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

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

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

SPECTER; The Judiciary Committee hearings will resume.

We'll turn now to Senator Kyl, who has 20 more minutes on his first round of 30 minutes.

Senator Kyl?

KYL: Thank you, Mr. Chairman.

First, let me ask unanimous consent to put three items in the record. One of these items related to -- actually, two of them relate to the matter of the CAP that we've heard something about.

I'd like to enter into the record two letters by Democratic attorneys that make clear that Judge Alito has been extremely helpful in advancing the interests of women and minorities.

One letter notes that as U.S. attorney he put women and minorities in supervisory positions. The other is from a president- elect of the National Bar Association for Women.

And also a Washington Post article from January 9th in which a criminal defense attorney and Democrat Alberto Rivas, who served in the U.S. Attorneys Office when Judge Alito was in charge, said -- speaking of the judge -- "While he opposed numeric hiring quotas, he took steps to diversity an office that had the reputation as something of a white boys club."

Mr. Chairman, I hope that this will help address what I think is almost getting to be a...


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

KYL: Thank you.

Secondly, there has been some discussion of this Knight-Ridder article that has, to my understanding, been rather completely discredited.

And I ask unanimous consent that the detached document analyzing that article be added to the record.

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

KYL: And before the break, Senator Biden suggested that -- at least I understood him to suggest that there was no reason to belong to this organization CAP in 1985 because ROTC was safely on campus at that time.

Judge, let me ask you a question. Do you know what year you joined the CAP?

ALITO: I don't know, Senator. I've tried to wrack my memory about that.

But as I said, if I'd been active in my membership, I think I certainly would remember that.

ALITO: And if I had renewed the membership, I think I would remember that.

So my best reconstruction of this is it was probably sometime around the time when I wrote that statement.

KYL: Long after you were gone from the school?

ALITO: That's correct.

KYL: In that event, Mr. Chairman, I ask unanimous consent to include an article from a campus newspaper, The Princeton Packet, dated February 12, 1985, which expressly explains that ROTC was a core motivation behind the CAP in 1985.

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

KYL: Thank you, Mr. Chairman.

I noted with interest a comment that Senator Durbin made in his opening statement because it referred to a good friend and former colleague of ours, Senator Simon, who put forth a pretty good test about courts.

He said that the real test is, is the court restricting freedom or expanding it?

And I thought about that because it seems to me that so many of these cases about expanding freedom or restricting it are cases that boiled down to the eye of the beholder.

And I specifically thought about the 9th Circuit case -- because my status from the 9th Circuit -- outlawing "under God" in the Pledge of Allegiance, saying that that's unconstitutional.

And I checked: According to one survey that I had access to, 93 percent of the American people support the right to say "under God" in the Pledge of Allegiance.

And I know that the plaintiff in the case, Michael Newdow, thought that he was advancing his freedom or his daughter's freedom in successfully getting the court to strike it down, but it seems to me that the majority of the people are having their freedom restricted in such a case.

And it seems to me -- and I certainly will not ask you because that case could well come before the court again; I wouldn't ask you how you would rule on it.

But as a general proposition, this matter of restricting freedom, is it not the case that in many situations you've got two competing types of freedom liberty involved and it's a question of interpreting the Constitution rather than specifically setting out to advance one sort of freedom as opposed to another?

ALITO: I think that's exactly right, Senator. Often, there are conflicting freedoms and that makes the case difficult.

KYL: Let me ask you, too, there was a concern expressed by Senator Biden that the big factor in your nomination, in his view, was the fact that you would be replacing Justice Sandra O'Connor, and that that might mean that you would change the direction of the court. That's the concern expressed, anyway.

KYL: Now as has been famously said, I know Justice O'Connor. I've been a friend of hers for at least 30 years and I don't think she is any kind of a liberal member of the court. She might properly be called moderately conservative. I'm not sure how she would characterize herself.

But I noted that of the 109 justices to sit on the Supreme Court, nearly half -- 46 to be exact -- have replaced judges appointed by another political party.

So it is not at all uncommon -- indeed, it is almost half the situations in which a different party nominates the justice replacing a sitting judge or justice. And one might expect, therefore, some difference.

But I checked the record, because this had been brought up by Senator Brownback yesterday, and I found -- in the nomination of Justice Ginsburg and the confirmation hearings there -- she replaced Justice White, who I think rightly has been called a centrist on the court; certainly not a liberal.

And yet I saw not one expression of concern by any senator, Democrat or Republican, that Justice Ginsburg might be ruling quite a bit differently than Justice White in decisions in the court.

So it seems to me that that is not a test that is rightly applied. That's their results-oriented test, exactly the same kind of thing that you have said that judges shouldn't do when they approach cases.

Let me get to a point that Senator Kennedy made.

KYL: He said that you'd been overly deferential to executive power and criticized what he called -- and I think I have this quotation exactly -- your "almost total disregard of the impact of these powers on the rights of individuals."

I'd like to know what your response is to that charge and whether you can cite some specific cases that would refute what he said.

ALITO: Certainly, Senator.

I've tried to decide every case on its own merits. And sometimes that means siding with the government and sometimes it means siding with the party who's claiming a violation of rights. And I do it on an individual basis.

Cases that show that I do that are cases like United States v. Kithcart, which was the case in which an African-American man had been stopped by police officers because there had been a description of some robbery suspects and the perpetrator was described as a black man in a black car, and Mr. Kithcart was a black man in a black car. And they thought that was sufficient to stop the car.

I wrote an opinion saying that was insufficient and that was basically racial profiling and was not permitted.

Another example was Bolden v. Southeastern Pennsylvania Transportation Authority, which had to do with a drug test. And I found that the tests there constituted a search and a seizure and would be a violation absent consent on the part of the party who was searched.

ALITO: There have been a number of criminal cases in which I have sided with the person claiming a violation of rights.

Carpenter v. Vaughn was a case in which I wrote an opinion reversing a death -- I joined an opinion reversing a death penalty. The Braunstein case was another case that came up fairly recently in which I joined an opinion reversing a death penalty.

There have been quite a few cases of this nature, Senator.

KYL: I noted a tax case, too, or a case involving tax evasion, Leveto v. Lapina. Do you remember that 2001 case?

ALITO: I do.

That was the case in which there was a search of I believe it was the office of a veterinarian. And in a way, that is a similar case to the Mellot (ph) case that I was discussing earlier. Although, in Mellot (ph) I thought that the search was carried out properly.

In the Leveto case, on the facts of that case, I thought the search was not carried out properly; that the officers violated the Fourth Amendment in the way they went about carrying out that search. They forced the occupants of these premises to remain on the premises for a very extended period of time while the search was being conducted and violated their Fourth Amendment rights. And that's what I said in the opinion.

KYL: Do you have an idea of how many cases that you've -- that have gone to decision that you have participated in on your 15 years as a Circuit Court judge?

ALITO: I think it's well over 4,000 on the merits.

KYL: And, I mean, I suspect that in those -- of those 4,000 cases, there might be one or two that I disagree with your decisions on, maybe even more than that.

KYL: But the point here is there are numerous cases in which you have found that the government acted improperly in criminal law context, in warrant context, in discrimination context, in other cases in which you have found either that the government acted properly or that, at a minimum, government officials were entitled to some immunity with respect to being privately sued. Is that correct?

ALITO: That's correct, Senator.

