same way we did. 

ALITO: I counted up the number of court of appeals judges who endorsed that position and it's over 20; I think it's 22. And they include some of the most distinguished court of appeals judges in the country and judges who have been appointed by presidents of both parties. 

The issue in Hibbs had to do with a provision of the Family and Medical Leave Act that requires employers to provide employees with a certain amount of leave for the purpose of taking care of another family member. And that was the one that the Supreme Court addressed in the Hibbs case. 

The provision in the Chittister case is a provision that requires employers to give employees a certain amount of leave for personal illness. 

The standard that has to be applied here is the one the Supreme Court has set out, and it's a controversial standard, but as a lower court judge is the one I had to apply. And that was whether what was done was congruent and proportional to constitutional violations. 

What the court said in Hibbs was that there was a record of constitutional violations. And remember, here we're talking about the provision that has to do with leave to take care of another person. 

And what they said was that there were many instances in which employers, state employers, had plans that provided more leave for that purpose for women than for men. And the reason was because of the stereotype, that if somebody in the family got sick, it would be the woman, not a man, who would have to take off from work to take care of that person. 

But the provision that was at issue in Chittister had to with leave for one's own personal illness. And a man was objecting to this. And there was no record that state employers, or for that matter any other employers, had plans that provided more sick leave for men than for women or that any stereotypes were involved in the situation. 

So that was why I concluded and the unanimous panel that I sat on concluded and all of these seven other circuits concluded that that provision did not satisfy the standard that the Supreme Court had established. 

KOHL: Last question. 

Judge Alito, I understand that you're reluctant to comment on cases that you would likely have coming before you in the future, but I'd like to ask you about a case that the Supreme Court certainly will never see again: 2000 presidential election contest between President Bush, Vice President Gore. 

KOHL: Many commentators see the Bush v. Gore decision as an example of judicial activism, an example of the judiciary improperly injecting itself into a political dispute. 

Indeed it appears to many of us who've looked at your record that Bush v. Gore seems contrary to so many of the principles that you stand for, that the president has said you stand for when making your nomination: talking about judicial restraint, not legislating from the bench and, of course, respecting the rights of the states. 

So, Judge Alito, I'd like to ask you: Was the Supreme Court correct to take this case in the first place? 

ALITO: Well, Senator, I think you're probably right, and I hope you're right, that, that sort of issue doesn't come before the Supreme Court again. 

Some of the equal protection ground that the majority relied on in Bush v. Gore does involve principles that could come up in future elections and in future cases. 

As to that particular case, my answer has to be, I really don't know. I have not studied it in the way I would study a case that comes before me as a judge. And I would have to go through the whole judicial process. 

KOHL: That was a huge, huge case. 

And I would like to hope and I would bet that you thought about it an awful lot, because you are who you are. And I would like for you to give an opinion from the convictions of your heart. 

KOHL: As a person who's very restrained with respect to judicial activism, this being a case of extreme judicial activism, were they correct in taking this case, in your opinion? 

ALITO: Well, there's the issue of whether they should take it and the issue of how it should be decided. 

And, Senator, my honest answer is I have not studied it in the way that I would study the issue if it were to come before me as a judge. 

And that would require putting out of my mind any personal thoughts that I had on the matter and listening to all of the arguments and reading the briefs and thinking about it in the way that I do when I decide legal issues that are before me as a judge. 

And that's the best answer I can give you to that question. 

It was obviously a very important and difficult and controversial case. And in a situation like that, the obligation of a judge all the more is to be restrained and is to go through the judicial decision- making process and only at the end of that reach a conclusion about the issue. 

KOHL: Thank you, Judge. 

Thank you, Mr. Chairman. 

SPECTER: Thank you, Senator Kohl. 

Senator DeWine? 

DEWINE: Thank you, Mr. Chairman. 

Judge, you've almost turned the corner here. So that's the good news. The bad news is this is just the first round. 

So let me respond if I could, Judge, to three things that I've heard so far during these hearings that have, frankly, disturbed me. 

First, I'm bothered by what I consider to be distortions of your record, really in an effort to make you look like something that you're not. 

I just read a very interesting article by Stuart Taylor from the National Journal about this issue. 

And I would like, Mr. Chairman, to make this a part of the record -- this article -- if I could. 

SPECTER: Without objection. 

DEWINE: Mr. Taylor describes the opinions of a, quote, "right- wing jurist. This judge has consistently ruled against minorities, striking down affirmative action programs, making it harder for victims of race and gender discrimination to vindicate their rights." 

SPECTER: Senator DeWine, your unanimous consent request is granted. 

DEWINE: Thank you, sir. 

"This judge has struck down a federal law to protect kids from guns; ruled that state and local governments cannot be sued under the Fair Labor Standards Act, leaving 4.7 million workers without a remedy in court. 

"This judge has immunized the president from suit, even when he illegally wiretaps political opponents. 

"This judge approved a police officer's fatal shooting in the back of an unarmed 15-year-old African-American boy. 

"Finally, this judge has called abortion, and I quote, 'morally repugnant' and declared Roe v. Wade to be, quote, 'on a collision course with itself.' 

"Based on such a record, no right-thinking Democrat could ever support such a judge." 

But as Taylor tells us, this judge is none other than Sandra Day O'Connor, the same Sandra Day O'Connor who has been praised for the past few days as a model of moderation. 

Judge, the point Mr. Taylor made is clear: You can distort and misrepresent anyone's record. 

And that, I believe, unfortunately, is what some of your opponents are doing to you. It's unfair, it's inaccurate. And it's just flat-out wrong. 

Second, I would like to respond to the allegation that you have not written an opinion in favor of a plaintiff alleging race discrimination on the job. You did a very good job a moment ago, when Senator Kyl was talking to you, in describing some of the cases. 

I think the facts of these cases are what is particularly interesting. 

In Reynolds versus USX Corporation, you ruled that an African- American woman whose coworkers and supervisors regularly made racial and sexual slurs against her and denied her training opportunities was, in fact, entitled to $124,000 in damages and in attorney fees. 

In Zubi v. AT&T Corporation, you dissented -- you dissented -- arguing against a stringent limitations period which prevented a civil rights plaintiff from filing a claim. And your position was vindicated -- you were vindicated by the United States Supreme Court unanimously a few years later. 

In Smith v. Davis, you disagreed with the district court, which had dismissed an African-American employee's claim of discrimination. Instead, you found that there was evidence to support a finding that the employer's stated reasons for firing the plaintiff were not genuine. 

In Goosby v. Johnson & Johnson, you ruled that the plaintiff, an African-American woman, was entitled to a trial under claims of employment discrimination, because you found that there was evidence that the employer was treating white male employees differently than it was treating the plaintiff. 

DEWINE: There are more cases, as you've testified to. But I think we make the point. 

We would all be better off, and this process, Mr. Chairman, would be better off and would be more instructive if we could evaluate your nomination, Judge, based on your full and complete record. 

And, finally, let me add my two cents on this Vanguard issue. I'm going take it from a little different perspective than has been done so far. 

To me, this is really a non-issue. In the so-called Vanguard lawsuit, two people were in a financial dispute. The plaintiff sued to force the defendant to turn over $170,000 held by him in some Vanguard accounts. The defendant went to court to prevent Vanguard from turning over the money. 

Now, while Vanguard was technically part of the suit, and was technically a defendant, it wasn't really a defendant in any sense of the term that would be used by the public or understood by the public. It was not accused of any wrongdoing. It didn't stand to lose anything. 

Really, the only question was whether Vanguard would transfer some of the funds it held for one person over to another. It was simply being asked: Who do I pay the money to? Who do I give the money to? That's all Vanguard was being asked to do. So nothing in the classic sense of being a defendant. Nothing about this case could realistically have affected Vanguard as a company, let alone -- let alone affected your mutual funds. It's a joke. It's ridiculous. It's absurd. And everybody on this panel knows that. 

Now, for the sake of the process, I hope we can put these issues behind us. 

DEWINE: This hearing is really our opportunity to fully and fairly evaluate your qualifications for the high court and to get some idea about how you think as a judge, how you process things, what kind of a judge you will be on the United States Supreme Court. 

Now let me turn to the substance. Judge Alito, I want to turn to an issue that is very important to me. In a number of recent cases, the Supreme Court of this country has restricted congressional power in a way that I think is not required by the Constitution. 

In my opening statement I mentioned the Supreme Court's decision in the Board of Trustees v. Garrett, a 5-4 decision. To me, that case is a best example of this recent trend. And it's not a good trend in my opinion. 

Garrett involved a woman who claimed that she had been discriminated against because she was disabled. She was employed by the state of Alabama and she sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, however, holding that Congress lacked the power to make the state subject to suit. 

Judge, as I see it, the problem with Garrett is that the court ignored findings made by Congress. While we were considering the ADA, we held 13 hearings and even set up a task force that held hearings in every state of the union, attended by more than 30,000 individuals. 

Based on these hearings, we found hundreds of examples -- hundreds of examples -- of people with disabilities being discriminated against by the states and in employment decisions. 

Further, we found that, and I quote, two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all -- even though a large majority of them were capable of doing so. 

And finally -- we found that this discrimination flowed from, and I quote, "stereotypic assumptions about people with disabilities as well as" -- and I quote -- "purposeful unequal treatment," end of quote. 

Sadly, however, in Garrett, the court said that this was just not enough. In fact, it held that we had not pointed to any evidence that the states discriminated in employment decisions against people with disabilities. 

Judge Alito, from a review of your decisions, it appears to me that you tended to defer in close cases to the decisions of those individuals closest to the problem at hand. 

DEWINE: I applaud you for taking that approach. 

Now, let me ask: In your opinion, what role should a judge play when reviewing congressional fact-finding? And how can you ensure us -- how can you assure us -- that you will show appropriate deference to the role of Congress as the representative of the people in this democracy when we pass important legislation? 

ALITO: I think that the judiciary should have great respect for findings of fact that are made by Congress. And in the Rybar decision that I was discussing earlier, although it is controversial and it involved an application of the Lopez decision, I state that that decision would have been very different -- that case would have been very different for me if Congress had made findings. 

And that's because of two things. I am fully aware of the fact that the members of the judiciary are not the officers in the United States who take an oath to support and defend the Constitution of the United States. The members of Congress take an oath to support the Constitution and officers of the executive branch take an oath to support the Constitution. And I presume that they go about their work in good faith. 

The second point, and this goes directly to the issue of findings, is that the judiciary is not equipped at all to make findings about what's going on in the real world, not just sort of legislative findings. And Congress, of course, is in the best position to do that. You have constituents. Members of Congress hear from their constituents. Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that and reduce that to findings. 

And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect. 

DEWINE: Well, Judge, I appreciate your response. 

We can't ask you, obviously, to decide any particular case. But what we're trying to do today is get the general idea of how you approach cases. And we've looked at your previous cases. We have a pretty good idea from that. But I appreciate this exchange. 

Let me follow up with this. Garrett is the law of the land today. Nonetheless, let me ask you, whether, after Garrett, Congress might still have a way to protect the disabled. Rather than focus on the problem caused by Garrett, let me focus on the solution. 

To me, even after Garrett, Congress still has the power to protect the disabled under the spending clause of the Constitution. I'd like to explore, maybe, that with you if I could. 

Let me give you an example how this might work. Of course, you're very familiar with South Dakota v. Dole. In that case, Congress had wanted to establish a national drinking age of 21. 

As you know, we, of course, don't have the power to require that under our Constitution. Therefore, Congress used its power under the spending clause. 

We said to the states, "If you don't establish a 21-year-old drinking age, you will lose 5 percent of your federal highway dollars." 

This left the states with a choice: adopt a 21-year-old drinking age or lose 5 percent of their federal money. When presented with such a choice, the states kept the money and changed the drinking age to 21. 

It seems to me that Congress might be able to use this same approach to require the states to waive their immunity from suit under statutes like the ADA. 

Judge, based on your experience, could you give me your understanding of what Congress can do and what it can't do under the spending clause power? Maybe just go back and look at recent cases and give me a little indication. 

ALITO: Yes, certainly, Senator. 

Well, I think you've pointed to the leading case in this area, and that's South Dakota v. Dole. 

And South Dakota v. Dole recognizes that Congress has broad powers under the spending clause. And that when Congress provides money to the states, Congress can attach conditions to the receipt of the money, provided that certain standards are met. 

One thing that has to be done under the Supreme Court's cases is that there has to be a clear statement that the conditions are attached to the receipt of the money. 

The Supreme Court views this like a contract so that the party receiving the notice has to have clear and fair notice about what it's agreeing to by taking the money. 

ALITO: And then beyond that, if that's satisfied, then the condition has to be germane to the purposes of the funds. 

And in South Dakota v. Dole, the court found that the drinking age and the 55 mile-an-hour speed limit were germane to the purpose of the expenditures. And these, I believe, were federal highway funds. 

So those are the standards that would be applied to any future legislation under the current precedents if the future legislation invokes Congress' broad power under the spending clause. 

DEWINE: That's helpful. 

Thank you, Judge. 

During the confirmation hearing of Chief Justice Roberts, Chairman Specter showed us a chart stating that the Supreme Court had the opportunity to overrule Roe v. Wade in 38 cases. Because of this, the chairman suggested that Roe was not only a super-precedent, but super-duper-precedent. 

The chairman has made the same argument at the hearing today. In fact, he brought the chart out again today. 

Now, Judge, just to show you that not all members of this panel are like-minded, I want to tell you that I disagree. To me, Roe is not super-precedent. I believe Roe is precedent, but I don't believe it's super-duper-precedent, nor super-precedent. 

First, although the court has applied Roe in 38 cases, it has not directly taken up the issue of whether to overrule Roe in every one of those cases. 

In fact, out of those 38 cases, I've only found four in which the court directly addressed the status of Roe as binding precedent. 

In Webster, the court asked whether Roe should be reaffirmed but ultimately avoided the issue. 

In three cases, City of Akron, Thornburgh and Casey, the court did reaffirm Roe. 

DEWINE: But the last of these, Casey, did so in a way that hardly left Roe on firm footing. In fact, Casey altered Roe by eliminating the strict scrutiny standard of review and replacing it with a lesser, undue burden tests. The result has been many restrictions on abortion have been upheld. 

Second, just because Roe has been applied and reaffirmed does not make it a special form of precedent. Many other cases have been applied for decades before eventually being overruled. 

For example, Plessy v. Ferguson, the case establishing the principle of separate but equal was upheld for 60 years before it was overruled, and certainly discredited today; Lochner v. New York, a case that greatly limited the power of the states to protect children and workers, was consistently applied for more than 30 years before it was overruled. And Swift v. Tyson, the case establishing the doctrine of federal common law, was a bedrock principle of American law repeatedly applied and upheld for nearly 100 years before it, too, was struck down. 

Thus the mere fact that Roe has been upheld for more than 30 years does not mean that it's entitled to special deference. 

Third, from the start, Roe has been criticized by lawyers, scholars and judges, whether Democrats or Republicans. And to date, it does remain controversial. 

Fourth, much has happened over the last 30 years to undermine the soundness of Roe. 

Senator Brownback has mentioned how the facts of Roe have changed. We now know that the plaintiff in Roe based her case on false statements and that she wants the case overturned. 

We also know much about the life of babies in utero that we did not know 30 years ago. 

We even know something about the internal deliberations of the justices who decided Roe. In an internal Supreme Court memo, Justice Harry Blackmun, the author of Roe, acknowledged that the trimester framework established in his opinion was, and I quote, "arbitrary." 

DEWINE: And Justice Lewis Powell said that he could not find a right to an abortion within the Constitution and decided instead to rely on his gut. 

Finally, whatever the term super-precedent means, I do not think that it describes Roe. In an article by William Landis and Richard Posner, super-precedent was defined this way: "It is a" -- and I quote -- "precedent that is so effective in defining the requirements of the law that it prevents legal decisions arising in the first place or, if they do arise, it induces them to be settled without litigation," end of quote. 

In other words, super-precedent is precedent that is so firmly entrenched in our legal system that people simply don't question it. 

Marbury v. Madison, the case establishing the power of judicial review, is super-precedent. It's so well-settled that litigants do not challenge it in court. In fact, it is one of the fundamental assumptions upon which our constitutional system is built. 

Roe is hardly Marbury. Is Roe Supreme Court precedent? Certainly. But in my view, it is not super-precedent -- is not super- duper-precedent or even super-precedent. It is precedent. Nothing more. 

Judge, I want to turn now to another topic, to an issue that several federal judges in Ohio have brought up to me during our conversations. As you know, the Supreme Court currently decides about 75 cases a term. This number is down dramatically from where it was just a generation ago. 

1976, for example, the court decided almost 400 cases on the merits; more than five times what it does today. 

This incredible shrinking Supreme Court docket has been the focus of much attention over the past few years, a lot of discussion. And one result of the court deciding fewer and fewer cases is that more and more circuit splits are left unresolved, which is what I want to talk about. 

As we all know, a circuit split occurs two or more federal courts of appeals disagree on issue of federal law. As of late, circuit splits have become so pervasive that the Seton Hall Law School came out last year with a new law review dedicated exclusively to that issue. 

DEWINE: There is also a Web site written by a law professor at the University of Richmond solely committed to identifying new circuit splits. Hardly a week passes when at least one does not emerge. 

To me, these pervasive and unaddressed circuit splits create three problems. 

One, organizations that transact business across state lines get caught in the crosshairs of this confusion, being subject to one interpretation of federal law in California and a different one in the state of Ohio. 

Second, federal judges are placed in difficult situations trying to figure out what the law requires. In fact, a number of federal judges in Ohio have talked to me, as I said, about this. 

And finally, circuit splits undermine the goal of having uniformity in our federal law. 

Let me just ask you, what is your opinion about this issue? In your experience, has the Supreme Court's shrinking docket caused problems for businesses, lower court judges, and individuals? Is there a problem with the number of unresolved circuit splits? And if the court takes more cases, do you think that will solve the problem? 

ALITO: Well, that's a difficult issue for me to address from my current position as a judge on the Court of Appeals... 

