Transcript: Sen. Specter Discusses Alito Nomination

Courtesy FDCH/e-Media
Monday, October 31, 2005; 5:30 PM




SPECTER: Afternoon. How you all doing?

I met for about an hour and a quarter this morning with Judge Samuel Alito, whom I have known for the better part of two decades. We talked about a wide variety of issues which will come before the Judiciary Committee during his hearings. 

I start with his statement that he believes there is a right to privacy under the liberty clause of the United States Constitution. And he believes that the right applied to singles as well as married under the interpretation of Griswold v. Connecticut. And he says that he accepts Griswold v. Connecticut as good law. 

We talked a considerable extent about the value of precedence or stare decisis, to let the decision stand, which is a key factor, as you all know, on evaluating Roe. 

I raised with him a question about super precedents, which we took up in the hearings for Judge Roberts -- Chief Justice Roberts -- and the super-duper precedents which I added in on the basis of some 38 cases where the Supreme Court has had an opportunity to overrule Roe and has not done so. 

There was an interesting article in the New York Times yesterday about where super precedents are going and super-duper precedents are going, and Judge Alito did not endorse super precedents or super-duper precedents, but did say that he viewed it as a sliding scale, and that the longer a decision was in effect and the more times that it had been reaffirmed by different courts, different justices appointed by different presidents, it had extra precedential value. 

He brings to this nomination a very longstanding record in public service. He clerked immediately after graduation from the Yale Law School. He was valedictorian of his high school class. He had high marks at Princeton, had high marks at Yale. He was on the Yale Law Journal, and you'll pardon me for just a moment, I think that's a qualification.

And after being a clerk, he was an assistant United States attorney, and then he was in the solicitor general's office, and then a United States attorney. And for 15 years he has been a judge on the Court of Appeals for the 3rd Circuit. 

He comes highly recommended by his colleagues on the 3rd Circuit. As I say, I have known him, not well, but known him to some extent for the better part of 20 years, and we will proceed with very thorough, incisive hearings on Judge Alito in what we have come to call a dignified and professional way. 

SPECTER: And they will be, as I say, very, very thorough.

The timing is something which is now under consideration. I met with Senator Leahy this afternoon, and we talked about the timing. 

Judge Alito brings with him a very extensive record, so-called paper trail. He estimates that he decided or was involved in the decisions on some 250 cases a year. Over 15 years, that would add up to 3,750 cases. 

He estimates that he has some 300 opinions. That's a fair amount of work to review. 

The White House, as you know, is interested in having the matter concluded by the end of the year. I do not know that that is realistic. I do not know that that is unrealistic. 

What I do know is that we're going to do it right, and we're not necessarily going to do it fast. 

If it can be done within the time frame by the end of the year and done properly with an opportunity to review Judge Alito's record and have the kind of hearings that are necessary for this kind of a very, very key position -- you hear it said often, but frankly not too often, that short of a declaration of war, the most important function of the United States Senate is the confirmation of U.S. Supreme court justice for lifetime terms. 

They make the decision on the cutting edges of all of the big questions in our society. 

As things have evolved, the Congress punts to the court, the executive branch punts to the court. And they have lifetime tenure and independence, and they have come somehow in our society to take on those cutting edge questions. So it is very, very important. 

I'm a little disturbed to see that within minutes, an hour or so after the submission by the president of Judge Alito's name, that all ready there are criticisms, criticisms coming from people who can't possibly have reviewed his record.

SPECTER: And I think he is entitled to an opportunity to be heard and not to have people condemn or criticize when there's obviously an insufficient basis for doing so. 

He has the dissent in the Court of Appeals for the 3rd Circuit on Casey v. Planned Parenthood, on the narrow grounds already publicized, upholding the Pennsylvania legislative determination to require notice to a husband -- a very narrow ruling, very carefully crafted on the basis of Justice O'Connor's decisions in previous cases about what would constitute an undue burden for the woman.

He joined in a decision striking down a partial birth abortion statute from New Jersey. That was in the context where it had been decided by the Supreme Court, but that was his decision. 