KYL: Let me also address this question of discrimination, especially racial discrimination. This is a matter that was discussed in some prior questioning, and specifically in Senator Biden's questions. It dealt with the Sheridan case in which you were the sole dissenter.

In the subsequent United States Supreme Court case, the Reeves decision, my understanding from your answer is that the Supreme Court addressed the same issue of law that you and your colleagues had disagreed about and that the U.S. Supreme Court voted unanimously in an opinion written by Justice O'Connor that the test that you used in the Sheridan case was the correct test to use. Is that correct?

ALITO: Yes, correct, Senator. That is correct.

KYL: Now, there are some other cases involving employees claiming racial discrimination that I've looked at. And one of the senators seemed to suggest, in a comment that he made, that you had never written opinions or decided cases for a black plaintiff. Is that a fair statement?

ALITO: No, it's not accurate.

KYL: Do you recall cases in which you upheld the discriminatory claims of racial minorities?

ALITO: Well, there was a case of Goosby v. Johnson & Johnson and that case can be considered together with the Bray case that I was discussing before the break.

ALITO: Those were both cases in which my colleague, Judge McKee, wrote the opinion, and in the Goosby case I agreed with him. It was a similar case. But it was a case where I thought the facts fell on the other side of the line.

There was a case called Smith v. Davis, which was another case where I joined an opinion upholding the claim of an African American who was claiming racial discrimination.

The Robinson case involved claims of race and gender discrimination, as I recall. There are a number of cases in the criminal law context. I just mentioned the Kithcart case. There was Brenson case. There was Williams v. Price.

There have been many cases involving other forms of discrimination, age discrimination -- the Showalter case. Disability discrimination -- the Manzalusci (ph) case. The case of Shapiro v. Lakewood Township. There was Zubi v. AT&T, which was a case involving the statute of limitations for a claim of racial discrimination.

KYL: And you were the lone dissenter in that case, is that correct?

ALITO: I was the dissenter in that case...

KYL: And your position was what?

ALITO: My position was that -- the majority's position was that the claim had to be thrown out because of the statute of limitations had been violated. And my position was that the claim should be allowed to go forward because the statute of limitations was longer than the majority had recognized.

And that issue later went to the Supreme Court in a case called Jones v. Donnelly. And the Supreme Court agreed with my position that the longer statute of limitations applied.

KYL: I note there was another case involving an African American woman who claimed that their coworkers had made racial and sexual slurs against her, denied her training opportunities, and so on. And you ruled that she was entitled to $124,000 in damages and attorneys' fees -- a case called Reynolds v. USX Corporation. Do you remember that case?

ALITO: That's right, Senator.

KYL: So the bottom line is there are numerous cases in which you have ruled in favor of minorities -- in particular, African Americans -- in discrimination situations, and also where you've dissented in a situation in which your position was to support the claim of discrimination; and that it would be inaccurate to say that you have not taken that position in the 4,000 plus cases that you have decided.

Is that correct?

ALITO: That's certainly correct, Senator.

KYL: Now there's been a lot of talk about precedent and stare decisis. It's certainly something that we lawyers are familiar with. We regard it as key principle in deciding cases.

KYL: There was a case that was mentioned by a couple of my Democratic colleagues that I'm sure will be discussed further.

But I thought I'd give you an opportunity to talk about it because it certainly seemed to me to be a case in which you were trying to apply Supreme Court precedent, the precedent being the Lopez v. United States case; a case, by the way, in which I note that it was one of those decisions that Justice O'Connor was in the majority, a 5- 4 decision in which her position could be characterized as the swing vote.

Now, you, in United States v. Rybar, agreed with Justice O'Connor in the way that law should be applied relative to intrastate possession of a weapon.

The Lopez case dealt with a congressional act that said that weapons should not be possessed near schools. The court struck that down, saying that that went beyond the commerce clause capability of commerce to legislate in matters of interstate commerce.

In Rybar, what was the issue, you dissented.

By the way, one of the reasons why this case is interesting to me because the 9th Circuit Court of Appeals, again, which is my circuit, has subsequently ruled -- and this is not a conservative court in most people's estimation -- recently agreed with your dissent in a case called U.S. v. Stewart (ph), a 2003 case in which the court overturned the defendant's conviction under the very same statute, holding that the law exceeded Congress's commerce powers.

So it seems to me that it would be hard to argue that your position is, per se, unreasonable. But could you describe in your own words?

ALITO: Well, my position in Rybar was really a very modest position. And it did not go to the question of whether Congress can regulate the possession of machine guns.

In fact, I explained in the opinion that it would be easy for Congress to do that in a couple of ways that differed from the way in which it was done in Rybar.

The statute in Rybar was very similar to the statute that was at issue in Lopez. In fact, I think they are the only two federal firearms statutes that have been cast in that mold.

They simply prohibited the possession of firearms without either congressional findings concerning the effect of the activity on interstate commerce or a jurisdictional element.

And I knew from my experience as a federal prosecutor that most of the federal firearms statutes have a jurisdictional element right in the statute. And what that means is that when the prosecutor presents the case in court, the statute that's used most frequently is the statute that makes it a crime for someone who has been convicted of a felony to possess a firearm.

In that case, when the prosecutor presents the case in court, the prosecutor has to show that the defendant has been convicted of a felony and that the firearm in question had some connection with interstate commerce.

Under Supreme Court precedent, a case called Scarborough, all that's necessary is to show that the firearm at some point in its history passed an interstate or foreign commerce: it was manufactured in one state and then later turned up in another state or manufactured in a foreign country and brought to the United States.

From my experience, this was never a practical problem and this was how all the federal firearms statutes had been framed.

ALITO: But for whatever reason, the statute in Lopez and the statute in Rybar were lacking that jurisdictional element.

So an easy way in which Congress could regulate the possession of a machine gun would be to insert a jurisdictional element. And as I just pointed out, in my experience as the U.S. attorney in New Jersey, that was never a practical problem.

The Supreme Court in Lopez said that there were three reasons why there was a problem with the statute there.

And that case had been decided the year before. And it was my obligation, as a lower court judge, to follow it.

The first was that it involved what the court characterized as a noncommercial activity, and that was the possession of a firearm. And, of course, that was the exactly the same activity that was at issue in Rybar.

The second was the absence of a jurisdictional element, and there was no jurisdictional element in either statute.

And the third was the absence of a congressional finding connecting the activity that was being regulated within interstate commerce.

And I pointed out in my opinion that I would have viewed the Rybar case very differently if there had been a congressional finding or if the Justice Department, in presenting its argument to us, had been able to point to anything that showed that there was a substantial effect on interstate commerce, which is what the Supreme Court says is required.

KYL: So this is one of those situations in which, if the result was not was intended, you were willing to point out in your decision what Congress could relatively easily have done to get the result that it appeared that Congress wanted to achieve?

ALITO: That's exactly correct.

KYL: Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Kyl.

Senator Kohl?

KOHL: Thank you very much, Mr. Chairman.

Judge Alito, we heard a lot of discussion yesterday about the proper role of the judge in our system.

KOHL: Some said that a judge should favor neither the, quote, "big guy or the little guy, but simply apply the law and not make the law."

Based on what you said yesterday, I believe that you would agree generally with this characterization.

However, to me, it's not quite so simple. Just as no two umpires call the same game exactly, no two judges see a case in exactly the same way. Laws and the Constitution are often ambiguous and capable of many interpretations. Those interpretations are the result of judges with different judicial philosophies. Some judges have a more liberal judicial philosophy, while others are more conservative.

