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

Courtesy FDCH e-Media
Monday, January 9, 2006; 3:32 PM

The transcript picks up with the opening statement of Sen. Cornyn.

SPECTER: Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

Judge Alito, welcome to the committee, and to your family as well.

I'm a little surprised to learn that you have a triply high burden for confirmation here. I guess we'll get a chance to explore that, and the fairness of that, or whether all nominees ought to have the same burden before the committee.

What I want to also make sure of is that we don't hold you to a double standard, that we don't expect of you answers to questions that Justice Ginsburg and others declined to answer in the interest of the independence of the judiciary and in the interests of observing the canons of judicial ethics.

Nevertheless, we have already heard a great deal about you and your credentials for the Supreme Court. As has been noted, you serve with distinction on the court of appeals. You served as United States attorney. And, indeed, you served your entire adult life in public service.

We've also heard a bit today, and you'll hear more as these proceedings unfold, about the testimonials from people who have worked with you, people who know you best. Whether liberal, moderate or conservative the judges on your court have praised you as a thoughtful and open-minded jurist, and we'll hear more from them later in the week.

CORNYN: The same can be said of the law clerks who've worked with you over the last 15 years. As you know, law clerks are those who advise appellate judges on the cases they hear. And you've had law clerks from all political persuasions, from members of the Green Party to Democrat clerks, even a clerk that went on to serve as counsel of record for John Kerry's campaign for president.

And every single one of them says that you will make a terrific Supreme Court justice, that you apply the law in a fair and even- handed manner, and that you bring no agenda to your job as a judge.

If fairness, integrity, qualifications and an open mind were all that mattered in this process, you would be confirmed unanimously, but we know that's not how the process works or at least how it works today.

We know that 22 senators, including five on this committee, voted against Chief Justice Roberts' confirmation just a few short months ago. And my suspicion is that you do not come here with a total level playing field.

I'm reluctantly inclined to the view that you and other nominees of this president to the Supreme Court start with no more than 13 votes on this committee and only 78 votes in the full Senate, with a solid, immovable, unpersuadable block of at least 22 votes against you no matter what you say and no matter what you do.

CORNYN: Now, that's unfortunate for you, but it is even worse for the Senate and its reputation as the world's greatest deliberative body.

The question is: Why, with so many people from both sides of the aisle and across the ideological spectrum supporting your nomination are liberal special interest groups and their allies devoting so much time and so much money to defeat your nomination?

The answer, I'm afraid, is that there are a number of groups who really don't want a fair-minded judge who has an openness to both sides of the argument. Rather, they want judges who will impose their liberal agenda on the American people; views so liberal that they cannot prevail at the ballot box.

So they want judges who will find traditional marriage limited to one man and one woman unconstitutional. They want judges who will ban any religious expression from the public square. They even want judges who will prohibit school children from reciting the Pledge of Allegiance.

As I say, none of these are mainstream positions embraced by the American people, so the strategy is to try to impose their agenda through unelected judges.

Judge Alito, the reason why these groups are trying to defeat your nomination because you won't support their liberal agenda is precisely why I support it.

I want judges on the Supreme Court who will not use that position to impose their personal policy preferences or political agenda on the American people.

CORNYN: I want judges on the Supreme Court who will respect the words and the meaning of the Constitution, the laws enacted by Congress and the laws enacted by state legislatures.

Now, this doesn't mean, as you know, that a judge will always reach what might be called a conservative result. It means that judges will reach whatever result is directed by the Constitution, by the law, and by the facts of the case.

Sometimes, it might be called conservative; sometimes it might be called liberal. But the point is that the meaning of the Constitution and other laws should not change unless we the people change them.

A Supreme Court nomination and appointment is not a roving commission to rewrite our laws however you and your colleagues see fit. I'll give you one example where I believe our Supreme Court has been rewriting the law for a long time. It's a narrative near and dear to me and others in this country. And I'm speaking of the ability of people of faith to freely express their beliefs in the public square.

There is no doubt where the founding fathers stood on this issue. They believed that people of faith should be permitted to express themselves in public. They believed that this country was big enough and free enough to allow expression of on enormous variety of views and beliefs.

They believed that freedom of expression included religious views and beliefs, so long as the government did not force people to worship in a particular matter and remain neutral on what those views and beliefs were.

CORNYN: But this country has gotten seriously off track under the Supreme Court when it went so far as to limit the right of even private citizens to freely express their religious views in public.

As I mentioned to you when we met early on in these proceedings, I had an opportunity, as some have had on this committee, to argue a case before the United States Supreme Court.

When I was attorney general, I argued a case -- helped argue a case called -- Santa Fe Independent School District v. Doe. The school district in that case had the temerity to permit student-led, student-initiated prayer before football games. And, of course, someone sued. I repeat, this was student-led, student-initiated, voluntary prayer. The Supreme Court held by a vote of 6-3 that this was unconstitutional.

The decision led the late Chief Justice Rehnquist to remark that the court now, quote, "exhibits hostility to all things religious in public life." And it's hard to disagree with him.

Depictions or expressions of sex, violence, crime are all permitted virtually without limit; but religion, it seems, never.

Now, this is where you come in, Judge.

I appreciate your record on the 3rd Circuit respecting the importance of neutrality of government when it comes to religious expression on a voluntary basis by individual citizens.