DEWINE: It's coming, Judge. 

ALITO: ... because the Supreme Court is my boss. And I am reluctant to suggest that I think they should be doubling their workload. 

DEWINE: Oh, go ahead. 

ALITO: Or even increasing it at all. That's not the sort of thing that subordinates generally do regarding superiors. 

But circuit splits are certainly undesirable. And I think everybody recognizes that, and that's one of the grounds for granting certiori. I know that when Justice White was on the court he regularly would dissent from the denial of certiori in cases where there was a circuit split because he felt strongly that circuit splits should be resolved by the Supreme Court. 

ALITO: I have friends, former colleagues from prior times in my career who are appellate attorneys, who specialize in cases before the Supreme Court and in appellate litigation generally. And occasionally I hear them complain about unresolved circuit splits that are difficult for their clients. 

And so I'm aware of their complaints. 

I haven't personally kept track of the number of circuit splits that exist, but certainly they are an undesirable thing and it is a ground for granting certiori. And I think one of the jobs that the Supreme Court has is to iron out circuit splits. 

There can be disagreements about whether there really is a circuit split, obviously, in a particular case, and there can be differences of opinion about the timing for resolving circuit splits. Sometimes the Supreme Court thinks it's advisable to wait and see how an issue plays out in a number of circuits before the Supreme Court decides to take on the issue. And that may improve their ability to resolve the issue when the case eventually comes before them. 

DEWINE: Judge, let me just suggest that I think it's a problem. And I think the Supreme Court needs to deal with it. Chief Justice Roberts indicated he thought the court could take on more. And I would suggest that they could. So I appreciate your comments. 

Judge Alito, let me ask you about Congress' power to protect our children from the proliferation of pornography on the Internet. This is an important issue. I raised it at the last hearing. It's one that I think is very troubling. 

Congress has tried several times to protect our children from being exposed to pornography on the Internet. In 1996, we passed the Communications Decency Act, but the Supreme Court struck it down, citing the First Amendment. A few years later, we passed the Child Online Protection Act. Again, the court struck it down. 

What bothers me about these cases is they fail to account for something that to me seems relatively simple: The core of the First Amendment is the protection of political speech, but it seems to me that pornography is altogether different. Unlike political speech, pornography has little value, if it has any value at all. 

DEWINE: It doesn't communicate a message, other than one that degrades women. It does not contribute to the public debate. And it actually causes harm to the victims who take part in making it and those who use it. 

There are, of course, a number of cases that seem to recognize that pornography is of lesser-value speech. In Young v. American Minitheaters, the court upheld zoning regulations on adult theaters. 

In doing so, Justice Stevens had this to say, and I quote, "Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate." 

Let me ask you, Judge, what is your thinking on the subject? Is pornography lesser-value speech as Justice Stevens has seemed to suggest? And are there or should there be different levels of speech under the First Amendment? 

ALITO: I think that the problem of protecting children from pornography on the Internet illustrates the fact that, although the task of the judiciary is to apply principles that are in the Constitution and not make up its own principles, to apply those to different factual situations, when the world changes and, in particular, when, in the First Amendment context when means of communication changes, the job of applying the principles that have been worked out -- and I think in this area, worked out with a great deal of effort over a period of time in the pre-Internet world -- applying those to the world of the Internet is a really difficult problem. 

And I understand that Congress has been struggling with it. And I know the judiciary has been struggling with it. 

The law, of course, as you know, constitutional law draws a distinction between obscenity, which has no First Amendment protection but is subject to a very strict definition, and pornography, which is not obscenity but is sexually related materials. With respect to minors, the Supreme Court has said it's permissible for a state to regulate the sale of pornography to minors. 

It has greater authority there. I think that's the Ginsburg case. It has great authority there than it does with respect to the distribution of pornography to adults. 

ALITO: Now, in the pre-Internet world, the job of preventing minors from purchasing pornography was a lot simpler. If they wanted to get it, I guess they would have to go to a store or some place and buy it. 

But on the Internet, of course, it's readily available from any computer terminal. And a lot of minors today are a lot more sophisticated in the use of computers than their parents. So the ability of parents to monitor what they're doing and supervise what they're doing is greatly impaired by this difference in computer aptitude. 

And I can't say much more about the question than that. It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government, so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors. 

DEWINE: Judge, I have one last question. 

If confirmed to the Supreme Court, only part of your job will be hearing arguments and issuing opinions. An equally important part of the job will be involved deciding which cases to hear in the first place. 

Each year the Supreme Court receives approximately 8,000 petitions for cert -- cert petitions as they are called. These are petitions by a party to a lawsuit asking the court to hear its case. 

Out of these 8,000 annual requests, the court decides to hear only about 75 to 80. For many years, individual justices would review each cert petition and cast a vote on whether to hear the case. Today, however, eight of the justices are part of what is called the cert pool. 

Here's how it works. All petitions are put into a pool. A single law clerk then picks up a petition and writes a memo recommending for or against hearing the case. That memo is then circulated to the eight justices in the cert pool who use it to cast their vote on whether to hear the case. 

Justice Stevens is the only one who does not participate in this pool. Instead, he has his staff prepare a memo on each case with a recommendation tailored to his own thinking on an issue. 

It would seem to me that the cert pool greatly limits the exchange of ideas among members of the court. 

DEWINE: I wonder if you could tell me how you would intend to proceed, if you're going to use the pool or if you are going to do what Justice Stevens does, or if you've thought about it. 

ALITO: Well, I'm aware of the issue. But I have not thought past what might happen with these confirmation proceedings. 

(LAUGHTER) 

So it's not the kind of issue that I have really thought through in my mind. 

If I'm fortunate enough to be confirmed, I think I would assess the situation at that time and talk to the Supreme Court justices and see what their views are, the reasons why they're proceeding in one way or another. 

I know from my perspective as a lower court judge that there is a constant conflict between the obligation that we have to deal with a very heavy case load and the need for the judge, as opposed to a law clerk or a staff employee of the court, to deal with the cases. 

We cannot delegate our judicial responsibility. But we do need to call on -- we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees so that we can deal with the large case load that we have. 

DEWINE: Thank you, Judge. 

SPECTER: Thank you, Senator DeWine.

FEINSTEIN: Thank you very much, Mr. Chairman. 

Good afternoon, Judge. 

Because Sandra Day O'Connor was the fifth vote on both Lopez and Morrison, I think I'd like to start with the commerce clause and your views of federalism. 

Do you agree with the direction the Supreme Court took in Lopez? 

ALITO: Well, Senator, that really relates to the next case in the Lopez-Morrison line of cases that might come before the Supreme Court. 

ALITO: And so I don't know how I can address that question without knowing what that case is. And, of course, my resolution of it... 

FEINSTEIN: I was just asking you about Lopez, but if you don't want to answer, that's OK. 

ALITO: Well, Lopez is a precedent of the court and it's been followed in Morrison and then it has to be considered in connection with the Supreme Court's decision in Raich. And I think that all three of those have to be taken into account together. 

I don't think there's any question at this point in our history that Congress' power under the commerce clause is quite broad, and I think that reflects a number of things, including the way in which our economy and our society has developed and all of the foreign and interstate activity that takes place. 

We do still have a federal system of government, and I think most people believe that is the system set up by our Constitution. 

FEINSTEIN: Right. 

Now, having said that, I pulled the Rybar case and read it over the noon break. And let me just see if we agree on the facts, and stop me if you think I'm misquoting or misstating anything. 

The Rybar case essentially took place the year after Lopez. It involved Mr. Rybar, who was a federally licensed gun dealer, who went to a gun show in Pennsylvania and bought a Chinese-type 54/7.62 millimeter submachine gun one day, sold it to Mr. Baublitz, went back the next day and sold him a military M-3 .45 caliber submachine gun. 

The grand jury indicted him on two counts of unlawful possession of a machine gun in violation of the law and two counts of unlawful transfer of an unregistered firearm. 

He changed his plea, pled guilty to two counts, I think pled conditionally guilty to two counts. 

And when the case came before you -- and I read with great interest your dissenting opinion -- and what you said was, and I quote, "If Lopez, which happened the year before, does not govern this case, then it may well be a precedent that's strictly limited to its own peculiar circumstances. But our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form." 

FEINSTEIN: And then you went on to say that the present form, quote, "might be sustainable in its current form if Congress made findings that the purely intrastate possession of a machine guns has a substantial effect on interstate commerce or if Congress or the executive assembled empirical evidence documenting such a link. 

"If, as the government and the majority boldly insist, the purely intrastate possession of machine guns have such an effect, these steps are not too much to demand to protect our system of constitutional federalism." 

So if I understand this, you essentially said that you wanted to follow precedent, newly established law in this area. And you left a little hedge that if Congress made findings in that law, then that might be a different situation. 

If Congress did make findings, would you have agreed that that statute would been constitutional? 

ALITO: What I said in the opinion and what I will reiterate this afternoon is that it would have been a very different case for me. I don't think I can express an opinion on how I would have decided a hypothetical case. 

FEINSTEIN: It's not hypothetical. I'm just asking you, if there were findings as you said, you might have sustained the law. 

ALITO: And I reiterate that... 

FEINSTEIN: And I'm just asking you would you have sustained the law... 

ALITO: I don't think that I can give you a definitive answer to the question because that involves a case that's different from the case that came before me. 

But I repeat what I said there: It would have been a very different matter if Congress had made findings. 

I have the greatest respect for findings. This is an area where Congress has the expertise and where Congress has the opportunity to assemble facts and to assess the facts. We on the appellate judiciary don't have that opportunity. 

So if Congress had made findings -- and I didn't insist on findings. If the executive branch, which was defending the statute, had pointed to testimony at hearings -- and that's been done in other commerce clause cases -- or statements by responsible government officials with expertise in the area of firearms control, or any other evidence that substantiated this, it would have been a very different case for me. 

And, of course, if there had been a jurisdictional element, then I think it's perfectly clear, under the precedents, that it would have been constitutional. 

FEINSTEIN: OK. Well, I accept that with one exception. I think most people know that particularly machine guns do affect interstate commerce. 

FEINSTEIN: And there is generally no question about that. If one looks at a gun trace, even before Mr. Rybar had the gun, the likelihood was that it came across state lines, particularly the Chinese model. 

So I think that's a difficult extrapolation for me to understand. But that's not necessarily dispositive. 

Let me go on. At the conclusion of your dissent, you wrote that, quote, "Even today, the normative case for federalism remains strong," end quote. 

Now, federalism is often used to describe the strengthening of state powers as the expense of the federal government. What exactly did you mean by that statement? 

ALITO: I meant that there are activities that -- and I think there's general agreement on this, and it goes beyond what the Constitution requires into areas of policy that I think Congress respects -- that I think there's general agreement that there are some activities that have traditionally been handled by the states and by local governments. And those are the areas in which they have taken the lead because the view has been that they're in the best position to deal with that. 

And that was the issue that was directly addressed by the Justice Kennedy's concurrence in Lopez. He relied in large part on the fact that -- he put heavy reliance on the fact that was what was involved in Lopez was a law relating to schools. And although the federal government certainly has a role in education, traditionally that has been regarded as something that is primarily to be handled at the state and local level. 

FEINSTEIN: OK. Now, you cited a Law Review article by a professor named Steven Calabresi. In that article, he argues that Lopez was a revolution that shattered forever the notion that after 50 years of commerce clause precedent, we could never go back to the days of limited national power. 

Do you agree with that? 

ALITO: I agree that Lopez was a startling development for a lot of people. 

ALITO: When I was in law school, I think the traditional wisdom was that the commerce power reached everything; that there was no limit to the power; that nothing could ever exceed the power. 

And Lopez and the Lopez line of cases have not made huge inroads on that principle, but it was the first time in a long time that a statute had been held to exceed Congress's commerce power. 

So to that extent, yes, it was a revolution. But how big of one... 

FEINSTEIN: I would say not yet has it made that kind of a dent. And that's why your nomination is so important, because you can be a decisive vote in this area. 

Do you believe that the Supreme Court's commerce clause decisions in the 50 years preceding Lopez are settled law? 

ALITO: I think that I'd have to talk about individual cases. But I do think that most of those -- the ones that come to my mind, I think, are well-settled precedents. 

FEINSTEIN: Now, unlike the machine gun law in Rybar, the Family and Medical Leave Act in Chittister did include congressional findings of fact as the Supreme Court confirmed. And yet you authored the majority opinion to invalidate the law. 

ALITO: Well, in Chittister... 

FEINSTEIN: Do you see a contradiction in that? 

ALITO: I don't, Senator. I don't believe that there were congressional findings in Chittister that went to the issue in Chittister. 

FEINSTEIN: OK, that's good. 

Now, let me ask you some questions. 

Is it enough for Congress to provide findings of fact in the statute? Or do the findings of fact need to be deemed sufficient by a court? 

ALITO: Well, what the Supreme Court has said is that findings of fact are very helpful when they are provided. And the court will certainly treat them with respect. But they are not necessarily definitive and they also are not necessary. 

Congress doesn't have to make findings. It's helpful when it does it. And, under the Supreme Court's cases, the findings are not necessarily definitive. That's what the Supreme Court has said about this. 

FEINSTEIN: But you struck down Rybar, ostensibly (ph). You said it would have better chance with if it had findings of fact. And this was a case where prior laws had major findings of fact with respect to machine guns this. I mean, this wasn't a new thing. 

ALITO: Senator, I looked very carefully at all of the materials that were cited by the other judges in Rybar and that were provided by the government. And the things that were cited from the legislative history of the prior statutes did not, in my view, go to the issue in Rybar. All of those prior statutes were statute that had jurisdictional elements in them. 

All that I was looking for was some evidence that the possession of a machine gun -- not the transfer of a machine gun or the sale of a machine gun, but the mere possession -- had a substantial effect on interstate commerce. 

That's what I understood the Supreme Court precedent to require. And it's not a very heavy burden to show that something has a substantial effect on interstate commerce. But that's what I understood the Supreme Court precedent to require. And that's what I was looking for. 

FEINSTEIN: OK. Let's move to the issue of a woman's right to choose and Roe. 

This morning, Senator Specter talked about how Casey reaffirmed the original soundness of Roe and then put emphasis on precedent. And he then asked, "How would you weigh that consideration were this issue to come before you if confirmed?" 

And, in response, you said, and I'd like to quote, "Well, I agree that, in every case in which there is prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent." 

Can you give us a few examples of a special justification, not including Brown v. Board of Education, which you think would qualify? 

ALITO: There are a number of factors that figure in the application of stare decisis in particular cases. There are factors that weigh in favor of stare decisis and there are factors that weigh against stare decisis. 

Factors that weigh in favor of stare decisis are things like what the initial vote was on the case, the length of time that the case has been on the books, whether it has been reaffirmed, whether it has been reaffirmed on stare decisis grounds, whether there has been reliance, the nature and the extent of the reliance, whether the precedent has proven to be workable. 

ALITO: Those are all factors that have to be considered on an individual basis. 

FEINSTEIN: But I'm asking you: What would be the special justification that you mentioned this morning that would be needed to overcome precedence and reliance? 

ALITO: Well, I think what needs to be done is a consideration of all of the factors that are relevant. 

This is not a mathematical formula. It would be a lot easier for everybody if it were, but it's not. 

The Supreme Court has said that this is a question that calls for the exercise of judgment. And they've said there has to be a special justification for overruling a precedent. There is a presumption that precedence will be followed. 

But it is not the -- the rule of stare decisis is not an inexorable command. And I don't think anybody would want a rule in the area of constitutional law that pointed and said that a constitutional decision once handed down can never be overruled. 

So it's a matter of weighing all of the -- taking into account all of the factors and seeing whether there is a strong case based on all of the... 

FEINSTEIN: My question was a different one, respectfully. 

ALITO: I'm sorry, Senator. 

FEINSTEIN: It was: Can you give me a few examples of what you think would qualify as a special justification for overruling prior precedent? 

And the reason I ask you this is, in our private conversation, you said to me that you didn't think there had been any case you could think of that had been more tested than Roe. So... 

ALITO: Well, Roe... 

FEINSTEIN: What special circumstance would there be which would overcome this kind -- whether you call it super-precedent or super- duper or anything -- but this kind of protracted testing over a 33- year period of time? 

ALITO: All right, Senator, I'm sorry if I didn't understand your question previously. 

One situation in which there is a special justification for overruling a precedent is if the rule is proven to be unworkable. 

ALITO: An example where the Supreme Court thought that a rule had proven to be unworkable is provided by National League of Cities and San Antonio Transit Authority v. Garcia. National League of Cities asked whether something was traditionally a sovereign function. 

And that resulted in a whole series of cases in the lower courts, a number of cases in the lower courts, and a number of cases in the Supreme Court in which the courts had to decide whether something was on one side of this line or not. And it proved, in the view of the Supreme Court, to be a very difficult standard to work with. 

And finally in Garcia, they said: This is unworkable, and we're going overrule National League of Cities and we're going to leave it to Congress to deal with the federalism issue that's presented here this. This is an example of the Supreme Court saying there's a federalism concern here, but it's one that Congress rather than the court would have to deal with. 

Sometimes changes in the situation in the real world can call for the overruling of a precedent. An example of that is provided by Katz v. United States, which I was talking about this morning in relation to wiretapping. 

The old rule under Olmstead was that in order for there to be a search, you had to look to property law. You had to see whether there was an invasion of a property interest. And then with the development of electronic communications and electronic surveillance, wiretapping or other forms of electronic surveillance, which is what was involved in Katz, the Supreme Court said that this is a sensible way to apply the Fourth Amendment principle under the conditions of the modern world. And they said infamously that the Fourth Amendment protects people, not places. 

So they shifted. They found the doctrinal underpinnings of the old Olmstead rule to be undermined by developments in the society and they shifted the focus from property law to whether somebody had an expectation of privacy. 

Those are examples. 

FEINSTEIN: Well, and you did say that you believe the Constitution provides a right of privacy? 