And we're here trying to figure out what your judicial philosophy is. That's probably the principal point of this hearing.

If the law were so simple we would not have as many 5-4 decisions.

It seems to me that many of the most fundamental protections of civil rights and civil liberties that we take for granted today -- things such as school integration, the principle of one person, one vote, the principle that the accused have a right to a lawyer in criminal cases, and the right of contraception, just to name a few -- have come when judges have been willing to look beyond rigid legal doctrines that prevailed at the times of those rulings.

The neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress, right historic wrongs and protect civil liberties so essential to our democracy.

So isn't it true, Judge Alito, that a neutral judge would never have reached these conclusions? In fact, for decades, courts did not reach these conclusions.

So would you agree that these cases were rightly decided, number one; and required, number two, that judges apply a more expansive, imaginative view of the Constitution?

ALITO: I think that the Constitution contains both some very specific provisions, and there the job of understanding what the provision means and applying it to new factual situations that come up is relatively easy.

The Constitution sets age limits, for example, for people who want to hold various federal offices and there can't be much debate about what that means or how it applies.

But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary.

I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.

They have to identify the principle that is to be applied under these broader provisions of the Constitution and apply it, but I don't see that as being the same thing as the judges injecting his or her policy views or preferences or ideas about the direction in which the society should be moving into the decision-making process.

KOHL: These decisions to which I just referred pushed society into new directions. And they came about -- didn't they? -- as a result of the Supreme Court's willingness to look at the Constitution in perhaps a different and a new way and take a new approach and a new avenue, which is not entirely consistent with a neutral judge simply applying the law.

KOHL: The law is the law. It's not hard to find that out, as you somewhat suggested, that you're an umpire. A ball is a ball; a strike is a strike.

I'm suggesting that it's -- and I would like to hope you would agree that it's somewhat if not a lot more complex and sophisticated. If it weren't true, we could have a lot of views here today.

I think you're unique in many ways. And part of that is your complexity, your sophistication, your ability to look at the Constitution and, if necessary, see new meanings that weren't seen there before. Isn't that true?

ALITO: Well, Senator, I would never say that it is an easy process. There are some easy cases, but there are lot of very difficult cases. And once you have identified the principle, the job of applying it to particular cases is often not easy at all.

But what the judge has to do is make sure that the judge is being true to the principal that is expressed in the Constitution and not to the judge's principle, not to some idea that the judge has.

And sometimes this results in ground-breaking decisions; sometimes that is because new issues come up. Sometimes it is because the principle that is embodied in a constitutional provision has long been neglected.

That was certainly true with respect to the equal protection clause. There was a long period between Plessy v. Ferguson and Brown v. Board of Education when the true meaning of the equal protection clause was not recognized in the decisions of the Supreme Court.

ALITO: And when Brown was finally decided, that was not an instance of the court changing the meaning of the equal protection clause; it was an instance of a court writing an incorrect interpretation that had prevailed for a long period of time.


Judge Alito, one of the ways you get at a person's judicial philosophy is to look at the people whom they admire.

In an interview that you gave in 1988, you were asked about your thoughts about Judge Robert Bork's nomination and you said, and I quote, "Judge Bork was one of the most outstanding nominees of this century," unquote.

Many Americans do not share Judge Bork's narrow views about the Constitution, views that would undermine many of the rights that we now take for granted, Judge Alito.

Judge Bork thought that Americans had no constitutional right to use contraception, saying, and I quote, "The right to procreate is not guaranteed explicitly or implicitly by the Constitution," unquote.

Judge Bork thought minorities had no constitutional right to have their votes counted equally, saying that in guaranteeing one man/one vote, the court, quote, "stepped beyond its boundaries as an original matter," unquote.

In 1981, Judge Bork called Roe v. Wade, quote, "an unconstitutional decision, serious and wholly unjustifiable usurpation of state legislative authority," unquote.

In addition, he had an unreasonably broad view of executive power, claiming that a law requiring a president to obtain an order from a court before conducting surveillance in the United States and against U.S. for foreign intelligence purposes was, quote, "a thoroughly bad idea and almost certainly unconstitutional."

Can we assume from your admiration of Judge Bork that you agree with some of these statements, or at least that you support some of these beliefs if you were sitting on the Supreme Court?

KOHL: Frankly, it's curious to me that someone like yourself would consider someone with his views to be, quote, "one of the most outstanding nominees of this century."

ALITO: Senator, when I made that statement in 1988 I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration and I had been a supporter of the nomination. I do not think the statement goes beyond that.

There are issues with respect to which I probably agree with Judge Bork and there are a number of issues with which -- on which I disagree with him.

Most of the things that you just mentioned are points on which I would disagree with him. I expressed my view about Griswold earlier this morning.

On the issue of reapportionment, as I sit here today in 2006, and I think that's what is most relevant, I think that the principle of "one person, one vote" is a fundamental part of our constitutional law. I think it would be -- I do not see any reason why it should be reexamined. And I do not know that anybody is asking for that to be done.

Every legislative district in the country and every congressional district in the country has been reapportioned, has been redistricted numerous times in reliance on the principle of one person, one vote. And the old ways of organizing state legislatures have long been forgotten.

So I think that is very well settled now in the constitutional law of our country.

Under the Fourth Amendment, I have no question about the decision in the United States v. United States District Court -- and I think that is what you were referring to -- which held that a warrant is required for domestic security surveillance.

ALITO: And that was the decision that led to the enactment of the Foreign Intelligence Surveillance Act.

KOHL: Of course. I was only referring to -- or trying to refer to your quote with respect to him and the positions he held, which I suggested were at variance with the positions I thought you held, which you're affirming here in your answer.

So that the quote you're pointing out was something you made as an employee of the Reagan administration?

ALITO: I was. I saw that quoted in the paper yesterday. I think that was in 1980...

KOHL: Not necessarily expressing your own real views?

ALITO: I was a supporter of the nominee of the administration, and he was the nominee of the administration. He was and is an accomplished scholar. He had contributed a great deal to constitutional debate with his writings.

But I don't agree with him on a number of issues, and I've mentioned -- you've hit some of the issues on which I would definitely disagree with him.

KOHL: Very good.

Judge Alito, in a document appended to your job application you also wrote that, quote, "I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by branches of government responsible to the electorate," unquote.

The statement is especially troubling given that elsewhere in this application you wrote, quote, "I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren court decisions, particularly in the areas of criminal procedure, establishment clause and reapportionment."

KOHL: Judge Alito, what Warren court cases were you specifically talking about? Miranda? One person, one vote? Any of the privacy decisions? What in particular were you talking about?

ALITO: Well, Senator, I'm happy to address that.

The statement was made in that 1985 form. And, of course, that was written 20 years ago. And in the form, what I was doing was, sort of, outlining the development of my thinking about constitutional law. And I went so far as to go back to my college days, which were before, of course, I had even attended law school, much less practiced law or served as a judge.

I mentioned some of the leading areas that were covered by decisions of the Warren court. And the decisions of the Warren court really stimulated my interest in constitutional law.

And I mentioned a book that had been published at the time, Alexander Bickel's book "The Supreme Court and the Idea of Progress," which was probably the first book about what you might call constitutional theory that I had read.