It's my sincere hope that when confirmed that you will persuade your colleagues to reconsider their attitude toward religious expression and grant it the same freedom currently reserved for almost all other non-religious speech.

No wonder many in America seem to believe that the court has become one more inclined to protect pornography than to protect religious expression.

Most people in America don't believe that "God" is a dirty word, but the sad fact is that some Americans are left to wonder whether the Supreme Court might have greater regard for it if it was.

CORNYN: Again, welcome to the committee, and thank you for your continued willingness to serve our great nation.

SPECTER: Thank you, Senator Cornyn.

Senator Durbin?

DURBIN: Thank you very much, Mr. Chairman.

Judge Alito, welcome to you and your family before the Judiciary Committee.

You've heard time and again from my colleagues why this seat on the Supreme Court means so much. They've quoted the statistics of 193 5-4 decisions where Sandra Day O'Connor was the deciding vote in 148 of those instances. She was a critical vote in issues of civil rights, human rights, workers' rights, women's rights, restraining the power of an overreaching president.

If you look at the record and the enviable record which Sandra Day O'Connor has written, you find she was the fifth and decisive vote to safeguard Americans' right to privacy, to require our courtrooms to grant access to the disabled, to allow the federal government to pass laws to protect the environment, to preserve the right of universities to use affirmative action, to ban the execution of children in America.

And Justice O'Connor was the fifth vote to uphold the time- honored principle, which bears repeating, of separation of church and state. There was real wisdom in the decision of our forefathers in writing a Constitution that gave us an opportunity to grow as such a diverse nation, and we should never forget it.

Justice O'Connor has been the critical decisive vote on many issues that go to the heart of who we are as a nation. We believe -- many of us -- that the decision on filling this vacancy is going to tip the scales of justice on the Supreme Court one way or the other. And that's why we are so mindful of the importance of our task.

DURBIN: Yesterday, the Chicago Tribune editorialized that anyone who questions your nomination has a heavy burden of proof. I disagree. I believe the burden of proof is yours, Judge Alito, the burden of demonstrating to the American people and this committee that you or any nominee is worthy to serve on the highest court to succeed Sandra Day O'Connor.

My friend, Illinois Senator Paul Simon, once said on the same committee that the test for a Supreme Court nominee is not where he stands on any one specific issue. The test is this: Will you use your power on the court to restrict freedom or expand it?

In the simplest terms, I think Paul Simon got it right. That is the best test because the Supreme Court is the last refuge in America for our rights and liberties. In my lifetime, it's the Supreme Court, not Congress, that integrated our public schools, that allowed people of different races to marry, and established the principle that our government should respect the value of privacy of American families. These decisions are the legacy of justices who chose to expand American freedom.

If you're confirmed, Judge Alito, will you continue their legacy?

You and I spoke about the Griswold decision in my office. Hard to imagine 40 years ago people could be convicted of a crime, fined, sent to prison for using the most common forms of birth control. The Supreme Court looked at that decision and looked at that case and said, "That's just wrong." We may not find the word "privacy" in the Constitution. That's just inherent to our freedom as Americans.

It seems like a given now. Who would even question it? But it hasn't been that long ago that up here on Capitol Hill we were involved in a bitter debate over the tragedy of Terri Schiavo. And Republican congressional leaders threatened federal judges with impeachment if they didn't agree to intervene into that family's painful, personal decision.

DURBIN: We see it in attempts on Capitol Hill to impose gag rules on rules on doctors on what they can say to their patients about family planning. And we certainly see it now with an effort by this government to tap our phones; invade our medical records, credit information, library records and the most sensitive personal information in the name of national security.

Now, Justice O'Connor was the critical fifth vote to protect our right of privacy. We want to know whether you will be that vote as well. You were the only judge on your court to authorize a very intrusive search of the 10-year-old girl. You were the only judge on your court who voted to diminish the right of privacy in the case the Planned Parenthood v. Casey, a position that was specifically rejected by the Supreme Court.

And as a government lawyer, you wrote that you personally believe very strongly the Constitution does not protect the right to an abortion.

Like many, I have thought about this issue of abortion time and again. It is not an easy issue for most people. I thought about the law, the impact of my personal religious beliefs and feelings, I thought about the real lives of people and the tragic experiences of the women I have met.

And I came to believe over the years that a woman should be able to make this agonizing decision with her doctor and her family and her conscience, and that we should be very careful that we don't make that decision a crime except in the most extreme circumstances.

There is also the issue of personal privacy when it comes the executive power. Throughout our nation's history, whether it was habeas corpus during the Civil War, Alien and Sedition Acts in World War I, or Japanese internment camps in World War II, presidents have gone too far.

DURBIN: And, in going too far, they have taken away the individual rights of American citizens.

The last stop to protect those rights and liberties is the Supreme Court. That's why we want to make certain that, when it come to the checks and balances of the Constitution, that you will stand with our founding fathers in protecting us from a government or a president determined to seize too much power in the name of national security.

As a government lawyer, you pushed a policy of legislative construction designed to make congressional intents secondary to presidential intent.

You wrote, and I quote, "The president will get in the last words on questions of interpretation," close quote.

In speeches to the Federalist Society, you've identified yourself as a strong proponent of the so-called unitary executive theory. That's a marginal theory at best, and yet it's one that you've said you believe.