ALITO: I did say that. The 14th Amendment protects liberty. The Fifth Amendment protects liberty. And I think it's well accepted that this has a substantive component and that that component includes aspects of privacy that have constitutional protection. 

FEINSTEIN: Let me ask you about your dissent in Casey. You reasoned that most women seeking abortions are either unmarried or would tell their husbands and therefore few would be harmed if spousal notification was required. 

Justice O'Connor, on the other hand, ruled, and I quote, "The proper focus of constitutional inquiry is the ground of whom the law is a restriction, not the group for whom the law is irrelevant," end quote. 

FEINSTEIN: Why did you propose a different approach than Justice O'Connor? 

ALITO: I mentioned the fact in my opinion that this provision applied to only married women. But I don't think that was really the focus of what I was getting at. 

I think I agree with her that you look at the group that's affected, not the group that's unaffected. So that would be women who fell within this provision of the Pennsylvania law. 

And the standard that she had articulated in the earlier cases, was, as I described it a couple of minutes ago, that an undue burden, in her view, had to be an absolute obstacle or an extreme obstacle, and it could not be simply something that inhibited some women; "the some women" phrase was her phrase, not my phrase. 

FEINSTEIN: I'm going to ask you one other quote that some of my colleagues may disagree with what she said, but she said it. And that is, "A state may not give to a man the kind of dominion and control over his wife that parents exercise over their children." 

Do you agree with that? 

ALITO: I never equated the situation of an adult woman who fell within the notification provision of the Pennsylvania statute with the situation of a minor who was required to provide notice. 

There's an analogy, and the earlier case that Justice O'Connor had decided, the Hodgkin case, was a minor notification statute. But I think I made it quite clear in my opinion that this was nothing more than an analogy and that there was no close -- these situations were very distinct. And I was aware of that. And I think I pointed that out. 

FEINSTEIN: Let me move on, if I might. 

One of the core principles of Roe is that a woman's health must be protected. In Casey, O'Connor specifically wrote that after viability the state, quote, "may, if it chooses, regulate and even proscribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life of the mother." 

This requirement to protect a woman's health was also reaffirmed in Stenberg v. Carhart, where it was said, "The court rejects Nebraska's contention that there is no need for a health exception." 

Do you agree if a statute restricts access to abortion that it must protect the health of the mother in order for it to be constitutional? 

ALITO: Well, I think that the case law is very clear that protecting the life and the health of a mother is a compelling interest throughout pregnancy. I think that's very clear in the case law. 

FEINSTEIN: Thank you. I appreciate that. 

In 1985, at the time you wrote the strategy memo on Thornburg, the court had already held that Roe, Akron, and eventually 30 other cases, that a woman had a constitutional right to choose whether to continue a pregnancy. 

In addition, in your memo, you specifically wrote that in the Akron case, the Supreme Court reaffirmed Roe. However, despite this, your memo outlined a strategy to eventually overturn Roe. 

My question is a little different from what you discussed somewhat yesterday: What was your view of precedent at the time you wrote that memo? 

ALITO: Well, I think there are two things that I should say in response to that. 

The first is that I did not advocate in the memo that an argument be made that Roe be overruled. And therefore, the whole issue -- had the government proceeded with the argument that I recommended, the issue of stare decisis wouldn't have been presented. 

And so there wasn't any occasion for me to talk about stare decisis in the memo, and I did not talk about it. I think there's a mention of it in a footnote. 

So I didn't address it and there wasn't an occasion to address it. 

The second thing I would say is that stare decisis is a concern for the judiciary much more than it is for an advocate. An advocate is trying to achieve a result. And so for an advocate, stare decisis can be either a great benefit if it is in your favor, or an obstacle to get over. But it isn't the kind of issue that needs to be grappled with in the way in which a court has to grapple with stare decisis. 

FEINSTEIN: OK. In Casey, you wrote about the harms caused by spousal notification to the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors. 

Just to go back to that, is this what you meant? 

ALITO: Well, Senator, I don't -- I did not equate the situation of a married woman with the situation of a minor. 

FEINSTEIN: I mean, you keep saying that, but I keep going back to the words and it seems they seem to say that. 

ALITO: Well, I think if you look at the words, I actually said that I don't equate these two situations. I was mindful of the fact that they are very different situations. 

But often the law proceeds on the basis -- legal reasoning is based on analogy. And so if you take a situation that's quite different and yet has some relationship to a situation that comes up later, you can draw some analogies while still recognizing that the two situations are very different. 

If you're talking about the potential for abuse, that certainly is something that can come up in either of these two contexts, and it's a tragedy in either context. 

If a single minor is abused as a result of notification, that's a tragedy. If a single adult woman is abused as a result of notification, it's a tragedy. 

But what I think I'm getting at there is that this was what we had and this is what I had, this was the information that I had to work with to try to understand what this provision meant. 

And so you work with what you've got and that's what I had, and I was trying to see to what degree the prior situation was relevant and to what degree it wasn't relevant to the issue that was before me. 

FEINSTEIN: I'd like to quickly just switch subjects for a moment just to clarify something you said this morning, and this has to do with electronic surveillance of Americans. 

As you know, in 1978, the Congress, after a lot of introspection, passed a bill called the Foreign Intelligence Surveillance Act, which we call FISA, which essentially set up the parameters for all electronic surveillance within the United States. And it's very specific, if you read it. 

There is a great concern right now because of what's been happening with respect to electronic surveillance, quite possibly involving Americans, as well as foreigners. You said something interesting this morning. You said, generally, there has to be a warrant issued by a neutral and detached magistrate before a search can be carried out. 

FEINSTEIN: Now, with respect to the FISA law, the committee report -- Birch Bayh was the chairman of the Intelligence Committee at the time -- he spells out: This covers all surveillance in the United States. 

And then, President Carter, when he signed the law, said, this covers all surveillance within the United States. So there is a burgeoning question as to whether the president now has the authority to wiretap Americans without going through the FISA court. 

When you said, generally, there has to be a warrant, what that said to me is you were providing for an exception. Is that correct? Are you providing for an exception? 

ALITO: I think that what I was addressing when I said that was what the Fourth Amendment means, the general principle that is set out in the Fourth Amendment. 

And the case law under the Fourth Amendment says a warrant is generally required. But there are well-recognized situations in which a search can be carried out without a warrant. Exigent circumstances is a situation that comes immediately to mind. If... 

FEINSTEIN: Well, let me stop you here. Do you recognize Justice Jackson's comment in the 1952 Steel case where he set up that tripartite framework for presidential authority? 

ALITO: I do, yes. 

FEINSTEIN: And when it is at its weakest is when Congress has legislated? And, in 1978, Congress did legislate and covered the horizon, so to speak? 

ALITO: Yes, Senator, I recognize that and I think that's a very useful framework for addressing issues of executive power. 

Now, there's a question about what the meaning of what Congress did and that would be a statutory question: What is the meaning of the provision of FISA in question? 

And maybe there's no substantial argument about what is meant there, but maybe there would be an issue about what was meant there and certainly there could be an issue about the meaning of the authorization of the use of military force. How far was that intended to go? 

And so this statutory question I think would -- that certainly would be an issue that could come up in this situation. And probably, you would need to -- I think you would have to resolve the statutory question before you could figure out which of the three categories that Justice Jackson set out that the case fell into. 

FEINSTEIN: Thank you. I've run out of time. I'll continue this next session. Thank you. 

ALITO: Thank you, Senator. 

SPECTER: Thank you, Senator Feinstein. 

Senator Sessions? 

SESSIONS: Thank you, Mr. Chairman. 

We've had a good hearing, I believe. A lot of exchanges have occurred. 

I will agree with Senator Biden: I can't remember a nominee being this forthcoming. You've gone into more detail and talked closer to questions that may come up before you -- without going too far, in my opinion -- than we've seen before. You've been very open. And I've been very impressed with your analytical spirit and your ability to handle these cases. 

We need an aggressive hearing. I agree with those who say that questions need to be propounded to the nominee because this is the only chance, politically, that we will have; that you will ultimately be on the bench for life, unaccountable to the political process. So it's good to ask questions. 

My concern is similar to that of Senator DeWine's: that many of the accusations and allegations are unfounded or distortions are really not fair. And some of the things that have been said about you are not correct. If they were correct, you would not receive the overwhelming support of your colleagues and have their admiration so totally, as you do. 

Judge Alito, we talk about the role of a judge and how you handle cases that come before you. You were asked, "What's your opinion on Lopez?" and you said, "Well, I haven't studied that case precisely or at least the background of it. I didn't sit on it." 

Would you explain to us, as an appellate judge, as you do today, but also even more so as a Supreme Court justice, how cases come to you and what you should do before you make a decision or express an opinion on the ultimate outcome of a case; why you should be careful; and what this great legal system that we have arranges for before a judge makes that final decision? 

ALITO: Well, certainly, Senator. 

We have an adversary system. And that means that both sides get the opportunity to present their arguments. 

ALITO: And we have established judicial procedures, and they are time-consuming and they are burdensome, and maybe some people would say that some of them are old fashioned, but I think they are work well. 

They are designed to make sure that there's a vigorous presentation of both sides of the issue that is presented in the case at hand, not some abstract issue that might be addressed in a law review article or a broad issue that might be addressed in a piece of legislation, but an actual concrete case, a dispute between real parties that comes before the court. 

Both sides have the opportunity to present the arguments that they think have a bearing on that case. The judges get the opportunity to read the briefs. And then... 

SESSIONS: Can I interrupt you there? And you're talking about the appellate court. 

ALITO: That's correct. 

SESSIONS: There has been a trial with jurors and witnesses and trial judges and those kind of things that's already occurred. It's now on appeal. No witnesses are being called, but the transcript is available. And one side or the other is alleging that they weren't treated fairly. Is that correct? 

ALITO: That's correct. 

SESSIONS: So you decide whether or not a fair trial occurred. And how do you continue now with the process and how do you ultimately come to make a decision? 

ALITO: Well, we receive briefs, and the briefs are well thought out by the attorneys, and it provides, if the case is well briefed, a strong presentation of the positions on both sides of the question. And if it's an issue of great public importance, there may be other people who file briefs, so-called friends of the court. And on the Supreme Court now these days they get a lot of those on both sides of many of the big issues that come before them. 

So that ensures that they have a strong presentation of all the arguments that can be made on both sides of the issue, both sides of the case, and the first step in the process would be to read all of those. And then there would be an oral argument. And at that point the justices of the Supreme Court or the judges of my court... 

SESSIONS: Now, oral argument means the lawyers for each party come and orally argue the case before the court, is that correct? 

ALITO: That's right. 

SESSIONS: Now, you should not have made up your mind even at that point, should you? 

ALITO: You shouldn't. I think very often I come into an oral argument with a tentative idea about how the case should be decided, I've thought through the issue as much as I can, but my mind is open to the possibility that something will happen during the oral argument or later in my discussion with the other judges that might change my mind. 

So we have the oral argument, and the lawyers will make their presentation and in that situation I have the opportunity to ask questions, unlike today, and that's a better situation to be in. But it gives me a chance to explore the issues in the case that are troubling to me, and I can pose hypotheticals to the lawyers and try to explore how far their arguments go. 

And after we have the argument, the judges get together in what's known as the conference. That's a private meeting when just the judges are present. And we each discuss the case. And very often one of my colleagues will say something that makes me think about the case differently than I did going into the conference. 

ALITO: But at the end of the conference, if we've all voted, then we exchange our views and we come to a conclusion about how a case should be decided. 

And it's only at the end of that process that we actually have a vote on the decision, and then somebody is given the job of writing an opinion. And sometimes things even change during the opinion-writing process. There have been numerous cases in which I've had the opinion and I've been giving the job of writing an opinion to affirm or the reverse. And in the process of writing the opinion, I see that the position I had previously was wrong -- I change my mind. 

And then I will write to the other members of the panel and I will say, "I've thought this through and this is what I've discovered and now I think we should do the opposite of what we agreed." And sometimes they'll agree and sometimes they don't. 

So it's a long process, and it's only at the end of that whole process that I think, when the opinion is actually going to be issued, the judge is in the position to say, "Now I've done everything I can with this, and this is how I analyze the issue." 

SESSIONS: And you said in your opening statement that one of the habits of minds that a good judge should develop is the habit of delaying reaching conclusions until everything has been considered. 

I suppose that's why you would be somewhat reluctant to express an opinion on Lopez or Bush v. Gore or some of these other great decisions, because you would know before you rendered such an important decision in a case like that that you've given it the most thorough analysis and you've heard from all the briefs and considered all the arguments of the parties involved. Is that correct? 

ALITO: That's an important part of the legal process. 

If anybody has sat on a jury, they've probably been instructed by the judge not to reach any conclusions about the case until they've heard all the evidence -- not to reach premature conclusions. 

Judges have the same obligation. It doesn't mean you don't think about things; you do think about them. 

ALITO: But you don't reach your final conclusion until you've gone through this entire process. 

SESSIONS: Well, you said earlier that no person in this country, no matter how high or powerful, is above the law, and no person is beneath the law. 

Can you assure us that you will have the courage and the determination to rule according to your best and highest judgment of the value of the case regardless of whether or not it's the person who appointed you or the Congress who confirmed you or any other political pressures that may fall upon you? 

ALITO: I can, Senator. I would do that to the best of my ability. 

That's what I've tried to do on the Court of Appeals. And if I'm confirmed, that's what I would do on the Supreme Court. 

SESSIONS: Well, I believe you will. That's your reputation. That's what other lawyers say about you. That's what professionals who know you conclude. And I think it's an important commitment that you've made to us. 

You know, we have arguments about a number of cases, and the Rybar case has come up a good bit. It involved the machine gun. 

I was a United States attorney, as you were. And we prosecuted machine gun cases for years. The Supreme Court has -- under Section 922, there is no jurisdictional element. 

Now, historically, criminal statutes of federal law have jurisdictional elements. The most common statutes historically that were prosecuted were interstate transportation of stolen motor vehicle -- it's not a stolen motor vehicle, it's the interstate transportation that makes it a federal crime -- or the interstate transportation of a stolen property, or kidnapping: Kidnapping within a state is not a federal crime, it's only kidnapping that goes interstate. 

So I guess I would ask you to explain for those who may be listening today what this historical procedure is that requires a jurisdictional element of an interstate nexus for the federal government to be able to prosecute a crime in some state or county in America. 

ALITO: Yes, Senator. Certainly. 

Well, let me start with the Constitution. The Constitution gives the legislative branch certain powers and they're enumerated in the Constitution. 

And one of those powers is the power to regulate interstate and foreign commerce. And a great deal of legislation that Congress passed during the 20th century was regulation that was based on its power to regulate interstate and foreign commerce. 

And many of the criminal statutes that Congress has passed, the federal criminal statutes, are based on Congress' power to regulate interstate and foreign commerce. 

So it's necessary for each of these statutes to fall within this power to regulate interstate and foreign commerce. And one of the ways of ensuring that each exercise of this power falls within Congress' authority under the commerce clause is to require that the jurisdictional element be proven in the case. 

And in the case of firearms, as I mentioned earlier, the Supreme Court has said it's enough to show that the firearm at some point in its history traveled in interstate and foreign commerce. 

In my experience as a U.S. attorney and before that as an assistant U.S. attorney, was that this is not a difficult burden for prosecutors to meet. I can't recall a case during the time when I was U.S. attorney where anybody expressed the slightest problem with satisfying this. 

So this is a very simple way of satisfying the interstate commerce element in the case of firearms offenses. 

SESSIONS: I couldn't agree more. And that's what all the traditional firearm laws call for. And that's how we proved every case that I prosecuted. 

You put somebody on -- I proved it once because it said "made in Italy" on the gun. But you prove that the gun had been transported in interstate commerce, and that's an element that gives the federal jurisdiction. 

And as I understand your opinion, you said if the Congress had simply put that in the statute as an element of the offense, then it would have met constitutional muster. 

So I guess I'd say to my colleagues on the other side and others, maybe we ought to check this law out and let's get up a piece of legislation that puts in the jurisdictional element like all the other historic criminal offenses have, and we get this thing done instead of fussing about it. I feel strongly about that. 

But when you don't make it a jurisdictional element, then it's not a matter of proof -- is that not right, Judge Alito? -- and therefore the defendant is not having all the elements of the case proven beyond a reasonable doubt to the jury that hears the case. That's why it's important. 

ALITO: That's correct. 

SESSIONS: We talked about a lot of these cases. I would just generally like to express my disagreement with those who criticize the Garrett case. 

It did involve the University of Alabama. And I believe that the attorney general of Alabama was correct to assert that the plaintiff could sue, could get back wages, could get their job back, but under the sovereign immunity doctrine that protects states from lawsuits, that under the way that statute was passed, they could not get money damages against the state of Alabama. 

I think that was the core issue in it. 

I also would like to join with Senator DeWine in his very cogent analysis of precedent and super-precedent. 

SESSIONS: I think that was insightful for us and would like to be on record as joining with that. 

Judge Alito, back 20 years ago, you wrote a memorandum to Solicitor General Charles Fried, who was a law professor, I guess, before he became solicitor general and went back to Harvard and is there now, a brilliant legal mind. 

He was the solicitor general. You worked for him. You submitted a memorandum on a Pennsylvania case, a case that came out of Pennsylvania. 

And it seemed to me to be a preliminary analysis of that issue and the question of whether or not that case -- whether the Department of Justice should intervene in that case and file a friend of the court brief. 

Was it a preliminary overview of the issue and not the final brief or final summary of argument for the appeal? 

ALITO: And that's the Thornburg case that you're referring to, Senator? 

SESSIONS: Yes. 

ALITO: It wasn't the brief, yes. It was a memorandum about whether the government should file a brief as a friend of the court. 

SESSIONS: And you pointed out a number of points in that decision that was being questioned that I thought the court had overreached and gone too far. 

A number of them are quite erroneous, it appeared to me. And you analyzed that very carefully. But, before you concluded your argument, you suggested -- not suggested -- you stated that you did not think a frontal assault on Roe v. Wade would be appropriate. Is that correct? 

ALITO: Yes, that's correct. 