And he was someone who I think most people would describe as a liberal, but he was a critic of the Warren court for a number of reasons. And he was a great proponent of judicial self-restraint, and that was the main point that I took from my pre-law school study of the Warren court.

I spoke a bit about the reapportionment decisions.

ALITO: I don't believe that I -- in fact, I'm quite sure I never was opposed to the one person, one vote concept.

I do recall quite clearly that my father's work at the time -- working for the New Jersey legislature and working on reapportionment -- had brought to my attention the question of just how far that principle of one person, one vote had to be taken in drawing legislative districts.

The New Jersey legislature, and many other legislatures at the time, were trying to redraw their districts in accordance with Reynolds v. Simms, which set out the one person, one vote principle, but it wasn't clear how exactly equal the districts had to be in population.

And in some of the late Warren court decisions, the court seemed to suggest -- did say so for congressional districts -- that they had to be almost exactly equal in population.

And this idea, if applied to the legislatures and to the New Jersey legislative plan, would have wiped the plan out, because there were population deviations, which although not very large, were much larger than the court had said there were going to tolerate in the case of congressional districts.

And I do remember that quite specifically.

Professor Bickel made the argument that the court had taken the one person, one vote principle too far. And I know my father had said that, although he thought it was a good idea, the idea of trying to get the districts to be exactly equal in population at the expense of looking at other factors, such as the shape of the districts and respecting county lines or municipal lines, was a bad idea.

KOHL: Judge Alito, you stated in that same job application that one element of the conservative philosophy that you believed, quote, "very strongly," was the, quote, "legitimacy of a government role in protecting traditional values," unquote.

KOHL: What traditional values were you referring to? And who decides what is a, quote, "traditional value"?

ALITO: Well, again, I'm trying to remember what I thought about that 20 years ago, and I'm trying to reconstruct it.

I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates. I think that's a traditional value.

I think the ability of people to raise a family and raise their children in accordance with their own beliefs is a traditional value.

I think the ability to raise children in a way that they're not only subjected to -- they're spared physical threats, but also psychological threats that can come from elements in the atmosphere, is a traditional value.

I think that the ability to practice your own conscience is a traditional value.

That's the best I can reconstruct it now, thinking back to 1985.

KOHL: Very good.

Judge Alito, in Casey you argued that the requirement that a woman notify her husband did not impose an undue burden upon a woman. You reasoned, in part, that the number of married woman who would seek an abortion without notifying their husbands would be rather small; in other words, only some women who would be affected.

KOHL: The majority in that case disagreed with you and stated, quote, "Whether the adversely affected group is but a small fraction of the universe, a pregnant woman desiring an abortion seems to us irrelevant to the issue," unquote.

This disagreement begs the question: Is a constitutional right any less of a right if only one person suffers a violation? Or should greater value be placed on that right if a larger number of people have that right violated?

ALITO: Trying to apply the undue burden test at that time to the provisions of the Pennsylvania statute that were before the court in Casey was extremely difficult. I can really remember wrestling with the problem. I took it very seriously, and I mentioned that in my opinion. It presented some really difficult issues.

Part of the problem was that the law just was not very clear at that time. The undue burden standard had been articulated by Justice O'Connor in several of her own opinions, and there were just a few hints in those opinions about what she meant by it.

What she said was that an undue burden consisted of an absolute obstacle or an extreme burden. Those may not be exact quotes, but they are pretty close. She did say that it was insufficient to show simply that a regulation of abortion would inhibit some women from going forward and having an abortion. That was the information that was available in her opinions to try to understand what this test meant.

Then the question became: How do you apply that to the numerous provisions of the Pennsylvania statute that were before us? It was a difficult task.

The plaintiffs argued that all of the provisions constituted an undue burden. When the case went to the Supreme Court, Justice Stevens agreed with that.

ALITO: He said they all were an undue burden, things like a 24- hour Waiting time. That was an undue burden because it would inhibit some women from having an abortion.

An informed consent provision -- Justice Stevens thought and the plaintiffs argued that would be an undue burden.

The majority on my panel and the joint opinion on the Supreme Court found that most of the provisions of the statute did not amount to an undue burden -- the 24-hour waiting period, the informed consent provision, and all of them.

We disagreed on only one and that was the provision regarding spousal notification, with a safety valve provision there that no sort of notification was needed if the woman thought that providing the notification would present a threat of physical injury to her.

And it was -- I wrestled with that issue, but based on the information that I had from Justice O'Connor's opinions, it seemed to me that this was not what she had in mind. Now, that turned out not to be a correct prediction about how she herself would apply the undue burden standard to that statutory provision, but that was the best I could do under the circumstances.

KOHL: Judge Alito, in your 1985 job application memo, again, you identified reapportionment as one of the three issues decided by the Warren court with which you disagreed. You even stated that you disagreed with it so strong that it was one of the reasons that you became a lawyer.

The Supreme Court's Warren court decisions on this topic, of course, stood for the fundamental principle of one person, one vote; meaning as a matter of constitutional law that each person's vote must count equally and each electoral district must have the same population.

KOHL: These decisions were more than 20 years old by the time of your 1985 job application. And these decisions stand for a fundamental principle of democracy.

By 1985, virtually no serious scholar or constitutional lawyer could be found to disagree with the principle that each person's vote should count equally.

So what was your disagreement with the Warren court's decisions on this issue, Judge Alito, in 1985? Isn't one person, one vote a basic principle of democracy? Wasn't it in 1985?

ALITO: Senator, I don't believe that I disagreed with the principle of one person, one vote in 1985. I was talking about how I got interested in constitutional law back in college, and I was certainly stimulated at that time by my consideration of the issue of one person, one vote.

But the issue that troubled me toward the end of the Warren court -- and this was during the time when I was in college -- was the question of how far this principle when it came to drawing legislative districts.

Did they have to be almost exactly equal in population in accordance with the last census? Or were larger population variations permitted?

In a case called Kirkpatrick v. Priesler and another one called Wells v. Rockefeller that were decided around 1969, which was right at the end of Chief Justice Warren's tenure on the Supreme Court, the court held that in the case of congressional districts, they had to be almost exactly equal in population.

And as I said, my father was deeply involved in this. When the issue came up again in the context of congressional districting in Karcher v. Daggett, which was around 1985 -- that was the case where he had been an expert witness.

ALITO: And the court struck down the New Jersey congressional districting plan, even though the population variations were under 1 percent.

Now, the court also later said that when you're talking about legislative districts, considerably larger deviations are allowed and you can take into account municipal lines and county lines and things of that nature.

But as of the time when I was in college, as of the time of the two cases that I mentioned, it seemed likely -- a lot of people thought, and certainly I as a college student thought, that the rule was going to be the same for congressional districts as it was for legislative districts. And that seemed to say that the districts would have to be almost exactly equal in population based on the last census.

A problem with that is that while its census is very accurate, it is not perfect, and it does not stay accurate throughout the 10-year period from census to census. People move around, the population grows, population diminishes in certain areas.

It did not seem to make a whole lot of sense, let's say, in the middle of a decade to insist on an absolute population equality based on the last previous census, when everybody knew that the census figures have changed. In doing that, insisting on practically equal population districts, districts of almost exactly equal population. You disregard municipal lines, you disregard county lines. People don't know which district they're going to be voting in. You introduce the possibility of other factors figuring into the districting plan.