This is not an abstract debate. The Bush administration has repeatedly cited this theory to justify its most controversial policies in the war on terrorism.

Under this theory, the Bush administration has claimed the right to seize American citizens in the United States and imprison them indefinitely without a charge.

They've claimed this right to engage in torture even though American law makes torture are a crime.

Less than two weeks ago, the White House claimed the right to set aside the McCain torture amendment that passed the Senate 90-9.

What was the rationale? The unitary executive theory, which you've spoken of.

In the Hamdi case, Justice O'Connor wrote for the plurality, and it's been quoted many times, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

DURBIN: If you're confirmed, Judge Alito, who will inspire your thinking if this president or any president threatens our fundamental constitutional rights? Will it be the Federalist Society or will it be Sandra Day O'Connor?

Two months ago, Rosa Parks was laid to rest. Her body lie in state in the Capitol Rotunda, a fitting tribute to the mother of our modern civil rights movement. Her courage is well-known.

The courage of federal Judge Frank Johnson, whom we talked about, is well-known as well. He was the one that gave the legal authority for the right to march from Selma to Montgomery, and he suffered dearly for it. He was ostracized and rejected. His life was threatened as a result of it.

When we met in our office, Judge Alito, you told me about how your father as a college student was almost expelled for standing up to the college president who decided that the school basketball team should not use its African-American players against an all-white opponent. That university president didn't want to offend their all- white opponent. But your dad stood up and you were so proud of that moment in your family history.

I admire your father's courage as well. But just as we do not hold the son responsible for the sins of the father, neither can we credit the sun for the courage of the father.

As Supreme Court justice, would you have the courage to stand up for civil rights even if it's unpopular?

We want to understand what you meant in 1985 when you said from the heart that you disagreed with the Warren court on reapportionment, the one-man, one-vote decision.

DURBIN: That was a civil rights decision.

We want you to explain your membership in an organization that you highlighted at Princeton University that tried to challenge the admission of women and minorities.

And I think we want to make certain of one thing: We want to make certain that every American who stood in silent tribute to Rosa Parks hopes that you will break your silence and speak out clearly for the civil rights that define our unity as a nation.

There have been many controversial cases alluded here. Some people have questioned: What's the difference? What difference in my life does it make if Sam Alito is on the bench or if he isn't Why would I care if it's a narrow interpretation or a broad interpretation of the law? How does it affect my life?

We know it affects everyone's life. We were reminded just very recently with a tragedy that was in the headlines. In one of your dissents, you would have allowed a Pennsylvania coal mine to escape worker safety and health requirements required by federal law. Last week's tragedy at the Sago mine reminds us that such a decision could have life-and-death consequences.

Judge Alito, millions of Americans are concerned about your nomination. They're worried that you would be a judicial activist who would restrict our rights and freedoms. During your hearing, you'll have a chance to respond, and I hope you do.

More than any recent nominee, your speeches, your writings, your judicial opinions make it clear that you have the burden to prove to the American people that you would not come to the Supreme Court with any political agenda. Clear and candid answers are all that we ask.

I sincerely hope you can convince the United States Senate and the American people that you will be a fifth vote on the Supreme Court that the American people can trust to protect our most basic important freedoms and preserve our time-honored values.

Thank you very much.

SPECTER: Thank you, Senator Durbin.

Senator Brownback?

BROWNBACK: Thank you, Mr. Chairman.

Welcome, Judge Alito, your wife, family.

BROWNBACK: Delighted to have you here. You only have two more pitcher and then you get a bat. So I'm sure people will be happy to hear from you.

Mr. Chairman, before I go forward with my statement, would like to entire into the record a summary of four cases that Judge Alito has ruled on where he backed employees claiming racial discrimination. It's been entered a couple of times here that he hasn't ruled in favor of people claiming racial discrimination. I have a summary of four cases where he has, and I want to enter that into the record.

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

BROWNBACK: Judge Alito, welcome you to the hearing. This is an extraordinary process. It's a fabulous process and a chance for a discussion with you, with the American public about the role of the judiciary in our society today.

It's become an ever-expanding and important discussion because of the expanding role of the courts in recent years in the American society.

When the courts improperly, I believe, assume the power to decide more political than legal issues in nature, the people naturally focus less on the law and more on the lawyers that are chosen really to administer the law. Most Americans want judges who will stick to interpreting the law rather than making it.

It's beyond dispute that the Constitution and its framers intended this to be the role of judges. For instance, although he was perhaps the leading advocate for expansive political power, you can look at founding father Alexander Hamilton nevertheless assuring -- assuring -- the countrymen in Federalist 78 that the role of the federal courts under the proposed Constitution would be limited.

He says the courts must declare the sense of the law, and if they should be disposed to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure to that of the legislative body.

BROWNBACK: Seems like we're back at an old debate: the role the courts.

And I believe you and others would look and say that the role of the courts is limited and it's not to decide political matters.

Chief Justice Marshall later explained in Marbury v. Madison, the Constitution permitted federal courts neither to write nor execute the laws but rather to say what the law is. That narrow scope of judicial power was the reason that people accepted the idea that the federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.

The people believed that while the courts would be independent, they would defer to the political branches on policy issues.