SESSIONS: And was it not the position of President Reagan and the attorney general of the United States at that time that Roe v. Wade was wrongfully decided and they would seek the opportunity at some point to seek the overruling of it? 

ALITO: That was the express position of President Reagan himself. He had spoken on the issue and he had written on the issue. 

SESSIONS: So your opinion to the solicitor general as a young staff attorney in the Solicitor General's Office was in some ways contrary to that of the president of the United States? 

ALITO; Well, I was doing what I thought my job was as an advocate, which was to outline the litigation strategy that would be in the best interests of my client, given what my client was interested in. 

And it seemed to me that the strategy that I recommended was the best strategy to be followed. 

SESSIONS: And did they follow your suggestion? 

ALITO: No, they did not. They argued that Roe v. Wade should overruled and the Supreme Court rejected that argument. 

SESSIONS: They in fact carried out a frontal assault, and it was not approved by the court. 

So I think that, to me, plus your other decision in which you ruled that Health and Human Services funds could be utilized to fund an abortion for those who qualified was a close question; that case was, I thought. There was a dissent in it. But you ruled in favor of the pro-choice, the pro-abortion side of that case, even though a dissent argued that it was in error. Is that correct? 

ALITO: That is correct. That's what I thought the law required. I thought we were required to defer to the Department of Health and Human Services' interpretation of the statute, and so that's how I voted. And if I had been out to implement some sort of agenda to uphold any abortion regulation that came along, then I would not have voted the way I did in that Elizabeth Blackwell case. 

SESSIONS: Back in your memorandum in 1985 on the question of abortion, one of the provisions of the Pennsylvania law that was struck down by the court of appeals simply said that there must be a humane and sanitary disposal of aborted fetuses, and you thought that was unwise and you pointed out that there is a federal statute already on the books that mandates the humane disposal of excess, wild, free-roaming horses and burros. Did you not? 

ALITO: Yes, that's correct. That was the statute. 

SESSIONS: So this idea that every time a court rules on a pro- abortion opinion that they're always correct, I think is not true. I think the court has been awfully arrogant and dismissive of the states' rights and legitimate concerns in some of these questions that we're dealing with. 

Judge Alito, you know the salary that a federal judge makes; is that right? 

ALITO: I do, all too well. 

SESSIONS: Do you know what it would be on the Supreme Court? 

ALITO: I actually don't know exactly, no. 

SESSIONS: A little more, I think. Not much. Do you think you can live on that? 

ALITO: I can. I've lived on a federal judge's salary up to this point. 

SESSIONS: You've been accused of favoring an all-powerful executive a couple times in this committee. Can the president cut your pay? 

ALITO: No, he can't do that. The Constitution says that, fortunately. 

Well, nobody can. The president certainly can't, and Congress can't either. 

(LAUGHTER) 

SESSIONS: A sigh of relief there. They can increase it though, right? 

ALITO: They can, yes. 

SESSIONS: Well, we have a tight budget. Senators and congressmen up here, sometimes privately, they'll tell you they think they need to be paid more. But we're prayed pretty generously in my view. And maybe we need to set some examples about financial management. Maybe we'd like to do more, but it's difficult. 

But I raise that because a Supreme Court can declare null and void a legislative enactment by the Congress, can it not, if it violates the Constitution in their opinion? 

ALITO: Yes, it can. 

SESSIONS: Does anybody review the Supreme Court's review? 

ALITO: No. 

SESSIONS: And Congress can cut off money for any program they want to. In fact, the Antideficiency Act says it is a crime for any agency of government to spend money that has not been appropriated by Congress. Is that a reviewable act by anyone, for Congress not to fund a program or agency of the United States government? 

ALITO: No, I don't think that's reviewable. 

SESSIONS: Aren't there things that the executive branch can do that are not reviewable? 

ALITO: There are certainly some things that are not reviewable. Vetoes are not reviewable, pardons are not reviewable. 

SESSIONS: So the mere allegation that an act of the president is unreviewable may not be as disastrous as it sounds or as bad as it sounds because certain branches are given certain powers. 

ALITO: That's correct. 

SESSIONS: I'd like to talk a little bit about this question of activism. And I want to be frank about it. Some of our liberal colleagues have correctly made the point that conservatives can be activists, too. 

And if you take the definition of activism as an action by a judge who allows their personal, political or social or moral values to override their commitment to the law, do you believe that a judge who is conservative can be an activist just as easily as one who's liberal? 

ALITO: Yes, I do. I don't think that activism has anything to do with being a liberal or being a conservative; it has to do with not following the proper judicial role. It has to do with a judge's substituting his or her own views for what the Constitution means and for what the laws mean. 

SESSIONS: Now, if a statute passed by Congress plainly violates the Constitution, is it an activist decision if the court strikes it down, in your opinion? 

ALITO: No. I think that's been settled since Marbury v. Madison back at the beginning of the 19th century, that when a case is presented to the Supreme Court and there's a question raised about the constitutionality of a statute and the court concludes that the statute is unconstitutional, it's the obligation of a court to follow the Constitution and not the statute. 

SESSIONS: Well, if you take the definition of activism I think that Senator Hatch and others have used that indicates, as we just discussed, that it's departing from the faithful application of the law, I think you can have liberal and conservative activists. 

But I would just say to you, the mere striking down of a statute as unconstitutional is not activism -- not if you're faithful to the Constitution and to the laws of the land. 

SESSIONS: And I would say this: I believe, on our side of the aisle, the deep concern that we have about judicial activism is a legitimate one. 

We believe that there has been a liberal social agenda being promoted too often by the courts that is foreign to history and contrary to the wishes of the American people. 

I believe your philosophy is not one to enforce a conservative activism. I believe your philosophy is simply to follow the law and let the political branches debate these issues and decide them through the popular political process. Is that fair to say? 

ALITO: That's exactly correct. The judiciary should do what it is supposed to do, but it has to have respect for the political process. And our constitutional system sets up a government under which most of the decisions, the policy decisions, the things that affect people in their daily lives -- the spending of money, taxing, decisions about foreign policy, and many other areas -- are to be made by the political branches of the government. 

And the judiciary's role is confined to enforcing the Constitution and enforcing the laws and not going beyond that. 

SESSIONS: As you analyze how to interpret the Constitution of the United States or a statute passed by the United States Congress, do you believe that authoritative insight can be attained by reading the opinions of the European Union? 

ALITO: I don't. I don't think that it's very helpful. In fact, I don't think it is helpful to look at the decisions of foreign courts for the interpretation of our Constitution. 

I think we can do very well with our own Constitution and our own judicial precedents and our own traditions. And I don't say that with disrespect to the other countries, but I don't think that there are insights to be provided on issues of American constitutional law by examining the decisions of foreign courts. 

I think that's it's very interesting from a political science perspective to see what they've done and I've personally been interested in this over the years. 

ALITO: And I think it's flattering to us that so many other countries have followed our judicial traditions. 

But on issues of interpretation of our Constitution, I don't think that that's useful. 

SESSIONS: Judge Alito, this is a big deal in our country today. 

Millions of Americans believe that the court is losing discipline, that it's not remaining faithful to the Constitution. And, in fact, I share many of those views, a lot of people do. 

And do you think that if a court, in fact, is not faithful to the law but allows personal or political or social views to influence their decisions, that this could in the long run endanger public respect for law and even undermine the great heritage of the rule of law that we have in this country? 

ALITO: I think that everybody who holds a public office under the Constitution has a solemn responsibility to follow the Constitution and the laws that define the role that person, that officer is supposed to play. 

And I think that the continued success of our constitutional system and public respect for the constitutional system are dependent on people who have the public trust doing that, making a really strong effort to follow the provisions of the Constitution and other laws that define the role that they are supposed to play. 

SESSIONS: I'd like to just once more touch on this Groody case in which there was a search of a young girl. A warrant was issued, was it not, by a federal magistrate? Was it a federal magistrate? 

ALITO: It was a state magistrate. 

SESSIONS: A state magistrate. 

And police officers go to the state magistrate and they get a warrant and the magistrate says that the affidavit is made a part of the search warrant. 

SESSIONS: And the officers take it, and in their search warrant they made affidavit that the individuals in this house known for distributing drugs often had drugs on their persons, and they then went and executed the warrant after going to the court and getting approval. And they find people on the premises. 

And there were two females and a female officer took the two females into a bathroom and did a quick search by asking them to pull down their outer garments -- not all their garments -- pull up their blouse, and determined they had no contraband or weapons on them. And that was that. 

And the case came before you, years later I suppose, on a lawsuit against the police officers. And that's what you were ruling on, were you not? 

ALITO: That's right, whether they were liable for money damages. And under the law, if they had a reasonable belief that they were authorized by the warrant to search people who were found on the premises, then they should not be liable for civil damages. 

The warrant had incorporated the affidavit for purposes of establishing probable cause and the officers had said in the affidavit that there is probable cause to believe that people on the premises may have drugs on their possession, and the magistrate judge had accepted that by incorporating the affidavit for purposes of probable cause. And under those circumstances, I thought that, at a minimum, it was reasonable for the officers to believe that -- the judicial officer, the magistrate had said that they were to do exactly what they did.

SESSIONS: I agree. 

Thank you, Mr. Chairman. 

SESSIONS: Thank you, Senator Sessions.

Thank you, Judge Alito. 

At this point we'll take a break until five minutes to 5.

SPECTER: We now turn to Senator Feingold for 30 minutes. 

FEINGOLD: Judge, thank you for all your patience today and throughout this process. 

ALITO: Thank you, Senator. 

FEINGOLD: There's already been a lot of discussion of this topic today, but I'd like to be sure I understand your opinion about whether the president, as commander in chief, can ignore or disobey an express prohibition that Congress has passed. 

The torture statute is one example, but obviously I could imagine a variety of others as well, as I'm sure you could. 

Here is the question: What are the limits, if any, on the president's power to do what he thinks is necessary to protect national security, regardless of what laws Congress passes? 

ALITO: Well, when you say regardless of what laws Congress passes, I think that puts us in that third category that Justice Jackson outlined, the twilight zone, where, according to Justice Jackson, the president has whatever constitutional powers he possesses under Article II, minus what is taken away by whatever Congress has done by an implicit expression of opposition or the enactment of a statute. 

To go beyond that point, I think we need to know the specifics of the case. We need to know the constitutional power that the president -- the type of executive power the president is asserting and the situation in which it's being asserted and exactly what Congress has done. 

FEINGOLD: Then, let's take a more concrete example. Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations, in violation of the criminal and foreign intelligence surveillance statutes of this country? 

ALITO: That's the issue that's been framed by the developments that have been in the news over the past few weeks. 

And, as I understand the situation, it can involve statutory questions, the interpretation of FISA and the provision of FISA that says that no wiretapping may be done except as authorized by FISA or otherwise authorized by law and the meaning of the authorization for the use of military force and then constitutional questions. 

And those are issues, as I said this morning, that may well result in litigation. They could come before me on the Court of Appeals for the 3rd Circuit. They certainly could come before the Supreme Court. 

And those are weighty issues involving two of the most important considerations that can arise in constitutional law, the protection of the country and the protection of people's fundamental rights. 

And I would have to know the specifics in the arguments that were made. 

FEINGOLD: Well, they are indeed important questions. And that's why it's so important for me to figure out where you would be heading on this kind of an issue. 

And, in fact, the question I just asked you was not something I formulated right now. It's the question that I asked word for word of the attorney general of the United States at his confirmation hearing in January 2005. 

And he answered as follows: "Senator, the August 30 memo" -- that's the memo that we sometimes refer to as the torture memo -- "has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So, it's been rejected by the executive branch. I categorically reject it. 

And, in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture. "And so what you're really discussing is a hypothetical situation," was the end of his quotation. 

FEINGOLD: Well, we now know of course that it wasn't a hypothetical situation at all. When the attorney general said he categorically rejected the torture memo, including the section regarding the commander in chief's authority to ignore criminal statutes, he was also not being straight with this committee. 

So I'd like you to try to answer this question: Can the president violate or direct or authorize others to violate the criminal laws of the United States? 

ALITO: The president has the obligation under Article II of the Constitution to take care that the laws are faithfully executed. 

And the laws mean, first and foremost, the Constitution of the United States. That applies to everybody. It applies to the president. And the president, no less than anybody else, has to abide by the Constitution. 

And it also means that the president must take care that the statutes of the United States that are consistent with the Constitution are complied with. 

And the president has an obligation to follow those statutes as well. 

Those are the important general principles. And the application of them in a particular case depends on the facts of the case and the arguments. And a judge needs to know the arguments that are being made on both sides before addressing -- before reaching a conclusion about the result. 

Those are the overriding considerations. 

FEINGOLD: Well, I take that answer -- and obviously you may not be able to comment on it because of the possibility of it coming before you. 

I take that to be a pretty serious answer in terms of the president's responsibilities to uphold and make sure that the laws are followed, and including the criminal laws of the United States. 

So given the fact that this interpretation of the FISA law may well come before you at some point, I take it, as you've indicated, that would not only be an initial part of your analysis but an awfully important analysis of whether the president has the power to override these criminal statutes. 

And I certainly want to say for the record I don't believe the president has the ability to do that in this case. And, in fact, I think it would be almost impossible to interpret the FISA law in any other way than it clearly states; that it is the exclusive authority with regard to wiretapping outside of the criminal law. 

FEINGOLD: And you said earlier today, Judge, in response to Senator Leahy that these types of gravely important constitutional questions very often do not end up being resolved by the judiciary but, rather, by the other two branches. 

So what is the proper role of the judiciary in resolving a dispute over the president's power to disobey an express statutory prohibition? 

ALITO: Well, the judiciary has the responsibility to decide cases and controversies that are presented to the judiciary. And that means that there has to be a concrete dispute between parties and the parties have to have standing under the Constitution. 

And there's a whole doctrine that's called the political question doctrine, but it's a very misleading term for people who are not lawyers. 

It doesn't mean that the dispute has something to do with politics or anything like that. It means that the dispute, in the sense in which people usually use the term "politics." It means that it's a kind of dispute that the Supreme Court has outlined as being not a proper dispute to be resolved by the judiciary, involving a constitutional issue that should be resolved often between the branches of governments. 

And I was talking earlier about some things that the president does that are not reviewable -- vetoes, pardons, et cetera. There are things that Congress does that are not reviewable -- impeachment, et cetera. 

In Baker v. Carr, Justice Brennan's opinion outlined a whole list of factors that inform the analysis of whether something is a justiciable dispute. And sometimes these disputes between the branches of government are held by the Supreme Court to fall into that category of being disputes that can't properly be resolved by the courts. 

FEINGOLD: Do you expect that this matter of the warrantless searches is likely to be resolved with regard to the initial political question doctrine? Or do you think it would be likely to be resolved on the merits with regard to the statute and the Constitution? 

ALITO: I don't think could answer that without providing sort of an advisory opinion about something that could well come up. If this does come up in litigation, then the courts have an obligation to decide whether it's a justiciable dispute. 

The political question doctrine -- this doctrine of issues that are not justiciable -- often involves conflicts between the branches of the government. And when a person is asserting a person's individual rights are violated, that is the type of case that is often resolved -- I mean, typically resolved by the judiciary. 

FEINGOLD: Well, Judge, aren't we going to be in kind of a tough spot if we find out the Supreme Court can't help us figure out whether the FISA law is an exclusive authority or not? Isn't that going to be hard to resolve between the executive and the Congress? 

ALITO: Well, Senator, when I said in reference to Senator Leahy's question that often disputes between the two branches are resolved without resorting to the courts, I don't think I was referring specifically to this issue.

ALITO: And if I gave that impression, that was a false impression. I think what I meant to say and what I hope that I did say was that separation of powers disputes in general sometimes fall within this doctrine. 

FEINGOLD: Noted a few times today that the questions of the president's power in the wiretapping area and other areas will likely come before the courts, including the Supreme Court. You just did that. 

As I understand it, you've prepared for these hearings over the past few months with a variety of practice sessions. Some have called them moot courts or murder boards. Was the question of the president's power in time of war to take action contrary to a federal statute ever raised in any way during any of the practice sessions for these hearings? 

ALITO: I have had practice sessions on a great variety of subjects, and I don't know whether that specific issue was brought up. It may have been. But what I can tell you... 

FEINGOLD: You don't recall whether this issue... 

ALITO: No, the issue of FISA certainly has been something that I have studied, and this is not -- FISA is not something that has come before me as a judge. 

FEINGOLD: But you don't recall whether or not this was covered in the practice sessions? 

ALITO: No, no, the specific question that you raised about the conflicts between the president's authority to say that a statute enacted by Congress should not be followed. But the general area of wiretapping and foreign intelligence surveillance, wiretapping... 

(CROSSTALK) 

FEINGOLD: ... the recent events that have led to this dispute... 

ALITO: And the recent events. 

FEINGOLD: ... and the possibility that it may come before you. Right, Judge? 

ALITO: That's correct. 

FEINGOLD: OK. Who was present at these practice sessions where these questions were discussed? And who gave you feedback or suggestions or made any comment whatsoever on the answers you gave? 

ALITO: Nobody at these sessions or at any of the sessions that I had has ever told me what to say in response to any question. 

FEINGOLD: I just asked -- were there no comments... 

ALITO: The comments that I've received... 

FEINGOLD: ... or no advice? 

SPECTER: Let him answer the question, Senator Feingold. 

ALITO: The advice that I've received has gone generally to familiarizing me with the format of this hearing, which is very different from the format of legal proceedings in which I've participated either as a judge or previously when I was arguing a legal issue as a lawyer. 

But nobody has told me what to say. Everything that I've said is an expression of my own ideas. 

FEINGOLD: And I don't question that, Judge. I asked you, though, whether anybody gave you any feedback or suggestions or made any comment whatsoever on the answers you gave in the practice sessions. 

ALITO: In general? Yes, they've given me feedback, mostly about the form of the question, the form of the answers. 

FEINGOLD: Have you received any other advice or suggestions directly or indirectly from anyone in the administration on how you should answer these questions? 

ALITO: Not as to the substance of the question. No, Senator. 