In reviewing some of his cases, one which came to mind had some elements of humor and some elements of looking out for the little guy. 

He sat on the panel of the 3rd Circuit which reviewed a decision by the Social Security Administration denying disability to an individual, saying that the individual could get a job as an elevator operator. 

The Court of Appeals, the opinion which he wrote, said there weren't jobs available as elevator operators -- they're automatic, as you all know, because you got to the third floor here. 

And the lead question when the case got to the Supreme Court was by Justice Scalia, who noted that the Supreme Court had an elevator with an elevator operator. 

SPECTER: And the lawyer for the social security applicant said: Well, I've already given my card to try to look into that possibility. And Judge Alito was reversed nine to nothing.

But I thought it was an interesting case about how, although there is customary deference given to administrative agency decisions, that Judge Alito was disposed to look out for the interest of the applicant who was seeking a disability claim.

There's a great deal more which can be said, but I know that you're patiently awaiting the start of the hearings.


QUESTION: Senator, your Democratic colleagues, Senators Reid and Leahy, said they weren't consulted about this nomination. Do you think that will make it harder for Judge Alito to get confirmed?

And when were you informed of the president's decision?

SPECTER: I was told of it about 6:50 this morning.

With respect to consultation, the president has met with Senator Reid and Senator Leahy, Senator Frist and myself on two occasions, well-publicized occasions, and discussed with those leaders from the Democratic Party the process.

And the president, as you know, was anxious to proceed and to move ahead. I think there has been more consultation on this nomination than on most of the others.

SPECTER: Consultation is always desirable. I don't know that there's ever enough consultation. But the president has been open to suggestions by senators, including Democratic senators, on who they would like to see nominated.

I don't know that it will make a whole lot of difference. I don't know that it made a whole lot of difference with Chief Justice Roberts. I don't know that it would have made any difference with White House Counsel Harriet Miers.

QUESTION: There seems to be more criticism on this nomination, though, than on the other two.

SPECTER: More criticism on this nomination than the other two? I'll tell you why that is. Do you want to know why that is? Because this is now, and we've pretty much forgotten about what happened last week.

Things happen so fast around here.

QUESTION: Senator Specter, if I could follow on her question, you said you've known him for over two decades. Did the White House specifically ask you about this nominee before they announced it?

SPECTER: The White House, yes, they did, along with quite a number of other prospective nominees. I was consulted in my capacity as chairman of the committee. And Judge Alito was among those who were mentioned by the White House officials with whom I conferred as to the possibility of selection.

QUESTION: You gave him a good recommendation, that he would probably be confirmed?

SPECTER: Did I give him a good recommendation or say that he'd probably be confirmed? I don't make book on these nominees as to what's going to happen. 

And I told them what I knew. But I've stayed out of the line of making recommendations. It is true that the advice and consent function would leave a senator free to give advice which is separate from consenting, but I think the freedom of the chairman and the independence is better protected by not making recommendations -- to take a look, to make inquiries, tell them what I know, but not to be a recommender.

QUESTION: His critics have focused on a 1996 decision in which he said the commerce clause did not allow Congress to regulate the sale of machine guns within one state.

QUESTION: Since the commerce clause is a big issue with the Roberts nomination, do you have any thoughts on that, that case?


That case followed on the heels of Lopez, where the Supreme Court of the United States had struck down a gun case in a school district because the Supreme Court decided the commerce clause did not authorize Congress to make that judgment. 

And Judge Alito's opinion, as I understand it, because I haven't had an opportunity to study the opinion yet, but I know of the opinion. And it was crafted on the basis of not a congressional finding and no record. It was very, very narrowly tailored.

QUESTION: Given what you know so far about Judge Alito, there is a lot of talk this year about ideologues. Do you think -- can you say now that you don't think that Judge Alito is an ideologue?

SPECTER: I have no reason to categorize him as an ideologue. People who have worked with him on the Court of Appeals, who know him well, say he is not an ideologue. 