This is the most foundational and fundamental of issues. And yet we are back and discussing it because of the role of the judiciary expanding in this society today.

It may seem ironic that the judicial branch preserves its legitimacy through refraining from action on political questions. That concept was put forward best by Justice Frankfurter, appointed by President Roosevelt.

He said courts are not representative bodies. They're not designed to be a good reflex of a democratic society. Their judgment is best informed and, therefore, most dependable within narrow limits.

I want to take on this point of the reservation of certain seats on the bench for certain philosophies, which it seems as if we've heard a great deal about today, that you need to be like Sandra Day O'Connor in judicial philosophy to be able to go on her seat on the bench.

Some interest groups have put forward that philosophy and argued that you deserve closer scrutiny because you do not appear to have the same philosophy or are even in opposition if it is not determined that you do not have that same judicial philosophy.

If this testimony suggests that that would change the ideological balance, if you would change the ideological balance, therefore you should not be approved, I would say that that notion is not anywhere in the understanding of the role of the judges.

BROWNBACK: It creates a double standard for your approval and looks conveniently -- it looks suspiciously convenient for the opposition to put forward.

Seats on the bench are not reserved for causes or interests. They're given to those who will uphold the rule of law so long as the nominee is well-qualified to interpret and apply the law.

This has long been the case of the Supreme Court. And I want to note here that, historically, the make-up of the court has changed just as elected branches have change.

In fact, nearly half of the justices, 46 of 109, who have served on the Supreme Court replaced justices appointed by a different political party.

In recent years, even as the court has become an increasingly political body, the Senate is not focused on preserving any perceived ideological balance when Democrat presidents have appointed people to the court.

The best example of that is the Senate rejecting that notion when Ruth Bader Ginsburg came in front of the Senate and was approved 96-3 to be on the Supreme Court to replace conservative justice Byron White. This is in 1993.

Now, Justice Ginsburg, it was noted earlier, was a general counsel for the ACLU, certainly a liberal group. It was abundantly clear during the confirmation hearing that Ginsburg would swing the balance of the court to the left.

But because President Clinton won the election and because Justice Ginsburg clearly had the intellectual ability and integrity to serve on the court, she was confirmed.

BROWNBACK: During her hearing, hardly any mention was made about balance with Justice White. The only discussion occurred about Justice White was when Senator Kohl, our colleague, asked her what she thought of Justice White's career, and she started off by saying that she was not an athlete.

History has shown that she did, in fact, dramatically change the balance of the court in many critical areas, such as abortion, the privacy debate expansion and child pornography. And I have behind me three of the key cases where Justice White ruled one way, even wrote the majority opinion, and Justice Ginsburg ruled the other way, with the majority.

You talk about a swing of balance, and yet the issue wasn't even raised at Justice Ginsburg's confirmation hearing. And yet now it seems as if that's the paramount issue -- not only the paramount issue, it actually makes you have to go to a higher standard to be approved.

And that's just simply not the way we've operated in the past, nor is it the way we should operate now.

As I stated at Justice Roberts' hearing, the court's injected itself into many of the political debates of our day. And as my colleague Senator Cornyn has mentioned, the court's injected itself in the definition of marriage, deciding whether or not human life is worth protecting, permitting government to transfer private property from one person to another, even interpreting the Constitution on the basis of foreign and international laws.

The Supreme Court has also issued and never reversed a number of decisions that are repugnant to the Constitution's vision of human dignity and equality.

Although cases like Brown v. Board of Education in my state are famous for correcting constitutional and court errors, there remain several other instances in which the court strayed and stayed beyond the Constitution and the laws of the United States.

BROWNBACK: Among the most famous of these Supreme Court cases of exercise of political power I believe are the cases of Roe V. Wade and Doe v. Bolton, two 1973 cases based on false statements which created a constitutional right to abortion.

And you can claim whatever you want to of being pro-life or pro- choice, but the right to a abortion is not in the Constitution. The court created it. It created a constitutional right. And these decisions removed a fully appropriate political judgment from the people of the several states and has led to many adverse consequences.

For instance, it's led to the almost complete killing of a whole class of people in America. As I noted to my colleagues in the Roberts' hearings, this year -- this year -- between 80 percent to 90 percent of the children in America diagnosed with Down's Syndrome will be killed in the womb simply because they have a positive genetic test which can be wrong, and is often wrong, but they would have a positive genetic test for Down's Syndrome and they will be killed.

America is poorer because of such a policy. We are at our best when we help the weakest. The weak make us strong. To kill them makes us all the poorer, insensitive, calloused and jaded.

Roe has made it not only possible, but has found it constitutional to kill a whole class of people, simply because of their genetic make-up.

BROWNBACK: This is the effect of Roe.

I think this is a proper issue for us to consider and the judge you're replacing noted one time, quote, "that the court's unworkable scheme for constitutionalizing abortion has had the institutional, debilitating effect should not be surprising -- has had this institutionally debilitating effect and should be surprising since the court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe."

You will have many issues in front of you, many that we won't discuss here in front of this committee.

I think it unfortunate that we only narrow in on so few of the cases that you're likely to hear in front of you, and yet that's the nature of the day because they're the hot, political, heat-seeking cases.

You're undoubtedly qualified. You were cited by the ABA to be unanimously well-qualified.