FEINGOLD: Only as to the style? 

ALITO: That's correct; as to the format. Not as to what I should say I think about any of these questions. Absolutely not. I've been a judge for 15 years. And I've made up my own mind during all of that time. 

FEINGOLD: Again, I'm not suggesting that. 

ALITO: I just want to make that clear 

FEINGOLD: I asking whether or not somebody talked about the possible legal bases that the president might assert with regard to the ability to do this wiretapping outside of the FISA statute. Was that kind of a discussion held? 

ALITO: Nobody actually told me the bases that the president was asserting. I found the letter that was released last week or the week before by an assistant attorney general setting out arguments relating to this on the Internet myself and printed it out. 

And I studied it to get some idea of some of the issues that might be involved here. And I looked at some other materials that legal scholars have put out on this issue. But nobody in the administration actually has briefed me on what the administration's position is with respect to this issue. 

FEINGOLD: Does it strike you as being inappropriate for members of the Department of Justice or the White House staff who are currently defending the president's actions in the NSA domestic spying program to be giving you advice on how you might handle questions about that topic in the hearing? 

ALITO: It would be very inappropriate for them to tell me what I should say. And I wouldn't have been receptive to that sort of advice. And I did not receive that kind of advice. 

FEINGOLD: Thank you, Judge. 

I want to come back to Mitchell v. Forsythe which you participated in the Solicitor General's Office. As we've already heard, that case considered the government's argument that President Nixon's attorney general, John Mitchell, should be granted absolute immunity for authorizing warrantless wiretaps. 

FEINGOLD: And you signed the government's brief, making that argument. The Supreme Court rejected the claim of absolute immunity, noting that the attorney general acting in the inherently secretive national security context has few built-in restraints. 

Justice White, writing for the court in Mitchell said, quote, "The danger that high federal officials will disregard constitutional rights in their zeal to protect national security is sufficiently real to counsel against affording such officials an absolute immunity," unquote. 

Now, that statement still has a lot of relevance today. Doesn't it? 

ALITO: Yes, it does. Absolute immunity is quite restricted under our legal system. 

But there are some high-ranking officials in all three branches of the government who do have absolute immunity just from civil damages, not from criminal liability or from impeachment or removal from office or for injunctive relief. 

They can be ordered to comply with the Constitution. But as far as civil damages are concerned... 

FEINGOLD: But when you were you at the Solicitor General's Office, you wrote this memo about the case, saying, quote, "I do not question that the attorney general should have this immunity, quote, "for authorizing warrant-less wiretap." 

Why did you not question the attorney general's absolute immunity? 

ALITO: First of all, because it was the position that our client, whom we represented in an individual capacity -- and it was his money that was at stake here -- wanted to make. 

So, we had an obligation that was somewhat akin to the obligation of a private attorney representing a client. 

Secondly, it was an argument to which the department was committed. It had been made in Kissinger v. Halpren (ph) in the Carter administration. It was repeated in Harlow v. Fitzgerald in the Reagan administration. 

In Harlow v. Fitzgerald, the Supreme Court, while rejecting the idea that cabinet officers in general should have absolute immunity from civil damages, had said something like -- and I'm not going to be able to provide an exact quote, but something like -- but the situation could well be different for people who were involved in sensitive national security matters or foreign matters. 

FEINGOLD: OK, but you said in your memo, quote, "I do not question the attorney general's absolute immunity." You did not quote it as the position of our office or, as you were just saying, this administration has argued this in the past. 

You, in effect, injected yourself into the statement. Clearly, you were expressing your personal opinion on this legal issue, were you not? 

ALITO: Senator, I actually don't think I was expressing a personal opinion. 

I was saying that in my capacity as the writer of this memo who was recommending that the argument not be made even though it was one that our client wanted to have made, I wasn't disputing the general argument to which the department was committed. 

But I thought that we should take a different approach, that we should just argue the issue of appealability. But that was not the approach that was taken. 

FEINGOLD: Let's go on to the solicitor general's brief in the Mitchell case, which you signed. 

That brief argues strongly for the need for absolute immunity, arguing that it is far more important to give the attorney general as much latitude as possible in the national security context than to, as the brief puts it, quote, "defer the occasional malevolent official," unquote, from violating the law. 

Now, I find this statement particularly troubling today in light of the current administration's warrant-less wiretapping in the name of national security. Do you agree with that statement in the brief, that broad deference is warranted even if some attorneys general may abuse their power? 

ALITO: I think the issue of the scope of the immunity that the attorney general has is now settled by Mitchell v. Forsythe. And that's the law. It was considered -- the argument was considered by the Supreme Court and they decided the question. 

There are -- judges have absolute immunity for their judicial decisions. Members of Congress and their staff have absolute immunity for things that they do that are integral to the legislative process. The president has absolute immunity from civil damages for the president's official acts. 

But absolute immunity is used very sparingly because of just the considerations that you're referring to. 

But the consideration on the other side is that people who are involved in lots of things that make other people angry, judges deciding cases, members of Congress passing legislation, presidents doing all sorts of things, would otherwise be subjected to the threat of so many political reprisals that they would be driven from office. 

And it's a policy judgment that our law has made that some people should have absolute immunity, but it's used very sparingly. 

FEINGOLD: And I find your comments interesting because, of course, the argument is often fairly made that after 9/11 we have to recognize the important role that our executive plays in protecting the American people. 

FEINGOLD: But I would also argue that it is a particularly compelling time to make sure there isn't undue deference given the types of powers that the executive may seek to use in trying to fight this threat. 

In your class notes from a seminar you gave at Pepperdine Law School on civil liberties in times of emergency, you repeatedly raise the question of whether the judiciary has the capability to review certain types of determinations made by the executive branch in national security cases and particularly factual issues. 

And We've recently seen an example of a court evidently expressing its frustration in a national security case when the facts presented to it by the executive, which it had accepted, apparently did not hold up. 

And of course I'm talking about the 4th Circuit's serious concern it hadn't been told that Jose Padilla needed to be held militarily as an enemy combatant because he had plotted to use a dirty bomb in the United States and then finding out that three and a half years later the Justice Department wanted to transfer him to law enforcement authorities to stand trial for entirely different and much less serious crimes. 

In Padilla, the 4th Circuit was originally willing to defer to the executive's assertion that it needed to hold Padilla militarily, but was quite upset -- and justifiably, I think -- to find out that it might not have deserved such deference. And I'm not going it ask you about that case because I know that case is coming before the Supreme Court. 

But I do want you to say something about the role of the judiciary in evaluating the facts presented to it in national security cases by the executive branch. 

How does a court decide whether to rely on the facts presented to it by the executive in a national security case? 

ALITO: What I was doing in that talk at Pepperdine was framing that question. And it's a lot easier to frame the question and to ask students to think about it and give me their reactions than it is to answer it. 

We've had examples of instance in which the judiciary in the past has had to confront this issue of reviewing factual presentations of the executive in times of national crisis. And there have been instances in which the judiciary has accepted -- and I'm thinking of the Japanese internment cases -- has accepted, which were one of the great constitutional tragedies that our country has experienced -- has accepted factual presentations by the political -- by the executive branch that turned out not to be true and from my reading of what went on were not believed to be true by some high-ranking executive officials at the time. 

But there is the problem of judicial fact-finding, which I was talking about earlier, and the context of things that may be taking place on the battlefield, for example, or things that are taking place in wartime probably are more difficult for the judiciary to evaluate than other factual questions. 

ALITO: So that's the dilemma. And I can't say that I can provide a clear answer to it. 

FEINGOLD: I do appreciate your reference in the Koramatsu to a case and the problem there and how this is going to become an even more serious issue. 

I'm going to switch to something else, the matter of the Vanguard case and the recusal. That has been characterized today as a nonissue. One senator said it's a joke. It's ridiculous. Another one said it's absurd, just plain absurd. And another -- same senator said it was a blatant tactic to torpedo your nomination. 

Well, Judge, I was the senator that asked Judge Roberts very searching questions about whether or not he should have recused himself in the Hamdan case. And I'm sure he didn't enjoy it. I didn't particularly enjoy asking the questions. But in the end, I voted for him. 

So let me just say to my colleagues, I reject this idea that when we come here to do our job of examining a nominee, that asking questions about an ethical issue is somehow a political game or an attempt to torpedo a nomination. 

This idea of insulating yourselves and insulating the nominee before we've even asked questions about a subject really is not conducive to the kind of process that this chairman and this ranking member have made possible on the first nomination and this one as well. 

So I think this is our job. And I ask you these questions in the spirit. 

And I might add that although my time is limited that, when you hear the actual facts of it, whatever conclusion we draw, it's certainly not a trivial matter. It's something that I think we ought to cover. 

So let me begin by following up on Senator Kennedy's question regarding the promise you made to the committee. In 1990, in your Senate questionnaire at the time of your nomination to the 3rd Circuit, you were asked how would you handle potential conflicts of interest. 

You told the committee that you did not believe conflicts of interest relating to your financial interests were likely to arise. Nevertheless, you wrote, quote, "I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney or the First Federal Savings & Loan of Rochester, New York," unquote. 

You also wrote that you would disqualify yourself from any case involving your sister's law firm and from any case in which you participated or that was under your supervision in the United States attorney's office. 

Now, whether or not such recusals are required under the federal recusal law, your statement to the commitment was clear, unambiguous and not time limited. And I think for that reason alone, it is more than legitimate to ask some questions in front of this committee about this. 

This morning, Senator Hatch read from a letter from the ABA, apparently received yesterday, although we did not see it until today. That letter talked about what you told the ABA when asked about Vanguard and the other ethics issues. 

You also answered a number of questions from Senator Hatch about the case. 

But your responses to both the ABA, as far as we can tell from the letter, and Senator Hatch did not say anything at all about your promise to this committee. 

Instead, you responded by saying that you didn't notice the recusal issue because you did not get so-called clearance sheets in this case, because it was a pro se case and that you didn't, quote, "focus on the issue of recusal." 

You also didn't mention something that the clerk of your court told us in a letter, that all judges have standing recusal lists that all cases, all cases, both pro se cases and cases where the parties are represented by counsel, are checked against before they are sent to judges. 

FEINGOLD: So my first question is this: After you were sworn in as judge, did you notify the court of your commitments to the Senate and request that the Vanguard companies, Smith Barney and First Federal Savings & Loan be included on your standing list of priorities whose involvement in a case would require your recusal? 

ALITO: Senator, I don't have a copy of the initial computer list, so I can't answer that question. 

At some point, Vanguard -- the computer lists that are available from, I think, 1992 and 1993 do not have Vanguard on it and I don't know why that is so. 

FEINGOLD: So you don't recall whether you notified them or not? 

ALITO: I do not. No. 

FEINGOLD: OK. 

Judge, we know you notified the clerk in 1990 that the U.S. attorney's office and your sister's law firm should be on your standing recusal list because you recused yourself from a number of such cases in the first several years you were on the bench. 

And we also finally received additional documents just yesterday from the court. These documents show that the Vanguard companies and the other financial entities you listed in 1990 were not on your standing recusal list, which you approved in 1993, 1994, 1995 or 1996. 

Do you remember removing them from your standing recusal list or is it fair to assume -- or is it your belief that they were never put on your recusal list? 

ALITO: Senator, I don't know. 

I don't know whether they were removed. I don't think I ever told the clerk's office: Take them off. It may be that at some point I submitted a new list and they were not on the list. 

I do think it's important to keep in mind that this list is just an aid for the judge. This is not a comprehensive list of everything that will cause a judge to recuse. 

FEINGOLD: I understand. I just want to get the facts down. 

So to be clear on the facts, there's no evidence that you requested that Vanguard appear on your standing recusal list before 2003 when you informed the clerk that Vanguard and apparently also Smith Barney should be added, and you don't have any independent recollection of adding them to the list before then either. That's correct, isn't it? 

ALITO: That's correct. 

FEINGOLD: You explained to the ABA that the problem in these cases was that the conflict screen system was not working in these cases. And you told Senator Kennedy and Senator Hatch this morning that there were some oversights in this case. 

And you wrote in a November 10th letter to Senator Specter: Due to an oversight it did not occur to you that Vanguard's status might call for your recusal. But it seems that the problem was not that the screening program was not working or that there was a computer glitch, as you and the White House originally suggested, but either that Vanguard was not on your recusal list and you didn't remember your promise or that you did not recognize that Vanguard was a party in the case. Now, isn't that a fair characterization? 

ALITO: Well, there was an oversight. And the oversight was on my part in not focusing on the issue of recusal when I first received the case. 

FEINGOLD: So there wasn't -- so the problem really -- you can admit now, can't you, that this was not a computer glitch or a failure of the screening system? You're really saying something very different at this point. 

ALITO: I'm not saying something different as to the screening system. The screening system was exactly what I described this morning. 

ALITO: And I described that to the ABA. 

FEINGOLD: But you don't think it was a computer glitch anymore, do you? 

ALITO: It was not a computer glitch. And if I could just explain, the origin of that was that, when I was down here shortly after the president announced his intention to nominate me, I started to receive questions about this Vanguard issue. 

And I was receiving information from our clerk's office. And, based on the information that I received, it was my impression that there had been a computer glitch. And that was the origin of that statement. And that information that I... 

FEINGOLD: Let me ask you this in my last few seconds. When you wrote to Judge Greca (ph) indicating that would you recuse yourself from the Monga v. Ottenberg case, why did you feel the need to argue that you weren't in fact, required to do so? 

Why not just admit you made a mistake, agree to recuse and move on? Why didn't you just do that when the issue was raised here, instead of coming up with these different explanations that, in some cases, I think, have become unconvincing? 

ALITO: Well, Senator, when the recusal motion came in, I was disturbed by it and I wanted to see what the code of conduct exactly required in this context. 

Twelve years had gone by. And no Vanguard case had come up and I hadn't had an occasion to look at this issue. And when I looked at it -- and the recusal motion was very harsh and it accused me of unethical conduct. And I took it seriously. And I wanted to see what the code required. 

And I researched it and it was my conclusion that I was not required by the code to recuse. 

But then I went on and said: But I still don't want to participate in this case. And I would like to have the initial decision vacated and make sure that Ms. Maharaj had an entirely new appeal. And that's what I asked for and that's what was done. 

FEINGOLD: Thank you, Judge. 

HATCH: Mr. Chairman? 

SPECTER: Senator Hatch? 

HATCH: On this particular issue, could I just take two minutes out of my next round? 

SPECTER: If you want to comment, you may. And Senator Feingold should have an opportunity to respond. 

HATCH: Sure. 

On the form that you filled out, the question was: "Explain how you will resolve any potential conflict of interest, including the procedure you will follow in determining these areas of concern. Identify the categories of litigation and financial arrangements that are likely to present potential conflicts of interest during your initial service in the position to which you have been nominated." 

HATCH: Now, this case arose 12 years later, didn't it? 

ALITO: Yes, it did, Senator. 

HATCH: That's hardly your initial service. To be held to that type of a standard, especially in a case that every ethics professor I know of says you didn't do anything wrong in, seems to me is going a little bit beyond the pale here. And it is overblown. And, frankly, I think you got to read the whole thing. You're a good lawyer and you agreed to do it, but it was during your initial service. 

Now, I guess you could interpret initial service to be a year or two or three years. But 12 years? I don't think so. 

SPECTER: Senator Feingold... 

(CROSSTALK) 

FEINGOLD: Yes. I mean, the fact is the nominee continues to have the holdings in Vanguard. They've appreciated in value. Time hasn't changed that. I think the judge here was at least trying to suggest there might have been some mistake made here, and instead we're getting sort of after-the-fact justifications that put some kind of a time limit on the promise he made to this committee. And there was no time limit on the promise that was made to the committee. 

HATCH: I still have 30 seconds left. 

Judge, number one, you've researched it and you didn't have to recuse yourself. You concluded that. 

ALITO: Yes, I did. 

HATCH: Number two, these ethics professors have concluded that. right? 

ALITO: That's right. 

HATCH: Number three, you have tried to comport with the highest standards of ethics during your whole 15 years on the bench. Right? 

ALITO: I have tried to do that... 

HATCH: Number four, I believe we'll have judges from that court who will say that you have. 

SPECTER: Senator Feingold? 

FEINGOLD: Mr. Chairman, I'm curious if this isn't a situation where he felt the need to recuse himself, why he would have put Vanguard on the list as something he should recuse himself from after the fact. 

HATCH: Because he was mistaken. That's why. 

SPECTER: All right, we're going move on now. I think that this slight exchange is permissible as an exception to our general rules. It livens up the afternoon. 

(LAUGHTER) 

HATCH: I want my two minutes back. 

SPECTER: Anything at about 5:30 in the afternoon is welcome. 

LEAHY: The chairman was disturbed by my snoring over here. 

(LAUGHTER) 

Continue on to Part III. To read Part I of the transcript, click here.

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

Courtesy FDCH e-Media
Tuesday, January 10, 2006; 7:11 PM

The transcript picks up with Sen. Graham's testimony.

SPECTER: Senator Graham? 

 
GRAHAM: Hello? 

(LAUGHTER) 

ALITO: Hello, Senator. 

GRAHAM: That was an interesting exchange. 

GRAHAM: I guess there's no rule against beating a dead horse, or we'd all have quit a long time ago. 

(LAUGHTER) 

So in the next 30 minutes, I'm going to ask you the same questions you've been asked for a whole day. 

(LAUGHTER) 

And I hope you'll understand if any us come before a court and we can't remember Abramoff, you will tend to believe us. 

(LAUGHTER) 

(CROSSTALK) 

GRAHAM: Now I know why they give you a lifetime appointment for doing this. I was skeptical before, but I think once is enough in a lifetime. 

For what it's worth, I think you've done a great job. You've been very forthcoming. You've seldom used, "I may have to decide that." You've answered a lot of questions. 

And I particularly enjoyed Senator Feingold's questions about the executive power. And I will pick up on that. 

Number one, from a personal point of view, do you believe the attacks on 9/11 against our nation were a crime or an act of war? 