KOHL: Family and Medical Leave Act, Judge Alito: In my view, one of the most important pieces of social legislation enacted in the last two decades was the Family and Medical Leave Act in 1993.

KOHL: Among other things, it gives employees the right to take up to 12 weeks of unpaid leave to care for a newborn child or an ill parent or a spouse.

The statute also gives an employee the right to sue his or her employer for damages if the employer violates the employee's rights under this law.

I was disturbed to learn that in the Chittister case, Judge Alito, your ruling denied a state employee the ability to sue his employer for money damages. Your reasoning was directly repudiated by the 2003 Supreme Court decisions of Nevada Department of Human Resources v. Hibbs.

In that case, the Supreme Court, in a decision written by Chief Justice Rehnquist, held that the Family and Medical Leave Act was congruent and proportional to Congress's interest in preventing discrimination based on gender and therefore states could be sued for money damages under the law.

So we're concerned that your view shows a lack of understanding of the problems of ordinary working Americans and the right of women to be free of discrimination in the workplace.

Isn't it true that under your view potentially millions of working Americans would not get the protections that they rely on under the Family and Medical Leave Act, Judge Alito?

ALITO: Well, Senator, I'm happy to address that, because I think there has been some confusion about what the issue was in Chittister and how it relates to the Supreme Court's decision in Nevada v. Hibbs.

There are actually two zero entirely different provisions of the Family and Medical Leave Act. The provision that was at issue in my case was not the one in Hibbs. And, at last count, seven circuits had decided that issue, the issue that was before my court in Chittister, exactly the same way we did.

ALITO: I counted up the number of court of appeals judges who endorsed that position and it's over 20; I think it's 22. And they include some of the most distinguished court of appeals judges in the country and judges who have been appointed by presidents of both parties.

The issue in Hibbs had to do with a provision of the Family and Medical Leave Act that requires employers to provide employees with a certain amount of leave for the purpose of taking care of another family member. And that was the one that the Supreme Court addressed in the Hibbs case.

The provision in the Chittister case is a provision that requires employers to give employees a certain amount of leave for personal illness.

The standard that has to be applied here is the one the Supreme Court has set out, and it's a controversial standard, but as a lower court judge is the one I had to apply. And that was whether what was done was congruent and proportional to constitutional violations.

What the court said in Hibbs was that there was a record of constitutional violations. And remember, here we're talking about the provision that has to do with leave to take care of another person.

And what they said was that there were many instances in which employers, state employers, had plans that provided more leave for that purpose for women than for men. And the reason was because of the stereotype, that if somebody in the family got sick, it would be the woman, not a man, who would have to take off from work to take care of that person.

But the provision that was at issue in Chittister had to with leave for one's own personal illness. And a man was objecting to this. And there was no record that state employers, or for that matter any other employers, had plans that provided more sick leave for men than for women or that any stereotypes were involved in the situation.

So that was why I concluded and the unanimous panel that I sat on concluded and all of these seven other circuits concluded that that provision did not satisfy the standard that the Supreme Court had established.

KOHL: Last question.

Judge Alito, I understand that you're reluctant to comment on cases that you would likely have coming before you in the future, but I'd like to ask you about a case that the Supreme Court certainly will never see again: 2000 presidential election contest between President Bush, Vice President Gore.

KOHL: Many commentators see the Bush v. Gore decision as an example of judicial activism, an example of the judiciary improperly injecting itself into a political dispute.

Indeed it appears to many of us who've looked at your record that Bush v. Gore seems contrary to so many of the principles that you stand for, that the president has said you stand for when making your nomination: talking about judicial restraint, not legislating from the bench and, of course, respecting the rights of the states.

So, Judge Alito, I'd like to ask you: Was the Supreme Court correct to take this case in the first place?

ALITO: Well, Senator, I think you're probably right, and I hope you're right, that, that sort of issue doesn't come before the Supreme Court again.

Some of the equal protection ground that the majority relied on in Bush v. Gore does involve principles that could come up in future elections and in future cases.

As to that particular case, my answer has to be, I really don't know. I have not studied it in the way I would study a case that comes before me as a judge. And I would have to go through the whole judicial process.

KOHL: That was a huge, huge case.

And I would like to hope and I would bet that you thought about it an awful lot, because you are who you are. And I would like for you to give an opinion from the convictions of your heart.

KOHL: As a person who's very restrained with respect to judicial activism, this being a case of extreme judicial activism, were they correct in taking this case, in your opinion?

ALITO: Well, there's the issue of whether they should take it and the issue of how it should be decided.

And, Senator, my honest answer is I have not studied it in the way that I would study the issue if it were to come before me as a judge.

And that would require putting out of my mind any personal thoughts that I had on the matter and listening to all of the arguments and reading the briefs and thinking about it in the way that I do when I decide legal issues that are before me as a judge.

And that's the best answer I can give you to that question.

It was obviously a very important and difficult and controversial case. And in a situation like that, the obligation of a judge all the more is to be restrained and is to go through the judicial decision- making process and only at the end of that reach a conclusion about the issue.

KOHL: Thank you, Judge.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Kohl.

Senator DeWine?

DEWINE: Thank you, Mr. Chairman.

Judge, you've almost turned the corner here. So that's the good news. The bad news is this is just the first round.

So let me respond if I could, Judge, to three things that I've heard so far during these hearings that have, frankly, disturbed me.

First, I'm bothered by what I consider to be distortions of your record, really in an effort to make you look like something that you're not.

I just read a very interesting article by Stuart Taylor from the National Journal about this issue.

And I would like, Mr. Chairman, to make this a part of the record -- this article -- if I could.

SPECTER: Without objection.

DEWINE: Mr. Taylor describes the opinions of a, quote, "right- wing jurist. This judge has consistently ruled against minorities, striking down affirmative action programs, making it harder for victims of race and gender discrimination to vindicate their rights."

SPECTER: Senator DeWine, your unanimous consent request is granted.

DEWINE: Thank you, sir.

"This judge has struck down a federal law to protect kids from guns; ruled that state and local governments cannot be sued under the Fair Labor Standards Act, leaving 4.7 million workers without a remedy in court.

"This judge has immunized the president from suit, even when he illegally wiretaps political opponents.

"This judge approved a police officer's fatal shooting in the back of an unarmed 15-year-old African-American boy.

"Finally, this judge has called abortion, and I quote, 'morally repugnant' and declared Roe v. Wade to be, quote, 'on a collision course with itself.'

"Based on such a record, no right-thinking Democrat could ever support such a judge."

But as Taylor tells us, this judge is none other than Sandra Day O'Connor, the same Sandra Day O'Connor who has been praised for the past few days as a model of moderation.

Judge, the point Mr. Taylor made is clear: You can distort and misrepresent anyone's record.

And that, I believe, unfortunately, is what some of your opponents are doing to you. It's unfair, it's inaccurate. And it's just flat-out wrong.

Second, I would like to respond to the allegation that you have not written an opinion in favor of a plaintiff alleging race discrimination on the job. You did a very good job a moment ago, when Senator Kyl was talking to you, in describing some of the cases.

I think the facts of these cases are what is particularly interesting.

In Reynolds versus USX Corporation, you ruled that an African- American woman whose coworkers and supervisors regularly made racial and sexual slurs against her and denied her training opportunities was, in fact, entitled to $124,000 in damages and in attorney fees.