I look forward to a thorough discussion and a hopeful approval of you to be able to join the Supreme Court of the United States.

Mr. Chairman...

SPECTER: Thank you very much, Senator Brownback.

We now move to the final opening statement.

When we finish the statement of Senator Coburn, we are going to go right to the presenters, Senator Lautenberg and Governor Whitman. So I'd like them to be on notice that we will be doing that in just a few moments.

And following Senator Lautenberg and Governor Whitman, we'll be hearing from Judge Alito.

Senator Coburn, the floor is yours.

COBURN: Thank you.

Judge Alito, welcome.

I know you're tired of this and I'll try to be as brief as possible.

One of the advantages of going last is to be able to hear what everybody else has said.

COBURN: And as I've listened today, we've talked about the unfortunate, the frail. The quotes have been "fair shake for those that are underprivileged." We've heard "values, strong, free and fair, progressive judiciary." We've heard "the vulnerable, the more unvulnerable (sic), the weak, those who suffer." We've heard of an Alito mold that has to be in the mold of somebody else.

And as a practicing physician, the one disheartening thing that I hear is this very common word, this "right to choose" and how we sterilize that to not talk about what it really is.

I've had the unfortunate privilege of carrying over 300 women who've had complications from this wonderful right to choose to kill their unborn babies. And that's what it is: It's the right of convenience to take the life.

And the question that arises as we use all these adjectives and adverbs to describe our physicians as we approach a Supreme Court nominee is where are we in America when we decide that it's legal to kill our unborn children?

I mean, it's a real question for us. I debate honestly with those who disagree with me on this. It is a real issue, a measurement of our society, when we say it's fine to destroy unborn life who has a heartbeat at 16 days post-conception. Thirty-nine days post- conception you can measure the brain waves and there's pain felt.

The ripping and tearing of an unborn child from his mother's womb through the hands of another, and we say, "That's fine; you have a constitutional right to do that."

How is it that we have a right of privacy and due process to do that but you don't have the right, as rejected unanimously by the Supreme Court in 1997, to take your own life in assisted suicide?

COBURN: You know, how is it that we have sodomy protected under that due process but prostitution unprotected? It's schizophrenic. And the reason it's schizophrenic is there's no foundation for it whatsoever other than a falsely created foundation that is in error.

I don't know if we'll ever change that. It's a measure of our society.

But the fact is that you can't claim, in this Senate hearing, to care for those that are underprivileged, to those that are at risk, to those that are vulnerable, to those that are weak, to those that suffer and, at the same time, say I don't care about those who have been ripped from the wombs of women and the complications that have come about throughout that.

So, the debate, for the American public -- and the real debate here is about Roe.

We're going to go off in all sorts of directions, but the decisions that are going to be made on votes on the committee and the votes on the floor is going to be about Roe, whether or not we as a society have decided that this is an ethical process, that we have this convenient process that if we want to rationalize one moral choice with another, we just do it through abortion, this taking of the life, of life of an unborn child.

I asked Chief Justice Roberts about this definition of life -- you know, what is life? The Supreme Court can't figure it out or doesn't want us to figure it out; the fact that we know that there is no life if there's no heartbeat and brainwaves. We know that in every state and every territory. But when we have heartbeat and brain waves, we refuse to accept it as the presence of life -- this lack of logic of which we approach this issue because we like and we favor convenience over ethics. We favor convenience over the hard parts of life that actually make us grow.

Senator Brownback talked about those with disabilities that are destroyed in the womb because of a genetic test that is sometimes wrong. I would put forward that we all have disabilities.

Some of us, you just can't see it. And yet, who makes the decisions as to whether we're qualified or not?

COBURN: We've gone down a road to which we don't have the answers for. That's why we have the schizophrenic decisions coming out of the Supreme Court that don't balance logically with one versus another decision.

So my hope, is as we go through this process, let's not confuse it with the easy words and really be honest and straightforward about what this is about.

I firmly believe that the court should take another direction on many of these moral issues that face us. If we're to honor the heritage of our country, whether it be in terms of religious freedom, whether it be in terms of truly protecting life, protecting not just the unborn but who comes next, the infirm, the elderly, the maimed, the disabled -- that's who comes next as we get into the budget crunch of taking care of those people in the years -- I believe we ought to have that debate honest and openly.

But the fact is, is we're going to cover it with everything except the real fact is we've made a mistake going down that road in terms of saying we can destroy our unborn children and there's no consequences to it.

So I welcome you.

This is a difficult process for you and your family. I am hopeful that you will be treated fairly.

I'm very disturbed at the picture that was painted by Senator Kennedy that you're not a man of your word, that you're dishonest. The implication that you're not reliable I don't think is a fair characterization of what I've read.

And I look forward to you being able to giving answers, as you can, to your philosophy.

The real debate is we've had an activist court, and the American people don't want an activist court. And the real fear from those who might oppose you is that you'll bring the court back within a realm where the American people might want us to be with a Supreme Court; one that interprets the law, equal justice under the law, but not advancing without us advancing, the legislative body advancing, ahead of you.

I welcome you.

I return the balance of my time and I look forward for your introduction and your opening statement.

SPECTER: Thank you very much, Senator Coburn.

We will now turn to our presenting witnesses, Senator Lautenberg and Governor Whitman.