ALITO: That's a hard question to answer. 

GRAHAM: Good. 

ALITO: That's a way of buying 30 seconds while I think about the answer. 

Senator, I think that what I think personally about this is really not -- it's not something that would be -- that would inform anything that I would have to do as a judge. 

GRAHAM: Well, Judge, I guess I disagree. Because I think we're at war. And the law of armed conflict in a war time environment is different than dealing with domestic criminal enterprises. Do you agree with that? 

ALITO: It certainly is. 

GRAHAM: We have laws on the book that protects us, the Fourth Amendment included, from our own law enforcement agencies coming against our own citizens. But we also have laws on the books during a time of war to protect our country from being infiltrated by foreign powers and bodies who wish to do harm to us. That's a totally different legal concept. Is that correct? 

ALITO: I'm reluctant to get into this because I think things like act of war can well have particular legal meanings in particular context, under the Constitution... 

GRAHAM: Do you doubt that our nation has been in an armed conflict with terrorist organizations since 9/11, that we've been in an undeclared state of war? 

ALITO: In a lay sense, certainly, we've been in a conflict with terrorist organizations. I'm just concerned that, in the law, all of these phrases can have particular meanings that are defined by the cases and are... 

GRAHAM: That's very important. And let's have a continuing legal education seminar here about the law of armed conflict in the Hamdi case. 

The Hamdi case is precedent, is that correct? 

ALITO: It certainly is. 

GRAHAM: It's a decision of the Supreme Court. And it tells us at least two to three things. Number one, it tells us something that I find reassuring; that the Bill of Rights, the Constitution, survive even in a time of war. 

ALITO: That is certainly true. 

GRAHAM: So, there's a holding in that case that I want to associate myself with, and I think Senator Feingold does; that, even during a time of war when your values are threatened by an enemy who does not adhere to those values, they will not be threatened by your government unless there's a good reason. Do you agree with that, sir? 

ALITO: Senator, I agree that the constitution was meant to deal with all of the contingencies that our country was going to face. 

I think the framers hoped that we would not get involved in many wars but they were students of history and I'm sure they realized that there would be wars. They provided for war powers for the president and for Congress. And the structure is meant to apply both in peace and in war. 

GRAHAM: And you said in your previous testimony that no political figure in this country is above the law, even in a time of war. 

ALITO: That is correct. 

GRAHAM: OK. There's another aspect of the Hamdi case that no one's picked up on, but I will read to you: "In light of these principles, it is of no moment that the authorization to use military force does not use specific language of detention because detention to prevent a combatant's return to the battlefield is a fundamental instant of waging war." 

In permitting the use of necessary and appropriate force, Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. 

GRAHAM: And those circumstances were a person alleged by the executive branch to be an enemy combatant. And one of the principles we found from the Hamdi case that because we are, in my opinion, at war and Congress has authorized the president to use force against our enemies, the executive branch, according to the Hamdi case, inherent to his power of being commander in chief, can detain people who have been caught on the battlefield. 

Does that make sense to you? Do you agree that's a principle of the Hamdi case? 

ALITO: That is a principle of the Hamdi case. 

GRAHAM: And it makes perfect sense. Because if we catch someone in Afghanistan or Iraq or any other place in the world who is committing acts of violence against our troops or our forces, or we catch people here in the United States who have infiltrated our country for the purpose of sabotaging our nation, there is no requirement in the law to catch and release these people. Is there? 

ALITO: Well, Hamdi speaks to the situation of an individual who was caught on the battlefield... 

GRAHAM: In the history of our nation, when we captured German and Japanese prisoners, was there ever a legal requirement anybody advanced that after a specific period of time you have to let them go? 

ALITO: It's my understanding that the prisoners of war who were taken in World War II were held until the conflict was over. 

GRAHAM: It would be an absurd conclusion for a court or anyone else to tell the executive branch that if you caught somebody legitimately engaged in hostile activities against the United States that you have to let them go and go back and fight us again. That makes no sense; does it? 

ALITO: Well, I explained what my understanding is about how this matter of holding prisoners was handled in prior wars. This issue was addressed in Hamdi, or it was discussed in Hamdi in the context... 

GRAHAM: In the Padilla case they held an American citizen who was engaged in hostile activities against the United States, allegedly, as an enemy combatant. 

GRAHAM: And the 4th Circuit said the president, during a time of hostility, has the ability to do that. 

Do you agree that that's a part of our jurisprudence? 

ALITO: That was -- the holding in Padilla? 

GRAHAM: Yes. 

ALITO: Yes. That was the holding of the lower court -- of Padilla, yes. 

GRAHAM: The point I'm trying to make is that when you're engaged in hostilities there are some things that we assume the president will do. 

If we don't kill the enemy, we capture the enemy. The president as the commander in chief will make sure they don't go back to the battle. Number two, that if we catch someone and there's a question to their status whether or not you're a prisoner of war in the Geneva Convention, are you an enemy combatant, who traditionally in our constitutional democracy determines whether or not the status of a person engaged in hostilities? 

ALITO: Well, Padilla -- I'm sorry, Hamdi said that a person who was being detained, an unlawful person who's asserted to be an unlawful combatant and who is being detained has due process rights. And the issue of the type of tribunal -- and they explained to some degree how that would be handled. 

But the identity of the particular tribunal that would be required to adjudicate that was not an issue that was decided in Hamdi or any of the other cases. 

GRAHAM: Can you show me an example in American jurisprudence where the question of status, whether a person was a lawful combatant or an unlawful combatant, was decided by a court and not the military? 

ALITO: I can't think of an example. I can't say that I am able to survey the whole history of this issue, but I... 

(CROSSTALK) 

GRAHAM: Can you show me in a case in American jurisprudence where an enemy prisoner held by our military was allowed to bring a lawsuit against our own military regarding their detention? 

ALITO: I am not aware of such a case. 

GRAHAM: Is there a constitutional right for a foreign, noncitizen enemy prisoner to have access to our courts to sue regarding their condition of the confinement under our Constitution? 

ALITO: Well, I'm not aware of a precedent that addresses the issue. 

GRAHAM: Do you know of any case where an enemy prisoner of war brought a habeas petition in World War II objecting to be their confinement to our federal judiciary? 

ALITO: There may have been a lower court case. I'm trying to remember the exact status of the individual. 

GRAHAM: Let me help you. There were two cases. One of them involved six saboteurs, the in re Quirin case. Would you agree with me that that case stood for the proposition that in a time of war or declared hostilities an illegal combatant, even though they may be an American citizen, the proper forum for them to be tried in is a military tribunal and they're not entitled to a jury trial as an American citizen in a non-wartime environment? 

ALITO: Well, those were a number of German saboteurs who landed by submarine in the United States. And they were taken into custody. And they were tried before a military tribunal. 

And the case went up to the Supreme Court. The Supreme Court sustained their being tried before a military tribunal. At least one of them claimed to be an American citizen. And most of them, I think all but one or two, actually were executed. 

GRAHAM: And our Supreme Court said that is the proper forum during a war-time environment to try people who were engaged in a legal combat activities against our country. Is that correct? 

ALITO: They sustained what was done under the circumstances. 

GRAHAM: That would be a precedent then, wouldn't it? 

ALITO: It is a precedent. Yes. 

GRAHAM: OK. 

There was a case involving six Germans, soldiers, captured in Japan and transferred to Germany, and they brought a habeas petition to be released in the -- I can't remember the ... 

ALITO: Eisentrager. 

GRAHAM: You know it. Tell me what the court decided there. 

ALITO: They were, as I recall, they were Germans who were found in China... 

GRAHAM: China. You're right 

ALITO: ... assisting the Japanese after termination of the war with Germany. And they were unsuccessful in their habeas petition. That was interpreted, prior to the Supreme Court's decision a couple of years ago, to mean that there was a lack of habeas jurisdiction over them because they were being held in territory that was not U.S. territory. 

GRAHAM: For those who are watching who are not lawyers, generally speaking, in all of the wars that we've been involved in we don't let the people trying to kill us sue us. Right? And we're not going to let them go at an arbitrary time period if we think they're still dangerous because we don't want to go have to shoot at them again or let them shoot at us again. 

Is that a good summary of the law of armed conflict? 

ALITO: I don't know whether I'd put it quite that broadly, Senator. 

(LAUGHTER) 

The precedent that you -- the Johnson v. Eisentrager, of course, has been substantially modified, if not overruled. Ex Parte Quirin, of course, is still a precedent. 

There was a lower precedent involving someone who fought with the Italian army. And I can't remember the exact name of it. And that was the case that I thought you were referring to when you first framed the question. 

But those are the precedents in the area. Then, if you go back to the Civil War, there's Ex Parte Milligan and a few others. 

GRAHAM: We don't have to go back that far. 

(LAUGHTER) 

ALITO: Well, in this area... 

GRAHAM: Well... 

ALITO: ... it's actually instructive to do it. 

But in Hamdi the court addressed this question of how long the detention should take place. And they said -- because they were responding to the argument that this situation is not like the wars of the past which had a more or less fixed -- it was not anticipated that they would go on for a generation. And they said: We'll get to that if it develops that way. 

GRAHAM: Who is better able to determine if an enemy combatant properly held has ongoing intelligence value to our country? Is it the military or a judge? 

ALITO: On intelligence matters I would think that is an issue -- that is an area where the judiciary doesn't have expertise. But we do get into this issue I was discussing with Senator Feingold about the degree to which the balance between the judiciary's performing its function in cases involving individual rights and its desire not to intrude into areas where it lacks expertise, particularly in times of war and national crisis. 

GRAHAM: So, having said that, if we have a decision to make as a country when to let someone go who's an enemy combatant, I guess we've got two choices. 

We can have court cases or we can allow the military to make a determination if that person still presents a threat to the United States and whether or not that person has an intelligence value by further confinement. 

Do you feel the courts possess the capabilities and the confidence to make those two decisions better than the military? 

ALITO: The courts do not have expertise in foreign affairs or in military affairs. And they certainly should recognize that. And that is one powerful consideration in addressing legal issues that may come up in this context. 

But there is the other powerful consideration that it is the responsibility of the courts to protect individual rights in cases that are properly before the court, cases where they have jurisdiction in one way or another, cases that are fit for judicial resolution. 

GRAHAM: I totally understand that. But our courts have not, by tradition, gotten involved in running military jails during a time of war. 

I can't think of one time where a prisoner of war housed in the United States during World War II, a German Nazi or a Japanese prisoner, was able to go and sue our own troops about their confinement. 

I think there's a reason there's none of those cases. It would lead to chaos. Now, when it comes to treating detainees and how to treat them, I think the Congress has a big role to play. And I think that the courts have a big role to play. Are you familiar with the Geneva Convention? 

ALITO: I have some familiarity with it. I'm... 

GRAHAM: Do you believe it's been good for our country to be a signatory to that convention? 

ALITO: I think it has. But that's not really my area of authority. 

ALITO: That's Congress' area of authority. 

GRAHAM: Well, just as an American citizen, are you proud of the fact that your country has signed up the Geneva Convention and that we have laid out a system of how we treat people who fall into our hands and how we'll engage in war? 

ALITO: I think the Geneva Convention -- and I'm not an expert on the Geneva Conventions -- but I think they express some very deep values of the American people. And we've been a signatory of them for some time. And I think that... 

GRAHAM: Now, let's go back to the legal application of the Geneva Convention. 

If someone was captured by an American force and detained either at home or abroad, would the Geneva Convention give that detainee a private cause of action against the United States government? 

ALITO: Well, that's an issue I believe in the Hamdan case, which is an actual case that's before the Supreme Court. And it goes to the question of whether a treaty is self-executing or not. Some treaties are self-executing... 

GRAHAM: Has there ever been an occasion in all the wars we fought where the Geneva Convention was involved whether the courts treated the Geneva Convention as a private cause of action to bring a lawsuit against our own troops? 

ALITO: I'm not familiar with such a case. But I can't say whether there might be some case or not. 

GRAHAM: Now, when it comes to what authority the executive has during a time of war, we know the Supreme Court has said it's implicit from the force resolution that you can detain people captured on the battlefield. Hamdi stands for that proposition. Is that correct? 

ALITO: That's what was involved in Hamdi. 

GRAHAM: OK. The problem that Senator Feingold has and I have and some of the rest of us have is does that force resolution, does it have the legal effect of creating an exception to the FISA Court? 

And I know that may come before you, but let's talk about generally how the law works. 

You say that the president has to follow every statute on the books unless the statute allows an exception for the president. Is that a fair statement? Just being president, you can't set aside the law. 

ALITO: The president has to follow the law, and that means the Constitution and the laws that are enacted consistent with the Constitution. 

GRAHAM: There's a statute that we have on the books against torture. Are you familiar with that statute? 

ALITO: Convention against torture, I am. Well, the statutes implementing the convention against torture. 

GRAHAM: And the statute provides the death penalty for somebody who violates the conventions as a possible punishment. 

ALITO: That's right. 

If death results, the death penalty is available. 

GRAHAM: So this idea that Senator McCain somehow banned torture is not quite right. The convention on torture and the statute that we have implementing that convention were on the books long before this year. 

GRAHAM: Is that correct? 

ALITO: Yes, they were. 

GRAHAM: Do you believe that any president, because we're at war, could say, the statute on torture gets in the way of my ability to defend the United States; therefore I don't have to comply with it? 

ALITO: The president has to comply with the Constitution and the laws of the United States that are enacted consistent with the Constitution. That is the principle. 

The president is not above the Constitution and the laws. Now, there are issues about the interpretation of the laws and the interpretation of the Constitution. 

GRAHAM: Are you a strict constructionist? 

ALITO: I think it depends on what you mean by that phrase. And if you... 

GRAHAM: Well, let's forget that. We'll never get to the end of that. 

(LAUGHTER) 

Have you heard the term used? 

ALITO: I have heard the term used. 

GRAHAM: Is it fair to say that, when it's used by politicians, people like me, that we're trying to tell the public we want a judge who looks at things very narrowly, that doesn't make a bunch of stuff up? 

Is that a fair understanding of what a strict constructionist may be in the political world? 

ALITO: Well, if a strict constructionist is a judge who doesn't make things up, than I'm a strict constructionist. 

(LAUGHTER) 

GRAHAM: There you go. 

ALITO: I agree with that, Senator. 

(LAUGHTER) 

GRAHAM: Now, if there's a force resolution that Congress passes to allow any president to engage in military activity against someone trying to do us harm and the force resolution says, "The president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines, planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001" -- or just make it generic -- if someone argued that that declaration by Congress was a blanket exemption to the warrant requirement under FISA, would that be a product of strict constructionist legal reasoning? 

ALITO: I think that a strict constructionist as you understand it would engage in a certain process in evaluating that question. And a strict constructionist, a person who interprets the law -- that's how I would put it -- a person who interprets the law would look at the language of the authorization for the use of military force and legislative history that was informative, maybe past practices. Were there prior enactments that are analogous to that? What was the understanding of those? And a host of other considerations that might go into the interpretive process. 

GRAHAM: I guess what I'm saying, Judge, is I can understand why the court ruled that the president has within his authority to detain people on the battlefield under this force resolution. That makes sense. I understand why the president believes he has the ability to surveil the enemy at a time of war. 

And the idea that our president or this administration took the law in their own hands and ignored precedent of other presidents or case law and just tried to make a power grab, I don't agree with. 

But this is really not about you, so you don't have to listen. I'm talking to other people right now. 

(LAUGHTER) 

The point I'm trying to make -- the point I'm trying to make is what Justice Jackson made, is that, when it comes to issues like this, when we surveil our enemy and we've cross the our own borders and we have information about our own people, we need, in my opinion, Judge, to have the president at the strongest. And that would be when Congress, through collaboration with the president, comes up with a method of dealing with that situation. 

And then it could be very dangerous in the long run if we over- interpret war resolutions. Because I've got a problem with that. And I believe that if we don't watch it and we over-interpret these resolutions, that we will have a chilling effect for the next president. 

The next president who wants to use force to protect us in a justifiable manner may be less likely to get that resolution approved if we go too far. 

And Judge, you're likely to rule on these issues. 

GRAHAM: And my hope is, before you rule, that we all sit down between the executive and the legislative and we talk about this, because, as you said before, our nation, not only our legal system, is strongest when we work together. 

Executive power: The Constitution allows the president to nominate judges. If Congress tried to change that by statute and say that we would like to pick the judges, what would happen, hypothetically? 

ALITO: I have a certain amount of self-interest in the answer to that question. 

GRAHAM: Yes, I thought you might, yes. 

Clearly, clearly, the statute would fall under the Constitution. A veto is not reviewable by courts because that's a basically political decision. 

Under the Constitution, what's the vote requirement to get confirmed to the Supreme Court? 

ALITO: It's a majority. 

GRAHAM: Hypothetically speaking, what if the Senate passed a statute or had a rule that said you can't get a vote to be on the Supreme Court unless you get 60 votes? How does that sit with you? 

ALITO: Speaking in my personal capacity or my judicial capacity? 

GRAHAM: Your judicial capacity. 

ALITO: Senator, I just don't think I should answer questions like -- constitutional questions like that. 

GRAHAM: What if the Senate said during impeachment that we don't want a two-thirds vote of the Senate; we want a majority vote? Would the Senate's action fall under the Constitution? 

ALITO: There are certain questions that seem perfectly clear. And I guess there's no harm in answering... 

GRAHAM: Is there any doubt in your mind the Constitution requires a majority vote to be on the Supreme Court or any other federal judicial office? 

ALITO: You know what? I remember this phrase from law school... 

GRAHAM: Is that a super-duper precedent? 

(LAUGHTER) 

ALITO: I think it's what we call in law school the slippery slope, and if you start answering the easy questions, you're going to be sliding down the ski run into the hard questions. And that's what I'm not too happy to do. 

GRAHAM: That's what I tried to get to you do and I'm glad you didn't do it. 

(LAUGHTER) 

The bottom line through this exercise is: You've got a job. I've got a job. And what disturbs me a bit is that we're beginning to hold the lawyer responsible for the client. 