In Zubi v. AT&T Corporation, you dissented -- you dissented -- arguing against a stringent limitations period which prevented a civil rights plaintiff from filing a claim. And your position was vindicated -- you were vindicated by the United States Supreme Court unanimously a few years later.

In Smith v. Davis, you disagreed with the district court, which had dismissed an African-American employee's claim of discrimination. Instead, you found that there was evidence to support a finding that the employer's stated reasons for firing the plaintiff were not genuine.

In Goosby v. Johnson & Johnson, you ruled that the plaintiff, an African-American woman, was entitled to a trial under claims of employment discrimination, because you found that there was evidence that the employer was treating white male employees differently than it was treating the plaintiff.

DEWINE: There are more cases, as you've testified to. But I think we make the point.

We would all be better off, and this process, Mr. Chairman, would be better off and would be more instructive if we could evaluate your nomination, Judge, based on your full and complete record.

And, finally, let me add my two cents on this Vanguard issue. I'm going take it from a little different perspective than has been done so far.

To me, this is really a non-issue. In the so-called Vanguard lawsuit, two people were in a financial dispute. The plaintiff sued to force the defendant to turn over $170,000 held by him in some Vanguard accounts. The defendant went to court to prevent Vanguard from turning over the money.

Now, while Vanguard was technically part of the suit, and was technically a defendant, it wasn't really a defendant in any sense of the term that would be used by the public or understood by the public. It was not accused of any wrongdoing. It didn't stand to lose anything.

Really, the only question was whether Vanguard would transfer some of the funds it held for one person over to another. It was simply being asked: Who do I pay the money to? Who do I give the money to? That's all Vanguard was being asked to do. So nothing in the classic sense of being a defendant. Nothing about this case could realistically have affected Vanguard as a company, let alone -- let alone affected your mutual funds. It's a joke. It's ridiculous. It's absurd. And everybody on this panel knows that.

Now, for the sake of the process, I hope we can put these issues behind us.

DEWINE: This hearing is really our opportunity to fully and fairly evaluate your qualifications for the high court and to get some idea about how you think as a judge, how you process things, what kind of a judge you will be on the United States Supreme Court.

Now let me turn to the substance. Judge Alito, I want to turn to an issue that is very important to me. In a number of recent cases, the Supreme Court of this country has restricted congressional power in a way that I think is not required by the Constitution.

In my opening statement I mentioned the Supreme Court's decision in the Board of Trustees v. Garrett, a 5-4 decision. To me, that case is a best example of this recent trend. And it's not a good trend in my opinion.

Garrett involved a woman who claimed that she had been discriminated against because she was disabled. She was employed by the state of Alabama and she sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, however, holding that Congress lacked the power to make the state subject to suit.

Judge, as I see it, the problem with Garrett is that the court ignored findings made by Congress. While we were considering the ADA, we held 13 hearings and even set up a task force that held hearings in every state of the union, attended by more than 30,000 individuals.

Based on these hearings, we found hundreds of examples -- hundreds of examples -- of people with disabilities being discriminated against by the states and in employment decisions.

Further, we found that, and I quote, two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all -- even though a large majority of them were capable of doing so.

And finally -- we found that this discrimination flowed from, and I quote, "stereotypic assumptions about people with disabilities as well as" -- and I quote -- "purposeful unequal treatment," end of quote.

Sadly, however, in Garrett, the court said that this was just not enough. In fact, it held that we had not pointed to any evidence that the states discriminated in employment decisions against people with disabilities.

Judge Alito, from a review of your decisions, it appears to me that you tended to defer in close cases to the decisions of those individuals closest to the problem at hand.

DEWINE: I applaud you for taking that approach.

Now, let me ask: In your opinion, what role should a judge play when reviewing congressional fact-finding? And how can you ensure us -- how can you assure us -- that you will show appropriate deference to the role of Congress as the representative of the people in this democracy when we pass important legislation?

ALITO: I think that the judiciary should have great respect for findings of fact that are made by Congress. And in the Rybar decision that I was discussing earlier, although it is controversial and it involved an application of the Lopez decision, I state that that decision would have been very different -- that case would have been very different for me if Congress had made findings.

And that's because of two things. I am fully aware of the fact that the members of the judiciary are not the officers in the United States who take an oath to support and defend the Constitution of the United States. The members of Congress take an oath to support the Constitution and officers of the executive branch take an oath to support the Constitution. And I presume that they go about their work in good faith.

The second point, and this goes directly to the issue of findings, is that the judiciary is not equipped at all to make findings about what's going on in the real world, not just sort of legislative findings. And Congress, of course, is in the best position to do that. You have constituents. Members of Congress hear from their constituents. Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that and reduce that to findings.

And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect.

DEWINE: Well, Judge, I appreciate your response.

We can't ask you, obviously, to decide any particular case. But what we're trying to do today is get the general idea of how you approach cases. And we've looked at your previous cases. We have a pretty good idea from that. But I appreciate this exchange.

Let me follow up with this. Garrett is the law of the land today. Nonetheless, let me ask you, whether, after Garrett, Congress might still have a way to protect the disabled. Rather than focus on the problem caused by Garrett, let me focus on the solution.

To me, even after Garrett, Congress still has the power to protect the disabled under the spending clause of the Constitution. I'd like to explore, maybe, that with you if I could.

Let me give you an example how this might work. Of course, you're very familiar with South Dakota v. Dole. In that case, Congress had wanted to establish a national drinking age of 21.

As you know, we, of course, don't have the power to require that under our Constitution. Therefore, Congress used its power under the spending clause.

We said to the states, "If you don't establish a 21-year-old drinking age, you will lose 5 percent of your federal highway dollars."

This left the states with a choice: adopt a 21-year-old drinking age or lose 5 percent of their federal money. When presented with such a choice, the states kept the money and changed the drinking age to 21.

It seems to me that Congress might be able to use this same approach to require the states to waive their immunity from suit under statutes like the ADA.

Judge, based on your experience, could you give me your understanding of what Congress can do and what it can't do under the spending clause power? Maybe just go back and look at recent cases and give me a little indication.

ALITO: Yes, certainly, Senator.

Well, I think you've pointed to the leading case in this area, and that's South Dakota v. Dole.

And South Dakota v. Dole recognizes that Congress has broad powers under the spending clause. And that when Congress provides money to the states, Congress can attach conditions to the receipt of the money, provided that certain standards are met.

One thing that has to be done under the Supreme Court's cases is that there has to be a clear statement that the conditions are attached to the receipt of the money.

The Supreme Court views this like a contract so that the party receiving the notice has to have clear and fair notice about what it's agreeing to by taking the money.

ALITO: And then beyond that, if that's satisfied, then the condition has to be germane to the purposes of the funds.

And in South Dakota v. Dole, the court found that the drinking age and the 55 mile-an-hour speed limit were germane to the purpose of the expenditures. And these, I believe, were federal highway funds.

So those are the standards that would be applied to any future legislation under the current precedents if the future legislation invokes Congress' broad power under the spending clause.

DEWINE: That's helpful.

Thank you, Judge.

During the confirmation hearing of Chief Justice Roberts, Chairman Specter showed us a chart stating that the Supreme Court had the opportunity to overrule Roe v. Wade in 38 cases. Because of this, the chairman suggested that Roe was not only a super-precedent, but super-duper-precedent.

The chairman has made the same argument at the hearing today. In fact, he brought the chart out again today.