SPECTER: In accordance with our standing rules of the committee, the presenters will each have five minutes. They've been so informed.

And we first welcome our colleague Senator Frank Lautenberg to present Judge Alito.

LAUTENBERG: Thank you, Mr. Chairman and Senator Leahy, colleagues on this committee. Thank you for the opportunity to testify here today.

Jon Corzine, U.S. senator and now governor-elect in New Jersey, wanted to be here, but transition duties in Trenton prevent him from doing so.

Now, I've been honored to serve in the United States Senate for 21 years. And I'm convinced that our duty to provide advice and consent for justices of the Supreme Court is our most important constitutional responsibility.

Our mandate is to be a nation of laws. And the Supreme Court is the place where we look to safeguard our civil rights and our individual liberties.

But I believe that justices must recognize that our Constitution is an 18th-century document that needs to be applied in the context of the 21st century.

We also depend on the Supreme Court to uphold the integrity of our government.

So I'm privileged to have the opportunity today to introduce Sam Alito Jr. to this committee, and his beautiful family that he brought along to fortify his candidacy.

Judge Alito was born and raised in the great state of New Jersey. Our state has a legacy of producing outstanding jurists, most notably the late William J. Brennan, who ushered in our nation's recommitment to civil rights in the latter half of the 20th century.

Another distinguished jurist, Justice Antonin Scalia, also was born in New Jersey.

LAUTENBERG: In 1950, Sam Alito was born in our state's capital city, Trenton, New Jersey, to a family of worthy achievement.

Justice -- or Judge Alito's father; I'm moving too quickly here. Judge Alito's father was an immigrant from Italy who taught history in high school and later ran the New Jersey Office of Legislative Services, which is similar to our own Congressional Research Service, in that it provides objective, unbiased information to the legislature.

Judge Alito's mother was a librarian, teacher and a school principal. And she is now 91 and still, as I understand, residing in the family home in Hamilton, New Jersey.

From his parents, Judge Alito learned the importance of education and integrity.

Judge Alito and his sister went to public school in Hamilton, New Jersey, where they both joined the debating team. It seemed like the debating experience paid off, as both he and his sister have excelled in the legal profession.

Sam Alito then went on to Princeton University, where his yearbook entry predicted that one day he would warm a seat on the Supreme Court.

He graduated from Yale Law School 1975 and then served as a clerk for Circuit Court Judge Leonard Garth, with whom he currently serves.

In 1977, Sam Alito joined the U.S. Attorney's Office in Newark, where he met his future wife, Martha, who is present here today. They later moved to Washington, where Sam Alito served as an assistant to the solicitor general and later in the Department of Justice Office of Legal Counsel.

In 1987, Judge Alito returned home to New Jersey after President Reagan appointed him U.S. attorney for the District of New Jersey. He was a strong prosecutor and nobody was surprised when President George H.W. Bush appointed him to the 3rd Circuit Court in 1990.

And I had the privilege of introducing him then, as well.

LAUTENBERG: Judge Alito's accomplishments in life are the embodiment of the American dream. I'm honored today to introduce him to the committee.

He's a young man. If the Senate confirms him for a lifetime appointment to the Supreme Court, he could serve for three decades or even longer, especially judging it from my point of view.


His decisions would affect our rights, the rights of our children, our grandchildren and other future generations.

Mr. Chairman, you know it well. It is the job of this committee to evaluate Judge Alito's qualifications and fitness for the court, including his views on legal issues. And I know every member of the committee takes that obligation seriously.

And I trust that Judge Alito will be forthcoming and cooperative in this process. I've had a chance to meet him. I know that he responds to the questions that I put to him. Maybe they were too easy, but he responded very well to them.

And I thank you, Mr. Chairman. I'm pleased to be here with our former governor, Christine Whitman. And we haven't sat at a table together for a long time, but it's a good opportunity to do so.

Thank you.

SPECTER: Senator Lautenberg, do you care to make a recommendation on the nominee?


LAUTENBERG: I care to present the evidence, just the evidence, Mr. Chairman, and we'll let the record speak for itself.

SPECTER: Our next presenter is Governor Whitman, distinguished, two-term governor for the State of New Jersey, Cabinet of President Bush as administrator of the Environmental Protection Agency.

We welcome you here, Governor Whitman, and look forward to your testimony.

WHITMAN: Thank you, Mr. Chairman. It's a pleasure to be here today with Senator Lautenberg to introduce Judge Samuel A. Alito Jr.

I do urge your support for his nomination to the Supreme Court.

WHITMAN: I won't go into his family background -- Senator Lautenberg has done that -- save to mention one member of the family that he didn't, which is that the judge's sister, Rosemary, is a nationally recognized employment attorney, and someone who's recognized as part of a family that has devoted itself to public service and continues to do that.

Judge Alito personifies the motto of his -- the civic pride embodied in the slogan of his hometown: "Trenton makes, the world takes."

And with the consent of the Senate, one of the most important bodies in the world, the United States Supreme Court, can take a proud product of Trenton, New Jersey, into their chambers.

But I'm not here to discuss President Alito's family background or his state ties. I'm here to discuss his own history of achievement and his potential to be a great associate justice of our Supreme Court.

Sam Alito has excelled at everything he has undertaken. He was an exceptional student at Princeton University and Yale Law School, an outstanding young attorney at the Justice Department, an accomplished United States attorney, and for the past 15 years has been a respected and exemplary federal appeals court judge.