And in my remaining time here, what damage could be done to the legal profession or judiciary if people in my profession start holding your clients' position against the advocate? 

ALITO: I think it's been traditionally recognized that lawyers have an obligation to their clients. That's how our legal system works. Some lawyers have private clients. Some lawyers work for government agencies and the lawyer-client relationship there is not exactly the same. But still there is a lawyer-client relationship. 

And I think our whole system is based on the idea that justice is best served... 

GRAHAM: If you were an attorney general representing a state that passed a ban on partial-birth abortion, would it be fair to that attorney general if they came before this committee to hold that against them if you disagreed with them on the subject matter? 

ALITO: I think that attorneys general -- I can speak to the issue of the attorney general of the United States because I know there's a statute and there's an understanding about what the attorney general of the United States will do when an act of Congress is called into question. And the obligation of the attorney general is to defend the constitutionality of the act of Congress... 

(CROSSTALK) 

GRAHAM: Lawyers' obligation is to defend their clients' interest. Is that an accurate statement of what a lawyer is supposed to do? 

ALITO: It certainly is, yes. 

GRAHAM: No matter where that client is popular or not or the position is popular or not. 

GRAHAM: Is that correct? 

ALITO: Consistent with ethical obligations and professional responsibility, yes, indeed. 

GRAHAM: What's this process been like for you and your family? In a short period of time, could you tell us how to improve it? 

ALITO: Well, it's been a combination -- at times it's been a thrill and at times it's been extremely disorienting. I've spent the last 15 years as a judge on the court of appeals. And you probably could not think of a more cloistered existence than a judge on the court of appeals. 

Most of the time nobody other than the parties pays attention to what we do. When an article is written in the paper about one of our decisions, it's a federal appeals court in Philadelphia or in whatever city. 

And this has been a strange process for me. I made some reference to that yesterday. 

But I understand the reason for it. And I am reluctant in my current capacity as a nominee to offer any suggestions about the process. I think that you're carrying out your responsibility. I spoke about the fact that different people under the Constitution have different obligations. And you have the advice and consent function, Congress -- the Senate does. And I think it's for the Senate to decide what it should do in this area. 

SPECTER: Thank you, Senator Graham. 

Senator Schumer? 

SCHUMER: Thank you, Senator Specter. 

And I want to thank you, Judge Alito. It has been a long day. 

Judge Alito, in 1985, you wrote that the Constitution -- these are your words -- does not protect a right to an abortion. You said to Senator Specter a long time ago, I think it was about 9:30 this morning, 9:45, that those words accurately reflected your view at the time. 

Now let me ask you: Do they accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it? 

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

ALITO: Senator, it was an accurate statement of my views at the time. That was in 1985. 

And I made it from my vantage point as an attorney in the Solicitor General's Office, but it was an expression of what I thought at that time. 

If the issue were to come before me as a judge, if I'm confirmed and if this issue were to come up, the first question that would have to be addressed is the question of stare decisis, which I've discussed earlier and it's a very important doctrine. And that was the starting point and the ending point of the joint opinion in Casey. 

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

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

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

Regardless of case law, in 1985, you stated -- you stated it proudly, unequivocally, without exception -- that the Constitution does not protect a right to an abortion. 

Do you believe that now? 

ALITO: Senator... 

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

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

ALITO: Answer to the question is that I would address that issue in accordance with the judicial process as I understand it and as I have practiced it. 

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

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

I'm asking you -- you stated what you believe the Constitution contained. You didn't say the Constitution as interpreted by this or that. You didn't say the constitution with this exception or that exception. 

It was a statement you made directly. You made it proudly. You said you're particularly proud of that personal belief that you had. You still believe it. 

ALITO: And, Senator, I would make up my mind on that question if I got to it, if I got past the issue of stare decisis after going through the whole process that I have described. 

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

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

I'm asking you -- and not about the process you've used -- I'm asking you about your view of the Constitution because, as we all know, and we're going to talk about stare decisis in a few minutes, that if somebody believes, a judge, especially a Supreme Court justice, that something is unconstitutional, even though stare decisis is on the books, governs the way you are and there's precedent on the books for decades, it's still important to know your view of what the Constitution contains. 

And let me just say, a few hours ago, in this same memo -- I can't remember who asked the question -- but you backed off one of the statements you had written. You said it was inapt, which taught me something. I didn't know that there was a word that was inapt. 

But you said that it was inapt to have written that the elected branches are supreme. So, you discussed your view on that issue without reference to case law because there was no reference to case law when you wrote it. There was no reference to case law when you wrote this. 

Can you tell us your view just one more time, your view about the Constitution not protecting the right to an abortion, which you have talked about before? And you said you personally, proudly held that view. Can you? 

ALITO: The question about the statement about the supremacy of the elected branches of government went to my understanding of the constitutional structure of our country. 

And so certainly that's a subject that it is proper for me to talk about. 

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

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

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

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

ALITO: The Constitution contains the due process clause of the Fifth Amendment and the 14th Amendment. It provides protection for liberty. It provides substantive protection. And the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections. 

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

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

SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera? 

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution. 

SCHUMER: Well, OK. I know you're not going to answer the question. I didn't expect really that you would, although I think it would be important that you would. I think it's part of your obligation to us that you do, particularly that you stated it once before so any idea that you're approaching this totally fresh without any inclination or bias goes by the way side. 

But I do have to tell you, Judge, you're refusal I find troubling. And it's sort as if I asked a friend of mine 20 years ago -- a friend of mine 20 years ago said to me, he said, you know, I really can't stand my mother-in-law. And a few weeks ago I saw him and I said, "Do you still hate your mother-in-law?" 

He said, "Well, I'm now married to her daughter for 21 years, not one year." 

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

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

What do you think I'd think? 

ALITO: Senator, I think... 

SCHUMER: Let me just move on. 

You have a very nice mother-in-law. I see her right here. And she seems like a very nice person. 

(LAUGHTER) 

OK. 

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

SCHUMER: Good. 

(LAUGHTER) 

I'm glad you haven't. 

ALITO: I can answer that question. 

SCHUMER: She seems nice. 

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

SCHUMER: OK. 

Now you've tried to reassure us that stare decisis means a great deal to you. You point out that prior Supreme Court precedents, like Roe, will stand because of the principle. 

While you're on the 3rd Circuit, of course, you can't overrule precedents of the Supreme Court, but when you're on the Supreme Court, you have a little bit more flexibility. 

I just want to ask you this. Stare decisis is not an immutable principle, right? You said that before in reference to Senator Feinstein. When Judge Roberts was here, he said it was discretionary. So it's not immutable. Is that right? You've told us it's not an inexorable command. It doesn't require you to follow the precedent. 

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

SCHUMER: But they have found them. I think you went over this. I can't recall if it was Senator Kohl or Senator Feinstein, but you went through some cases. 

In recent years the court has overruled various cases in a rather short amount of time. You mentioned I think it was National League of Cities about fair labor standards, and it was overruled just nine years later by Garcia. Stanford v. Kentucky was overruled by Roper v. Simmons. Bowers v. Hardwick was overruled by Lawrence v. Texas. And of course, Brown v. Board was over ruled by Plessy. 

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

So the only point I'm making is that despite stare decisis, it doesn't mean a Supreme Court justice who strongly believes in stare decisis won't ever overrule a case. Is that correct? You can give me a yes or no. 

ALITO: Yes. 

SCHUMER: Now let's try this another way. 

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

ALITO: I agree with the statement, yes. 

SCHUMER: Let me show you who said that statement. It was Justice Thomas. Justice Thomas came before us and stated that, and yet when he got on the Supreme Court he voted to overrule or expressed a desire to overrule a whole lot of cases, including some very important ones on the court. 

Here are some quotes. "Casey must be overruled." "Buckley v. Valeo should be overruled." "Bachus (ph)" -- just last year -- "should be overruled." 

And as you can see, it's a very large number of cases. And these aren't all of them. In fact, Justice Thomas said that a 1789 unanimous case by the Supreme Court, Calder v. Bull, which no one talked about for centuries, should be overruled. 

So what do you think of Justice Thomas' theory of stare decisis and how he applies it? 

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

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

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

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

Justice Scalia said Justice Thomas, quote, "doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, 'Let's get it right.'" 

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

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

And I'm not saying Justice Thomas was disingenuous with the committee when he was here. I'm just saying that stare decisis is something of an elastic concept that different judges apply in different ways. 

So let me go to another one here. I think I've covered everything I want to do with Justice Thomas. 

Yes, here's another quote: "There is a need for stability and continuity in the law. There's a need for predictability in legal doctrine. And it's important that the law not be considered as shifting every time the personnel of the Supreme Court changes." 

That, again, sounds reasonable to me, quite a lot like what you said. 

You don't have any dispute with that statement, do you? 

ALITO: No, I don't. 

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

Now, here's what Judge Bork wrote in the National Review Online just a few weeks ago. He wrote, quote, "Overturning Roe v. Wade should be the sine quon non of a respectable jurisprudence. Many justices have made the point that what controls is the Constitution itself, not what the court has said about it in the past." 

And even before his hearing, by the way, he sort of cut back on what he said at the hearing, I guess. It may have been in different context. 

But here's a quote that he said, a year, I think, before he came before us. He said, "I don't think that in the field of constitutional law precedent is all that important." 

He said, in effect, that a justice's view of the Constitution trumps stare decisis. That's not an unrespectable view. It's probably not the majority view of justices, but it's there. 

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

And one of the things I'm concerned about here is that, what you wrote -- and I think Senator Kohl went over it a little bit -- is what you wrote about Judge Bork in 1988. 

And, by the way, this was not when you were working for someone or applying for a job. As I understand it, you were the U.S. attorney in New Jersey, well-ensconced, a very good U.S. attorney, and it was with some New Jersey news outlet. I saw the site, but I didn't know what it was. 

And you said that -- about Justice Bork: "I think he was one of the most outstanding nominees of this century. He's a man of unequaled ability" -- and here's the key point -- "understanding of constitutional history," and then, "someone who has thought deeply throughout his entire life." 

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

I find it, you know, disconcerting that you would say that he is a great nominee of the 20th century in his understanding of constitutional law and yet he so abjectly rejects stare decisis. 

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

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

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

You weren't working in the White House. You were a U.S. attorney prosecuting cases. There was no obligation for you to say what you said, right? 

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

SCHUMER: I know. 

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

ALITO: And I was asked a question about Judge Bork and I had been in the department at the time of his nomination, and I was an appointee of President Reagan and I was a supporter of the nomination. 

SCHUMER: OK. 

Let's go to the next line of questioning here. 

But again, the point being judges, justices overrule cases despite stare decisis, particularly when they think the Constitution dictates otherwise. 

And now I want to turn to your own record in the 3rd Circuit, something you mentioned yesterday and today. And when you've been on the 3rd Circuit, of course, you had to follow Supreme Court precedent and you professed a whole lot of times your desire to do that, and I'm not disputing that here. 

But it's also true that when you were on the 3rd Circuit, the more apt analogy in terms of stare decisis would be about 3rd Circuit precedents. Because if you should get on the Supreme Court, stare decisis will apply to Supreme Court decisions the way stare decisis to a 3rd Circuit judge applies to 3rd Circuit decisions. That's pretty fair, right? 

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

SCHUMER: Right. OK. 

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

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

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

(LAUGHTER) 

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

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

So I'm going to read a few. There are a whole bunch. But in Dia v. Ashcroft -- they're all on this chart, I guess. There are too many, so the print isn't large enough for most people to see. I wish there were fewer. 

In Dia v. Ashcroft, the majority of your court said that your opinion, quote, "guts the statutory standard and ignores our precedent. In LePage's Incorporated v. 3M, your opinion was criticized as, quote, "being contrary to our precedent and that of the Supreme Court." 

In RNS Services v. Secretary of Labor, you again dissented. And the majority, again, argued that, quote, "Your dissent overlooks our holding in the instant case and prior cases." 

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

In Texas Eastern Transmission Corp., a panel criticized your opinion because, quote, "it does not comport with our reading of the relevant case law." 

In Bray v. Marriott Hotels, the majority noted that binding circuit precedent made your analysis improper in a discrimination case. And the list goes on and on. 

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

"Nothing," Judge Garth wrote, "in the jurisprudence of the Supreme Court or in ours suggests that a three-judge panel of a court of appeals is free to substitute its own judgment for that of a four- justice plurality opinion, let alone that of the entire court." 

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

Now there may have been good reason -- you're much more expert on these cases than I am. There may have been good reason for you to do it. But I think it shows something. And that is you. 

If we have to project as to what kind of a Supreme Court justice you will be (inaudible) not going to be as reluctant as some to overturn precedent even by the rules of stare decisis. 

And so you wonder, if you are as willing as you are to depart from precedent on the 3rd Circuit, what's going to happen if you should get on the Supreme Court. 

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

ALITO: You did, Senator. And I think that you need to examine each of the cases to see whether what I did was justified. 

Let me just take one that struck me when you read from it, and that was the United Artists case. What I said there that a Supreme Court decision that had come up, that had been handed down after the most recent 3rd Circuit decision relating to the issue, superseded what our court had said. 

So I was following an aspect of stare decisis there. I was following what we call vertical stare decisis, following the Supreme Court. And I don't think there's any dispute. When the Supreme Court hands down a decision that's in conflict with one of our earlier cases, we have to follow the Supreme Court. 

SCHUMER: Yes, but there's no question that in that situation, Judge Cohen said your opinion was, quote, "wrong to revisit an issue that has already been decided and failed to give respect and deference to the circuit's well-established jurisprudence employing the improper motive test in the substantive due process land use context." 

It's rather complicated, but he's sure saying, in his view, you didn't follow court precedent. 

ALITO: And, Senator, there was this body of 3rd Circuit precedent, and it said that it's proper for a federal court to get involved in a zoning dispute, which is traditionally a local matter, if there is simply an improper motive, whatever that might be. 

And after that, the Supreme Court, in an opinion by Justice Souter, emphasized that the test under substantive due process in an area like this, an area that the other judge in the majority and I thought was like this, is whether what was done shocks the conscience. 

And so you had a Supreme Court decision intervening. And in that situation, I thought was our obligation -- and I wrote the majority opinion there -- to follow what the Supreme Court had said. 

SCHUMER: But my only point being here is one judge's view of what stare decisis requires and another judge's view of what stare decisis requires are not always the same. The concept has some degree of elasticity. 

And when, in reference to questions by people, you say: Well, how do you feel about this case, and particularly Roe, which has been where we started off here, I believe in stare decisis, it means that you're going to take precedent into account, but it certainly doesn't necessarily mean where you'd come out. 

And let me tell you where I conclude where you'd come out, just sort of summarizing this argument. First, again, greatly disturbing I think to many Americans would be that you won't distance yourself from your 1985 view that the Constitution does not protect a right to a woman's right to choose; that that view has not changed; that you have refused to say, unlike you did in another part of that 1985 memo, that you think it's wrong now -- which would lead one to think that, you know, that you probably believe in it. 

Second, you've told us you respect precedent and stare decisis, but we have seen that the stated respect for stare decisis hardly determines whether a Supreme Court justice will vote to uphold precedents -- not because when they come here they're being disingenuous with us.

SCHUMER: I don't think that at all. But because the concept is somewhat elastic, because it doesn't guarantee that you will uphold precedent, and particularly doesn't guarantee it when the Constitution conflicts with stare decisis, with the precedents of the court. 

And finally, to top it off, we have seen that your 3rd Circuit record can hardly provide a great deal of comfort in this area either, that many of your fellow judges criticized you for ignoring, abandoning or overruling precedent. 

Taken together, these pieces are very disturbing to me. Your blanket 1985 statement, not distanced from, that the Constitution doesn't protect the right to an abortion, the fact that respect for precedent and stability doesn't prevent overruling of a past decision, and your own record of reversing or ignoring precedent on the 3rd Circuit lead to one inevitable conclusion: We can only conclude that if the question came before you it is very likely that you would vote to overrule Roe v. Wade. 

Yield back my time. 

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

SCHUMER: Please. Time is yours. 

ALITO: My 3rd Circuit record in looking at abortion cases provides the best indication of my belief that it is my obligation to follow the law in this area and in all other areas. If I have had an agenda to uphold any abortion regulation that came along, I would not have voted as I did in my 3rd Circuit cases. 

I have testified here today about what I think about stare decisis. I do think it's a very important legal doctrine. And I've explained the factors that figure into it. It would be the first question that I would consider if an issue like this came before me. 

SCHUMER: Let me just say, though, you have ruled on certain cases, many of them were on technicalities, and in all of them, as a 3rd Circuit judge, you were bound by Supreme Court precedent. 

You never in the 3rd Circuit were squarely presented with the question that I asked, which is a decisive question, which is whether the Constitution protects a woman's right to choose. 

You were never asked in the court. You were never asked to overturn Roe v. Wade. And even if you were in the 3rd Circuit, you couldn't, because you were bound by the precedent of the court. 

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

Thank you, Mr. Chairman. 

ALITO: If the matter were to come up before me on the Supreme Court, I would consider the issue of stare decisis. And if the case got beyond that, I would go through that entire judicial decision- making process that I described. 

ALITO: That's not a formality to me, that's the way in which I think a judge or a justice has to address legal issues. 

And I think that is very important. And I don't know a way to answer a question about how I would decide a constitutional question that might come up in the future, other than to say I would go through that whole process. I don't agree with the idea that the Constitution always trumps stare decisis. 

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

SPECTER: Let him finish his answer, Senator Schumer. 

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

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

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

SCHUMER: Thank you. 

Thank you, Mr. Chairman. 

SPECTER: Thank you, Senator Schumer. 

Senator Cornyn? 

CORNYN: Thank you, Mr. Chairman. 

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

ALITO: I'm familiar with that question. 

CORNYN: I suppose the reason why... 

(LAUGHTER) 

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

The point is this: It's an unfair question because it implies, regardless of what your response has been, that at one time you did, when in fact you have not. 

And I just want to explore, to start with, Senator Schumer's questions about what is written in this Constitution about abortion. Does the word abortion appear anywhere in the Constitution? 