But I'm not about to make a judgment on that or anything else until I have a chance to read his opinions.

QUESTION: How central will the dissenting opinion in the Casey case be in the decision-making process going forward? And do you think his opinions on abortion are clear at this point, as some groups are suggesting?

SPECTER: How important will his dissent in Casey will be?

I think it will be a factor. His dissent in Casey does not signify disagreement with Roe v. Wade. The joint opinion by the Supreme Court of the United States in Casey upheld Roe but permitted certain limitations on parental notification, on a waiting period.

SPECTER: And this was one of quite a number of limitations which the Pennsylvania legislature had imposed, but still consistent with upholding Roe v. Wade. So there's nothing in his dissent which suggests disagreement with the underlying decision in Roe v. Wade. But I'm sure it'll be a subject of discussion at the hearings.

QUESTION: Since you've known him for so long, can you compare and contrast just personally or philosophically his views as to those of Scalia?

SPECTER: Well, I don't think there is any basis for the derision on the name which has been affixed to him that is in some of the literature anonymously being circulated against him. 

The comment "Scalito," which I think is inappropriate for many reasons, which I'd prefer not to go into, came in an early article written about him when he joined the 3rd Circuit, and it made a catchy phrase. 

I've been on the other end of a lot of catchy phrases I don't care too much for. If they have something to say about his decisions in a specific basis, I'd be pleased to see that. But to have that kind of a term of derision I think is out of line.

QUESTION: Can you talk at all about the differences between the two? Are they two different justices?

SPECTER: Oh, I think they're considerably different. There's been no showing except for that derisive phrase and ethnic origin as to similarities.

SPECTER: So let's read the opinions. I've read enough of Justice Scalia's opinions. I'd like to read some others for a change.

QUESTION: Given that some Democrats came out so quickly this morning against him, are you concerned that that might lead to a filibuster?

SPECTER: Well, I'm always concerned about a filibuster. But I think that Judge Alito's record hardly measures up to the standard that the Gang of 14 had of extraordinary circumstances. I think it hardly does that.

QUESTION: How did Judge Alito's comments about super precedents and super-duper precedents differ from Judge Roberts'?

SPECTER: Well, Judge Alito said a little more than Judge Roberts said. But, then, Judge Roberts ducked super precedents and he ducked super-duper precedents. 

And in the informal meeting I had with him, I asked him a pop quiz. I said: In how many cases do you think the Supreme Court has had a chance to overrule Roe v. Wade?

And he guessed something in the teens. And he was surprised to hear that there were 38. But that was one of many questions which Chief Justice Roberts successfully declined to answer.

QUESTION: Well, may I ask it this way, then: With your conversation with Judge Alito today, would you say he was far off or close to where Judge Roberts ended up on the super and super-duper precedent question asked in the hearing?

SPECTER: (inaudible) if you want to rephrase the question to Chief Justice Roberts (inaudible) gotten an answer and I'll give you an answer.

I think he went farther than Roberts went when he said that -- he used the term "sliding scale" and said that when a case has been reaffirmed many times, it has extra -- I think he said "weight" -- as a precedent, reaffirmed by different courts, nominees appointed by different presidents.

QUESTION: Senator, the New Hampshire -- I believe it's the Ayotte case -- is scheduled for argument November 30th. You don't see any opportunity at this point for him to participate in that, given your schedule?

SPECTER: November 30th of this year?




QUESTION: Did you have a chance to discuss the Philadelphia Naval Yard case with Judge Alito this morning? And in any case, how much weight do you give his dissent in that case in deciding on commendations (ph)?

SPECTER: The Philadelphia Navy Yard case? 


SPECTER: I've heard of that case. We didn't discuss that one. We didn't discuss that one.

QUESTION: How much weight, if any, have you given it, along with all the other cases...

SPECTER: This is the 1994 Supreme Court decision and the previous decision was with the 3rd Circuit?


SPECTER: I would not consider that a conclusive disqualifier because he ruled against my argument in that case.

I'd forgotten about it. That was yesterday.