The American Bar Association just gave him their highest rating for his seat as justice. And in his past two appearances before the Senate for confirmation, he has received unanimous support.

There is, however, more to my support of Judge Alito. Like other Americans, I have read many articles dissecting positions Judge Alito has taken throughout his career trying to discern how he might decide on issues likely to appear before the Supreme Court that he would confront as a justice. I, too, have examined the record.

In the final analysis, my decision to support Judge Alito for this position is not based on whether I agree with him on a particular issue or set of issues, or on his conformity with any particular political ideology. In fact, while we may agree on some political issues, I know there are others on which we disagree.

Nevertheless, one's agreement or disagreement on political questions is after all ultimately irrelevant to the issue of whether or not Judge Alito should serve as an associate justice of the Supreme Court.

WHITMAN: The court's role is not to rule based on justices' personal persuasions, rather on persuasive arguments grounded on fact, those facts presented in that particular case, and on their interpretation of the Constitution.

Those decisions are, of course, grounded in the hard reality of disputed fact and the messiness of the real world. But they are also guided by principles of law and justice which have long been treasured by the people of this country.

We should look for justices who understand that instinctively in the very core of their being.

I saw this trait on Judge Alito when he served on the appeals court during my terms as governor. And I have every reason and every confidence that he will exhibit the same as a Supreme Court justice.

Policy in the United States is defined through the laws crafted by the legislative branches of government and carried out by the executive. Our judges make decisions based on their interpretation of the intent of those laws.

We don't want justices to conform their decisions to ideologies. We do want justices whose opinions are shaped by the facts before them and by their understanding of the Constitution.

We should also look for justices who possess the necessary qualities of intellect and humility desirable in those with great responsibility and who can express their thinking clearly and in understandable language.

While we should expect that justices will hold philosophies that will guide their decisions, we should equally expect that they will not hold ideologies that will predetermine their decisions. That is the genius of our system.

Mr. Chairman, some have suggested that Judge Alito has an ideological agenda. I believe that an honest and complete review of his record as a whole will find that his only agenda is fidelity to his judicial craft.

If Judge Alito has a bias, it's in favor of narrowly drawn opinions that respect precedent and reflect the facts before him.

WHITMAN: Members of the committee, yours is an extraordinary responsibility. Decisions by our Supreme Court will affect the lives of Americans for generations to come.

As politicians, whether current or retired, we all have deeply held positions we want to protect. When I was governor, it fell to me five times to appoint members of the New Jersey State Supreme Court.

One thing that experience taught me was that it is virtually impossible to find judges who will act as you would act were you in their position. That's as it should be.

Your responsibility is, to the extent possible, to determine whether or not the nominee before you has the legal background, intelligence and integrity to be a credit to the court.

Sam Alito has been a model as a federal appeals court judge. He has shown that he has the intellect, the experience and the temperament to serve with true distinction.

I have every confidence he will be a balanced, fair and thoughtful justice. I urge this committee to favorably report his nomination to the United States Senate.

Thank you very much.

SPECTER: Thank you very much, Governor Whitman. Without objection, the statement of Senator Corzine will be made a part of the record.

We appreciate your coming, Senator Lautenberg.

We appreciate your coming, Governor Whitman.

And now, Judge Alito, if you will resume center stage.

We now come to the -- you can remain standing. We've come to the formal swearing in of a nominee. I count 41 cameras in the well.


And, just behind you, a grouping of cameras of seven in number. And I see three more, so you're well up to 50, which exceeds the number present, only 28 for Chief Justice Roberts, so that may be an omen.

I'm stalling for time a little bit here to allow the photographers to position themselves.


SPECTER: They have sat patiently -- impatiently all day.

We may move the swearing in to the beginning of the ceremony in the future so they can all go out and do something productive.


But if you would raise your right hand.

Do you solemnly swear that the testimony you will give before the Committee of the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God.

ALITO: I do.

SPECTER: Thank you, Judge Alito. You may be seated.

And we welcome whatever opening comments if you care to make them.

ALITO: Thank you very much, Mr. Chairman. I am deeply honored to appear before you.

I am deeply honored to have been nominated for a position on the Supreme Court. And I an humbled to have been nominated for the seat that is now held by Justice O'Connor.

Justice O'Connor has been a pioneer, and her dedicated service on the Supreme Court will never be forgotten. And the people of the country certainly owe her a great debt for the service that she has provided.

I'm very thankful to the president for nominating me, and I'm also thankful to the members of this committee and many other senators who took time from their busy schedules to meet with me. That was a great honor for me, and I appreciate all of the courtesies that were extended to me during those visits.

And I want to thank the Senator Lautenberg and Governor Whitman for coming here today and for their kind introductions.

During the previous weeks, an old story about a lawyer who argued a case before the Supreme Court has come to my mind, and I thought I might begin this afternoon by sharing that story.

ALITO: The story goes as follows.

This was a lawyer who had never argued a case before the court before. And when the argument began, one of the justices said, "How did you get here?," meaning how had his case worked its way up through the court system. But the lawyer was rather nervous and he took the question literally and he said -- and this was some years ago -- he said, "I came here on the Baltimore and Ohio Railroad."

