Transcript

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

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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.

Courtesy FDCH e-Media


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