Now, Judge, just to show you that not all members of this panel are like-minded, I want to tell you that I disagree. To me, Roe is not super-precedent. I believe Roe is precedent, but I don't believe it's super-duper-precedent, nor super-precedent.

First, although the court has applied Roe in 38 cases, it has not directly taken up the issue of whether to overrule Roe in every one of those cases.

In fact, out of those 38 cases, I've only found four in which the court directly addressed the status of Roe as binding precedent.

In Webster, the court asked whether Roe should be reaffirmed but ultimately avoided the issue.

In three cases, City of Akron, Thornburgh and Casey, the court did reaffirm Roe.

DEWINE: But the last of these, Casey, did so in a way that hardly left Roe on firm footing. In fact, Casey altered Roe by eliminating the strict scrutiny standard of review and replacing it with a lesser, undue burden tests. The result has been many restrictions on abortion have been upheld.

Second, just because Roe has been applied and reaffirmed does not make it a special form of precedent. Many other cases have been applied for decades before eventually being overruled.

For example, Plessy v. Ferguson, the case establishing the principle of separate but equal was upheld for 60 years before it was overruled, and certainly discredited today; Lochner v. New York, a case that greatly limited the power of the states to protect children and workers, was consistently applied for more than 30 years before it was overruled. And Swift v. Tyson, the case establishing the doctrine of federal common law, was a bedrock principle of American law repeatedly applied and upheld for nearly 100 years before it, too, was struck down.

Thus the mere fact that Roe has been upheld for more than 30 years does not mean that it's entitled to special deference.

Third, from the start, Roe has been criticized by lawyers, scholars and judges, whether Democrats or Republicans. And to date, it does remain controversial.

Fourth, much has happened over the last 30 years to undermine the soundness of Roe.

Senator Brownback has mentioned how the facts of Roe have changed. We now know that the plaintiff in Roe based her case on false statements and that she wants the case overturned.

We also know much about the life of babies in utero that we did not know 30 years ago.

We even know something about the internal deliberations of the justices who decided Roe. In an internal Supreme Court memo, Justice Harry Blackmun, the author of Roe, acknowledged that the trimester framework established in his opinion was, and I quote, "arbitrary."

DEWINE: And Justice Lewis Powell said that he could not find a right to an abortion within the Constitution and decided instead to rely on his gut.

Finally, whatever the term super-precedent means, I do not think that it describes Roe. In an article by William Landis and Richard Posner, super-precedent was defined this way: "It is a" -- and I quote -- "precedent that is so effective in defining the requirements of the law that it prevents legal decisions arising in the first place or, if they do arise, it induces them to be settled without litigation," end of quote.

In other words, super-precedent is precedent that is so firmly entrenched in our legal system that people simply don't question it.

Marbury v. Madison, the case establishing the power of judicial review, is super-precedent. It's so well-settled that litigants do not challenge it in court. In fact, it is one of the fundamental assumptions upon which our constitutional system is built.

Roe is hardly Marbury. Is Roe Supreme Court precedent? Certainly. But in my view, it is not super-precedent -- is not super- duper-precedent or even super-precedent. It is precedent. Nothing more.

Judge, I want to turn now to another topic, to an issue that several federal judges in Ohio have brought up to me during our conversations. As you know, the Supreme Court currently decides about 75 cases a term. This number is down dramatically from where it was just a generation ago.

1976, for example, the court decided almost 400 cases on the merits; more than five times what it does today.

This incredible shrinking Supreme Court docket has been the focus of much attention over the past few years, a lot of discussion. And one result of the court deciding fewer and fewer cases is that more and more circuit splits are left unresolved, which is what I want to talk about.

As we all know, a circuit split occurs two or more federal courts of appeals disagree on issue of federal law. As of late, circuit splits have become so pervasive that the Seton Hall Law School came out last year with a new law review dedicated exclusively to that issue.

DEWINE: There is also a Web site written by a law professor at the University of Richmond solely committed to identifying new circuit splits. Hardly a week passes when at least one does not emerge.

To me, these pervasive and unaddressed circuit splits create three problems.

One, organizations that transact business across state lines get caught in the crosshairs of this confusion, being subject to one interpretation of federal law in California and a different one in the state of Ohio.

Second, federal judges are placed in difficult situations trying to figure out what the law requires. In fact, a number of federal judges in Ohio have talked to me, as I said, about this.

And finally, circuit splits undermine the goal of having uniformity in our federal law.

Let me just ask you, what is your opinion about this issue? In your experience, has the Supreme Court's shrinking docket caused problems for businesses, lower court judges, and individuals? Is there a problem with the number of unresolved circuit splits? And if the court takes more cases, do you think that will solve the problem?

ALITO: Well, that's a difficult issue for me to address from my current position as a judge on the Court of Appeals...

DEWINE: It's coming, Judge.

ALITO: ... because the Supreme Court is my boss. And I am reluctant to suggest that I think they should be doubling their workload.

DEWINE: Oh, go ahead.

ALITO: Or even increasing it at all. That's not the sort of thing that subordinates generally do regarding superiors.

But circuit splits are certainly undesirable. And I think everybody recognizes that, and that's one of the grounds for granting certiori. I know that when Justice White was on the court he regularly would dissent from the denial of certiori in cases where there was a circuit split because he felt strongly that circuit splits should be resolved by the Supreme Court.

ALITO: I have friends, former colleagues from prior times in my career who are appellate attorneys, who specialize in cases before the Supreme Court and in appellate litigation generally. And occasionally I hear them complain about unresolved circuit splits that are difficult for their clients.

And so I'm aware of their complaints.

I haven't personally kept track of the number of circuit splits that exist, but certainly they are an undesirable thing and it is a ground for granting certiori. And I think one of the jobs that the Supreme Court has is to iron out circuit splits.

There can be disagreements about whether there really is a circuit split, obviously, in a particular case, and there can be differences of opinion about the timing for resolving circuit splits. Sometimes the Supreme Court thinks it's advisable to wait and see how an issue plays out in a number of circuits before the Supreme Court decides to take on the issue. And that may improve their ability to resolve the issue when the case eventually comes before them.

DEWINE: Judge, let me just suggest that I think it's a problem. And I think the Supreme Court needs to deal with it. Chief Justice Roberts indicated he thought the court could take on more. And I would suggest that they could. So I appreciate your comments.

Judge Alito, let me ask you about Congress' power to protect our children from the proliferation of pornography on the Internet. This is an important issue. I raised it at the last hearing. It's one that I think is very troubling.

Congress has tried several times to protect our children from being exposed to pornography on the Internet. In 1996, we passed the Communications Decency Act, but the Supreme Court struck it down, citing the First Amendment. A few years later, we passed the Child Online Protection Act. Again, the court struck it down.

What bothers me about these cases is they fail to account for something that to me seems relatively simple: The core of the First Amendment is the protection of political speech, but it seems to me that pornography is altogether different. Unlike political speech, pornography has little value, if it has any value at all.

DEWINE: It doesn't communicate a message, other than one that degrades women. It does not contribute to the public debate. And it actually causes harm to the victims who take part in making it and those who use it.

There are, of course, a number of cases that seem to recognize that pornography is of lesser-value speech. In Young v. American Minitheaters, the court upheld zoning regulations on adult theaters.

In doing so, Justice Stevens had this to say, and I quote, "Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate."

Let me ask you, Judge, what is your thinking on the subject? Is pornography lesser-value speech as Justice Stevens has seemed to suggest? And are there or should there be different levels of speech under the First Amendment?