QUESTION: If the Democrats do threaten a filibuster, will you vote to end it?

SPECTER: I'm not going to engage in double hypothetical speculation. Single hypothetical speculation, maybe.

QUESTION: You discussed Griswold. Did you also discuss Lawrence v. Texas, and the precedential value of Lawrence v. Texas?

SPECTER: I didn't take up that case specifically. We met, as I said, for about an hour and a quarter and didn't take up all the questions I'll have to ask him.

QUESTION: You discussed Griswold. Did you discuss Eisenstadt with him as well? And do you see any possibility of getting a confirmation hearing in December?

SPECTER: I discussed the issue of the contraceptive issue applying singles, as well as marriage in Griswold. And Eisenstadt was not specifically mentioned, but the subject matter was.

QUESTION: Democrats say this was a nomination out of weakness by Bush, that he was catering to conservatives. Do you feel at all that this was, given what happened with Miers, a weak nomination?

SPECTER: I do not think that the charge by the Democrats that this was a nomination out of weakness has any validity at all. That spin game is par for the course in this city.

SPECTER: I can tell you that Judge Alito was on the list where Judge Roberts was selected the first time. He was on the list where Harriet Miers was selected the second time. So he's been in the mix from the very start, and he wasn't an add-on to placate any ideological group, in my opinion.

QUESTION: Senator, what kind of a witness do you think he'll be, since you know him? And what does he have to do to win over people who are disappointed that he's not a moderate, not a woman and not a minority?

SPECTER: What does he have to do? He has to establish that he's qualified. I reread the Constitution on nominations and I didn't find any of those requirements present in the Constitution.

QUESTION: That doesn't bother you?

SPECTER: Well, this may shock you, but if I were president I would handle things a little differently. But I'm not the president. And the job that I have to do is to make a decision on whether he's qualified. And I'm not going to make a decision standing at this TV room on one foot. I'm going to study his cases, notwithstanding how much I know about him.

What kind of a witness he will be? I think he'll be an excellent witness. When we were talking about cases and decisions, he had recall, and recall with some specificity. I talked to him about the gun case that has come up here, and he recalled that. And talked to him about Casey, he recalled the specifics of that. And talked to him about quite a number of cases. 

He's a real legal scholar, beyond any question. And I think he'll be a very good witness.

QUESTION: You've asked a lot questions in the hearings and the letters to Miers and Roberts about executive and congressional power, the balance of power between the two.

Do you think that the Senate has ceded too much of its institutional power to the White House? And if so, what areas do you think the Senate ought to take power back? I know you talked in the last letters to Miers a lot about the ability to wage war and to maintain war or military action (inaudible).

SPECTER: Well, the answer to your first question, has Congress ceded too much power to the president, the answer is yes.

SPECTER: And the second part, to what extent -- how much time do you have?


QUESTION: As long as you got.

SPECTER: The issue on Guantanamo Bay, for example, is really at least a joint congressional judgment as to questioning, if not a primary congressional judgment, because the Constitution specifically says that the Congress will establish the rules for people caught on land or sea. 

And the Supreme Court came down with three opinions on June 24th of last year which are a maze of complexity -- a crazy quilt, as I called them in our hearings. And Congress has not legislated in that field, and we really need to do so.

On the questions which I posed for Ms. Miers, I raised quite a number of areas where we have gone to war against -- in Korea and in Vietnam without a declaration of war.

Just today, the front page of the New York Times has a story about the evidence being twisted on the Gulf of Tonkin resolution. We authorized the use of force in October of 2002, which was not activated until April of 2003 against a strong constitutional issue as to unconstitutional delegation of a core congressional responsibility to declare war except on a state of facts known at the time -- an issue I raised on the Senate floor.

If you take a look at my letter of last Wednesday, of a week ago today, to Ms. Miers, you'll see quite a number of areas. We have quite a few extra copies. I plan to use them in the hearing.


We have a lot of extra copies.

Thank you all very much.


Courtesy FDCH/e-Media

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