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

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

ALITO: There is no express reference to privacy in the Constitution. But it is protected by the Fourth Amendment and in certain circumstances by the First Amendment and in certain circumstances by the Fifth and the 14th Amendments. 

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

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

CORNYN: So to ask you whether the right to free speech, which is explicitly protected under the First Amendment of the Constitution, ask you whether that's in there, and then to ask you in the same question or at least same series of questions whether the right to abortion on demand is in the Constitution, one is explicitly stated in the First Amendment. The other is the product of court interpretation. 

Isn't that accurate, sir? 

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

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

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

ALITO: Yes. 

Griswold talked about emanations and penumbras. And Griswold has later been understood by the Supreme Court as being based on the protection of liberty under the Fifth Amendment and the 14th Amendment. 

CORNYN: Well, I was particularly troubled by the exchange of questions and answers, because the suggestion is that you have somehow been unresponsive. 

And as I said in my opening statement, I do think that there are those who have already decided to vote against your nomination and are looking for some reason to do so. And I think one of the reasons that they may claim is that you've been nonresponsive. 

But I was -- I thought it was telling that Senator Schumer said he didn't expect you to answer that question. 

I would like to refer back to Senator Biden's comments where he praised you at the close of his remarks. He said: I appreciate you for being responsive. He said: I cannot remember a nominee being this forthcoming. I appreciate that you've answered nearly every question put to you. Thank you for being so responsive. 

And indeed, according to one count, you've answered more than 250 questions thus far today. 

So I think in all fairness the question is not a fair one to ask you whether the right to an abortion is written in this document. The fact is and the reason why you applied the doctrine of stare decisis is because you recognize the precedential effect, the authoritative effect of the Supreme Court's interpretation of this document as the law of the land, do you not, sir? 

ALITO: That's correct. 

CORNYN: And you mentioned Plessy v. Ferguson. I think it was Daniel Patrick Moynihan, a Democrat senator from Senator Schumer's state, who said if it weren't for the ability of the courts to go back and revisit these decisions, how would you ever correct a mistake? 

And I think the fact is you've mentioned one of the instances where, thank goodness, the court has gone back and revisited a terrible decision which has been a scar on our country and on our jurisprudence, Plessy v. Ferguson. 

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

CORNYN: And I think we can all agree that that would be a terrible thing, and thank goodness we have a Supreme Court that has had the courage to go back in accordance with the principles of stare decisis and revisit terribly wrong decisions and to correct them and to bring us where we are today. 

You know, it must be strange to have people listen to the questions and answers here, because on one hand you'll hear rather complimentary comments; on the other hand, even senators who are still, at least for the record, undecided -- I hate to think what it would be like if they had actually determined to vote against you already -- making rather strong critical statements. 

But it means a lot to me to know that the people who know you best, the people who have worked with you on the 3rd Circuit Court of Appeals, are they complimentary. I happen to believe that we ought to look to the people that know you best as being in the best position to judge your character, your integrity, your competence, and not this caricature that happens during these confirmation proceedings by the attack dogs, the interest groups, who pay a lot of money, spend a lot of time trying to tear down that reputation for integrity and competence that you have worked to hard to build during your lifetime. 

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

But I was struck by a quote that I read from your former colleague, the late Judge Leon Higginbotham. 

Who is Judge Higginbotham, by the way? Or who was he? 

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

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

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

ALITO: I think probably most people would describe him that way. 

I thought we got along very well and we generally agreed. There were cases in which we disagreed, cases in which I dissented from an opinion that he wrote and I think there were cases in which he dissented from opinions that I wrote. 

CORNYN: Well, I wonder if you're aware of one thing that he was quoted as having said. This is out of the Los Angeles Times, comments he made about you to Judge Timothy Lewis. Quoted in the Los Angeles Times, quote, "Sam Alito is my favorite judge to sit with on the court. He's a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn't have an agenda. He is not an ideologue." 

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

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

CORNYN: Well, I'm pleased to tell you he did say it, according to the Los Angeles Times. And I think it's a high compliment that someone who would have, perhaps, such a divergent view and, perhaps, different political beliefs than you would say those sorts of things about you and your record on the 3rd Circuit Court of Appeals. 

Now, I have some charts, too, like Senator Schumer. I like my charts better than his, but we'll let others be the judge. 

But I want to ask you a little bit about Justice Sandra Day O'Connor. You had some very high compliments about her yesterday. 

CORNYN: And that's high praise. It really is. 

And I would like to submit for my colleagues' consideration that if Sandra Day O'Connor was in the mainstream, then Sam Alito is, too. And this is why. 

For example, Justice O'Connor and Judge Sam Alito both set limits on Congress' commerce power. 

Sandra Day O'Connor and Sam Alito both struck down affirmative action policies that had strict numerical quotas. 

And both -- this ought to be a shocker to some based on what we've heard here today -- is that both Justice Sandra Day O'Connor and Judge Sam Alito have criticized Roe v. Wade. 

In fact -- this is pretty astonishing to me -- according to the Harvard Law Review, over the last decade, Justice O'Connor agreed more often with Chief Justice Rehnquist, 80 percent of the time, than with any other justice. 

And let's go through these individually. 

First of all, you know, we talk about whether it can be a federal crime to possess a machine gun that doesn't implicate trafficking or some aspect of interstate commerce. But, you know, all we have to do is go back to a little bit of the history we all learn in high school to remember the Articles of Confederation and the fact that the states were all powerful, that the national government was crippled because it really had no power and it was subject to the unanimous vote of the states before it could do things that were very important. 

And so then in Philadelphia, the delegates there wrote -- and ultimately it was ratified -- a federal Constitution. But you already alluded to this earlier. 

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

In fact, it is a fact, is it not, sir, that when we talk about federalism, really what we're talking about is the fact that our federal government, our national government is one of enumerated powers that are set out in the Constitution, and all powers that are not enumerated or necessary and proper to the execution of those enumerated powers as a general rule are reserved to the states? 

ALITO: Yes. 

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

CORNYN: And so when someone suggests that you're taking a crabbed or cramped or unorthodox view toward congressional power because you say that it's not clear from the statute or the crime with which an individual is charged that interstate commerce is implicated, aren't you enforcing that original understanding of what powers were expressly or otherwise delegated to the federal government and what powers were reserved to the state? 

ALITO: Well, that's what Lopez, as I understand it, tried to do. It said that although the commerce power is broad, it is not all encompassing. It involves the regulation of interstate and foreign commerce. And this statute that we have in Lopez goes beyond that. 

And my case, the Rybar case, seemed to me to be as close to the situation in Lopez as any case that I was aware of. 

CORNYN: Well, I know my constituents back in Texas, and I suspect people all across the country would be glad to know that you don't believe that all wisdom and all power is centered in Washington, D.C., but that under our federal system the state and federal governments are partners and that enforcing this structure that is a product of our history and a product of our Constitution is an important thing for judges to do. 

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

As a matter of fact, the Lopez case that -- I believe in Rybar you said the question before the court is whether Lopez is a constitutional freak, or words to that effect. 

Because, as you pointed out, it was a little bit of a shock to everyone's system to see the Supreme Court was actually serious about recognizing the authority of the states and to recognize that there are limits to congressional power. But Lopez re-established, or perhaps restated, that understanding. 

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

ALITO: Yes, she did. 

CORNYN: And so she shared, at least to that extent, your conviction that there is some limit to congressional power and that there was some point beyond which Congress' authority could not reach unless it was made clear that it was pursuant to one of the powers enumerated under the Constitution. Did I say that roughly correct? 

ALITO: I agree with it. She said that Congress' power under the commerce clause is not all-encompassing. 

And my job as a Court of Appeals judge is not to say that a decision of the Supreme Court should be limited to its facts -- in other words, not applied as a precedent in any other comparable situation that comes along -- my job is to take those precedents seriously, and that's what I tried to do. 

CORNYN: So when Justice O'Connor held in Lopez that Congress cannot prohibit the possession of handguns near schools because mere possession is not commerce, you were doing your very best to stick to that precedent established by the United States Supreme Court when you wrote your opinion in Rybar, is that correct? 

ALITO: That's correct. 

In Lopez, the Supreme Court said that possession of a firearm -- mere possession -- is not a commercial activity and the interstate commerce -- the commerce clause authorizes the regulation of interstate commerce and the activity involved in Rybar was the possession of a firearm. 

ALITO: So it followed that if it was a noncommercial activity in Lopez, it must be a noncommercial activity in Rybar. That's how I saw it. 

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

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

CORNYN: And you pointed out here that if the Congress had been a little more careful in showing the basis upon which mere possession could affect interstate commerce, that that would be a different case and perhaps the outcome might have been different in Rybar? 

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

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

ALITO: Well, that's correct. 

CORNYN: You didn't rule for the government? 

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

CORNYN: Well, you've also been -- there's another question about affirmative action cases. We've alluded a little bit to that. And Justice Sandra Day O'Connor, the model Supreme Court justice who is clearly in the mainstream, you and Justice O'Connor both agreed to strike down affirmative action policies which set numerical quotas which resulted in reverse discrimination. She did in Wygant v. Jackson Board of Education in 1986. You did in Taxman v. Board of Education in 1996. 

Would you agree with that, sir? 

ALITO: I would. Taxman was a case that our court considered en banc. It means all the judges were sitting. And I sit on a very moderate court that is certainly not unreceptive to the concept of affirmative action in general. 

ALITO: But the vote in that case was 8-4. It wasn't a close vote. And I joined the opinion that was written by my late colleague, Judge Mansmann, holding that that particular affirmative action plan was in violation of Title VII. 

CORNYN: Let's talk again about Roe v. Wade. 

Now, this is going to be a shocker for some people based upon what has gone on before, because it's been suggested that but for Sandra Day O'Connor, Roe v. Wade may be overruled, that this is really what lies in the balance here during your confirmation proceeding. 

But the fact is that Justice Sandra Day O'Connor, the model Supreme Court justice, wrote in the City of Akron v. Akron Center for Reproductive Health, the trimester three-stage approach adopted by the court in Roe cannot be supported as a legitimate or useful framework. "Roe," she said, "is clearly on a collision course with itself." 

And you, in the memorandum for which you've been disparaged many times when you were in the Solicitor General's Office, you recommended: Don't mount a frontal attack on Roe v. Wade but instead use the opportunity to nudge the court toward the principles in Justice O'Connor's Akron dissent. 

So when you had an opportunity to urge the reversal of Roe v. Wade, even as a lawyer for the administration, you urged a more cautious approach and one consistent with Justice O'Connor's opinion at the time. Isn't that correct, sir? 

ALITO: Yes. Justice O'Connor's opinion in Akron, which was the last previous big Supreme Court decision at that time, was one of the things that influenced me in the memo that I wrote in Thornburg. She analyzed Roe and I was quite persuaded by the points that she made in the Akron decision. 

And the general approach -- the arguments that I was recommending that the government make in the Thornburg case were along the lines of the undue burden standard, I think, that she later adopted. I was arguing that the particular provisions should be challenged on their own terms. 

One of provisions was an informed consent provision that was virtually identical to the informed consent provision that later came up in Casey -- and in Casey it was upheld. 

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

ALITO: Yes. 

CORNYN: And essentially what happened in that, Justice Kennedy, Justice Souter and Justice O'Connor -- the model Supreme Court justice -- essentially scuttled the essential argument in favor of the right to abortion based on this trimester approach which Justice O'Connor criticized and which has also been criticized by people like Justice Ginsburg, former counsel to the American Civil Liberties Union who now serves on the court, Lawrence Tribe I believe, a well-known liberal legal scholar at Harvard. 

The fact is, Roe v. Wade, the writing itself, the justification for the decision has been widely criticized by legal scholars all across the spectrum, has it not, sir? 

ALITO: It certainly had been at the time of the 1985 memo. And although I wasn't recommending that the government get into that issue, I mentioned in the memo some of the authors who had criticized Roe's reasoning. 

CORNYN: Well, and in 1992, the only thing that really survived in Roe v. Wade, which was written 33 years ago, was the essential holding -- I guess you could call it that. And there's been some quotes about the importance of reliance interests in terms of giving it the benefits of a stare decisis or precedent. 

But essentially the whole legal scheme or basis upon which abortion was protected was changed to an undue burden standard, isn't that right, sir? 

ALITO: In Casey, the Supreme Court moved away from the trimester approach and they adopted the undue burden standard, which had been set out in some earlier opinions by Justice O'Connor. And the joint opinion in Casey made it clear that that was now the governing standard under Supreme Court law. 

CORNYN: But the plurality opinion -- Justice O'Connor, Justice Kennedy, Justice Souter -- did not say you can have abortion without limitation. It did recognize the right of the states to pass laws which regulate abortion as long as it did not create an undue burden on a woman's right to have an abortion according to that decision. 

CORNYN: Isn't that roughly what... 

ALITO: Yes, that's what they held. 

CORNYN: Well, I guess my point is that, if, on at least three counts on the basis of the Congress's commerce power and limitations on congressional authority in the affirmative action area and in terms of criticizing the basis upon which Roe v. Wade was decided 33 years ago, you and Justice O'Connor bear a lot of similarities. 

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

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

The suggestion is, somehow, you're always going to defer to the president and the executive branch when the legislative branch and the executive branch vie for authority -- whether it's in the intelligence-gathering area, the National Security Agency and this electronic eavesdropping, really an early warning system to try to identify terrorists so we can protect ourselves against another 9/11, or other acts of presidential power. 

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

CORNYN: And my understanding is, in that case, that the Supreme Court, it was fractured, but the plurality opinion that Justice O'Connor joined said that that authorization of use of force was a congressional act which trumped the statutory limitation that Congress had previously passed about detaining American citizens without charging them with a crime. 

Did I get that roughly correct? 

ALITO: Yes. That's exactly correct. 18 USC 4001, which is called the anti-detention statute, says that nobody may be detained without authorization. And in Hamdi, Justice O'Connor's opinion concluded that the authorization for the use of military force constituted statutory authorization to detain a person who had been taken prisoner as an unlawful combatant in Afghanistan. 

CORNYN: Well, I appreciate your pointing out that one of the other important statements in Hamdi was that people who are detained have certain due process rights and that the president cannot exercise his powers as commander in chief without judicial review or without anyone else looking at it, including a court or a military tribunal under appropriate circumstances. 

But the fact is Justice O'Connor took a view of presidential power there that some might consider to be rather broad, the power to detain an American citizen who's a suspected terrorist without actually charging them with a crime for the reasons that Senator Graham stated; that if that person who was actually captured in Afghanistan and brought to Guantanamo Bay, if they were released, then they likely would return to the battlefield and plot and plan and execute lethal attacks on American citizens. 

Interestingly, people like to characterize judges as conservative, liberal. 

CORNYN: One interesting thing to me about that is Justice Scalia, who you have been likened to, actually dissented and held that it was unconstitutional for the president to detain these individuals without charging them with some crime, like treason or something else. Isn't that correct, sir? 

ALITO: Yes, that's correct. This was a case where Justice O'Connor's view of the scope of executive power was broader, considerably broader, than Justice Scalia's. 

Justice Scalia's position was that, unless habeas corpus is suspended -- and there are only limited circumstances in which that can take place -- then there would have to be a criminal trial. 

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

(LAUGHTER) 

After talking about Judge Scalia -- you know what I was thinking, in the back of my mind, a nickname that you've acquired sometimes. And I apologize. 

But the fact is that people try to characterize judges as being somewhere on the political spectrum, or making results-oriented decisions based on some ideology. But the fact is -- and I'll just ask you if you agree with this -- whether good judges who try to apply the law to cases and facts that come before them on an individual basis without regard to who wins and who loses, their decisions could be characterized as liberal, conservative and anywhere in between. Has that been your experience? 

ALITO: I think that's correct, Senator. 

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

CORNYN: Thank you very much. 

SPECTER: Well, thank you very much, Senator Cornyn, for that round of questions. 

When Senator Cornyn misstates even one word with his competency, you know it's getting late. 

(LAUGHTER) 

And thank you, Judge Alito, for your -- we can all agree there may be some areas of controversy among the 18 of us, but I think that we can all agree about your stamina and your poise and your good humor, and even some subtle humor. 

(LAUGHTER) 

Your family has shown the same kind of stamina. The crowd has pretty well emptied out, but the Alitos are all still here. And they have provided not only support but occasion for a comment or two. 

I noticed a big smile on your wife's face when you were asked if you stopped beating your wife. 

(LAUGHTER) 

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

(LAUGHTER) 

SPECTER: Now, that's some of the subtle humor that your profile has talked about. We'd like to see a little more of it, Judge. 

(LAUGHTER) 

Perhaps if we went 11 hours instead of 10 hours, we'd get to that. 

LEAHY: Oh, please don't. 

(LAUGHTER) 

I'll certify that he's very, very funny. Just don't do the other two hours. 

(LAUGHTER) 

SPECTER: Well, that raises the question as to what else you'll certify to, Senator Leahy. 

(LAUGHTER) 

LEAHY: That's enough for today. 

SPECTER: I want to make one comment, which I have been pondering as to whether or not to make it, that there's a story, which is inapplicable to you, Judge Alito, so I think I can make it. 

And the question is always raised: Who is behind a successful man? And the answer is a surprised mother-in-law. 

(LAUGHTER) 

But you have negated that infrequently told story. 

So I want to thank you for your testimony today, and I want to thank my colleagues for what we are proceeding to do here, in accordance with our commitment, is to have a full, fair and dignified hearing. 

And I think we're on the way. 

And these proceedings are being very broadly covered. Can't pick up the front page of any newspaper in America without seeing your smiling face, Judge. 

And in an era where the media is filled with criticism about the Congress, I think it's a good day for the United States Congress to have these proceedings, because people have been watching them and they see long hours and they see seriousness and they see important issues and they see the kind of dignity which we have had here today. 

And I thank my colleagues and I thank you, Judge Alito. And we will resume this hearing tomorrow morning at 9:30.

To go back to Part II, click here.

Courtesy FDCH e-Media