This story has come to my mind in recent weeks because I have often asked myself, "How in the world did I get here?" And I want to try to answer that today and not by saying that I came here on I-95 or on Amtrak.

I am who I am, in the first place, because of my parents and because of the things that they taught me.

And I know from my own experience as a parent that parents probably teach most powerfully not through their words but through their deeds. And my parents taught me through the stories of their lives. And I don't take any credit for the things that they did or the things that they experienced, but they made a great impression on me.

My father was brought to this country as an infant. He lost his mother as a teenager. He grew up in poverty.

Although he graduated at the top of his high school class, he had no money for college. And he was set to work in a factory but, at the last minute, a kind person in the Trenton area arranged for him to receive a $50 scholarship and that was enough in those days for him to pay the tuition at a local college and buy one used suit. And that made the difference between his working in a factory and going to college.

After he graduated from college in 1935, in the midst of the Depression, he found that teaching jobs for Italian-Americans were not easy to come by and he had to find other work for a while.

But eventually he became a teacher and he served in the Pacific during World War II. And he worked, as has been mentioned, for many years in a nonpartisan position for the New Jersey legislature, which was an institution that he revered.

ALITO: His story is a story that is typical of a lot of Americans both back in his day and today. And it is a story, as far as I can see it, about the opportunities that our country offers, and also about the need for fairness and about hard work and perseverance and the power of a small good deed.

My mother is a first generation American. Her father worked in the Roebling Steel Mill in Trenton, New Jersey. Her mother came from a culture in which women generally didn't even leave the house alone, and yet my mother became the first person in her family to get a college degree.

She worked for more than a decade before marrying. She went to New York City to get a master's degree. And she continued to work as a teacher and a principal until she was forced to retire.

Both she and my father instilled in my sister and me a deep love of learning.

I got here in part because of the community in which I grew up. It was a warm, but definitely an unpretentious, down-to-earth community. Most of the adults in the neighborhood were not college graduates. I attended the public schools. In my spare time, I played baseball and other sports with my friends.

And I have happy memories and strong memories of those days and good memories of the good sense and the decency of my friends and my neighbors.

And after I graduated from high school, I went a full 12 miles down the road, but really to a different world when I entered Princeton University. A generation earlier, I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton. But, by the time I graduated from high school, things had changed.

And this was a time of great intellectual excitement for me. Both college and law school opened up new worlds of ideas. But this was back in the late 1960s and early 1970s.

ALITO: It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.

I'm here in part because of my experiences as a lawyer.

I had the good fortune to begin my legal career as a law clerk for a judge who really epitomized open-mindedness and fairness. He read the record in detail in every single case that came before me; he insisted on scrupulously following precedents, both the precedents of the Supreme Court and the decisions of his own court, the 3rd Circuit.

He taught all of his law clerks that every case has to be decided on an individual basis. And he really didn't have much use for any grand theories.

After my clerkship finished, I worked for more than a decade as an attorney in the Department of Justice.

And I can still remember the day, as an assistant U.S. attorney, when I stood up in court for the first time and I proudly said, "My name is Samuel Alito and I represent the United States in this court." It was a great honor for me to have the United States as my client during all of those years.

I have been shaped by the experiences of the people who are closest to me, by the things I've learned from Martha, by my hopes and my concerns for my children, Philip and Laura, by the experiences of members of my family, who are getting older, by my sister's experiences as a trial lawyer in a profession that has traditionally been dominated by men.

And, of course, I have been shaped for the last 15 years by my experiences as a judge of the court of appeals.

During that time, I have sat on thousands of cases -- somebody mentioned the exact figure this morning; I don't know what the exact figure is, but it is way up into the thousands -- and I have written hundreds of opinions.

And the members of this committee and the members of their staff, who have had the job of reviewing all of those opinions, really have my sympathy.


I think that may have constituted cruel and unusual punishment.


I've learned a lot during my years on the 3rd Circuit, particularly, I think, about the way in which a judge should go about the work of judging. I've learned by doing, by sitting on all of these cases. And I think I've also learned from the examples of some really remarkable colleagues.

When I became a judge, I stopped being a practicing attorney. And that was a big change in role.

The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way. A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client.

The judge's only obligation -- and it's a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.

Good judges develop certain habits of mind. One of those habits of mind is the habit of delaying reaching conclusions until everything has been considered.

Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument that's made by an attorney who's appearing before them, or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case.

It's been a great honor for me to spend my career in public service. It has been a particular honor for me to serve on the court of appeals for these past 15 years, because it has given me the opportunity to use whatever talent I have to serve my country by upholding the rule of law.

And there is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.

Fifteen years ago, when I was sworn in as a judge of the court of appeals, I took an oath. I put my hand on the Bible and I swore that I would administer justice without respect to persons, that I would do equal right to the poor and to the rich, and that I would carry out my duties under the Constitution and the laws of the United States.

And that is what I have tried to do to the very best of my ability for the past 15 years. And if I am confirmed, I pledge to you that that is what I would do on the Supreme Court.

Thank you.

SPECTER: Thank you very much, Judge Alito, for those opening comments.

We will adjourn at this point and we will resume tomorrow morning at 9:30 when we will start the first round of questioning with each senator on round one having 30 minutes.

Return to Part I of the transcript.

Courtesy FDCH e-Media

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