ALITO: I think that the problem of protecting children from pornography on the Internet illustrates the fact that, although the task of the judiciary is to apply principles that are in the Constitution and not make up its own principles, to apply those to different factual situations, when the world changes and, in particular, when, in the First Amendment context when means of communication changes, the job of applying the principles that have been worked out -- and I think in this area, worked out with a great deal of effort over a period of time in the pre-Internet world -- applying those to the world of the Internet is a really difficult problem.

And I understand that Congress has been struggling with it. And I know the judiciary has been struggling with it.

The law, of course, as you know, constitutional law draws a distinction between obscenity, which has no First Amendment protection but is subject to a very strict definition, and pornography, which is not obscenity but is sexually related materials. With respect to minors, the Supreme Court has said it's permissible for a state to regulate the sale of pornography to minors.

It has greater authority there. I think that's the Ginsburg case. It has great authority there than it does with respect to the distribution of pornography to adults.

ALITO: Now, in the pre-Internet world, the job of preventing minors from purchasing pornography was a lot simpler. If they wanted to get it, I guess they would have to go to a store or some place and buy it.

But on the Internet, of course, it's readily available from any computer terminal. And a lot of minors today are a lot more sophisticated in the use of computers than their parents. So the ability of parents to monitor what they're doing and supervise what they're doing is greatly impaired by this difference in computer aptitude.

And I can't say much more about the question than that. It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government, so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors.

DEWINE: Judge, I have one last question.

If confirmed to the Supreme Court, only part of your job will be hearing arguments and issuing opinions. An equally important part of the job will be involved deciding which cases to hear in the first place.

Each year the Supreme Court receives approximately 8,000 petitions for cert -- cert petitions as they are called. These are petitions by a party to a lawsuit asking the court to hear its case.

Out of these 8,000 annual requests, the court decides to hear only about 75 to 80. For many years, individual justices would review each cert petition and cast a vote on whether to hear the case. Today, however, eight of the justices are part of what is called the cert pool.

Here's how it works. All petitions are put into a pool. A single law clerk then picks up a petition and writes a memo recommending for or against hearing the case. That memo is then circulated to the eight justices in the cert pool who use it to cast their vote on whether to hear the case.

Justice Stevens is the only one who does not participate in this pool. Instead, he has his staff prepare a memo on each case with a recommendation tailored to his own thinking on an issue.

It would seem to me that the cert pool greatly limits the exchange of ideas among members of the court.

DEWINE: I wonder if you could tell me how you would intend to proceed, if you're going to use the pool or if you are going to do what Justice Stevens does, or if you've thought about it.

ALITO: Well, I'm aware of the issue. But I have not thought past what might happen with these confirmation proceedings.


So it's not the kind of issue that I have really thought through in my mind.

If I'm fortunate enough to be confirmed, I think I would assess the situation at that time and talk to the Supreme Court justices and see what their views are, the reasons why they're proceeding in one way or another.

I know from my perspective as a lower court judge that there is a constant conflict between the obligation that we have to deal with a very heavy case load and the need for the judge, as opposed to a law clerk or a staff employee of the court, to deal with the cases.

We cannot delegate our judicial responsibility. But we do need to call on -- we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees so that we can deal with the large case load that we have.

DEWINE: Thank you, Judge.

SPECTER: Thank you, Senator DeWine.

FEINSTEIN: Thank you very much, Mr. Chairman.

Good afternoon, Judge.

Because Sandra Day O'Connor was the fifth vote on both Lopez and Morrison, I think I'd like to start with the commerce clause and your views of federalism.

Do you agree with the direction the Supreme Court took in Lopez?

ALITO: Well, Senator, that really relates to the next case in the Lopez-Morrison line of cases that might come before the Supreme Court.

ALITO: And so I don't know how I can address that question without knowing what that case is. And, of course, my resolution of it...

FEINSTEIN: I was just asking you about Lopez, but if you don't want to answer, that's OK.

ALITO: Well, Lopez is a precedent of the court and it's been followed in Morrison and then it has to be considered in connection with the Supreme Court's decision in Raich. And I think that all three of those have to be taken into account together.

I don't think there's any question at this point in our history that Congress' power under the commerce clause is quite broad, and I think that reflects a number of things, including the way in which our economy and our society has developed and all of the foreign and interstate activity that takes place.

We do still have a federal system of government, and I think most people believe that is the system set up by our Constitution.


Now, having said that, I pulled the Rybar case and read it over the noon break. And let me just see if we agree on the facts, and stop me if you think I'm misquoting or misstating anything.

The Rybar case essentially took place the year after Lopez. It involved Mr. Rybar, who was a federally licensed gun dealer, who went to a gun show in Pennsylvania and bought a Chinese-type 54/7.62 millimeter submachine gun one day, sold it to Mr. Baublitz, went back the next day and sold him a military M-3 .45 caliber submachine gun.

The grand jury indicted him on two counts of unlawful possession of a machine gun in violation of the law and two counts of unlawful transfer of an unregistered firearm.

He changed his plea, pled guilty to two counts, I think pled conditionally guilty to two counts.

And when the case came before you -- and I read with great interest your dissenting opinion -- and what you said was, and I quote, "If Lopez, which happened the year before, does not govern this case, then it may well be a precedent that's strictly limited to its own peculiar circumstances. But our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form."

FEINSTEIN: And then you went on to say that the present form, quote, "might be sustainable in its current form if Congress made findings that the purely intrastate possession of a machine guns has a substantial effect on interstate commerce or if Congress or the executive assembled empirical evidence documenting such a link.

"If, as the government and the majority boldly insist, the purely intrastate possession of machine guns have such an effect, these steps are not too much to demand to protect our system of constitutional federalism."

So if I understand this, you essentially said that you wanted to follow precedent, newly established law in this area. And you left a little hedge that if Congress made findings in that law, then that might be a different situation.

If Congress did make findings, would you have agreed that that statute would been constitutional?

ALITO: What I said in the opinion and what I will reiterate this afternoon is that it would have been a very different case for me. I don't think I can express an opinion on how I would have decided a hypothetical case.

FEINSTEIN: It's not hypothetical. I'm just asking you, if there were findings as you said, you might have sustained the law.

ALITO: And I reiterate that...

FEINSTEIN: And I'm just asking you would you have sustained the law...

ALITO: I don't think that I can give you a definitive answer to the question because that involves a case that's different from the case that came before me.

But I repeat what I said there: It would have been a very different matter if Congress had made findings.

I have the greatest respect for findings. This is an area where Congress has the expertise and where Congress has the opportunity to assemble facts and to assess the facts. We on the appellate judiciary don't have that opportunity.

So if Congress had made findings -- and I didn't insist on findings. If the executive branch, which was defending the statute, had pointed to testimony at hearings -- and that's been done in other commerce clause cases -- or statements by responsible government officials with expertise in the area of firearms control, or any other evidence that substantiated this, it would have been a very different case for me.

And, of course, if there had been a jurisdictional element, then I think it's perfectly clear, under the precedents, that it would have been constitutional.

FEINSTEIN: OK. Well, I accept that with one exception. I think most people know that particularly machine guns do affect interstate commerce.

FEINSTEIN: And there is generally no question about that. If one looks at a gun trace, even before Mr. Rybar had the gun, the likelihood was that it came across state lines, particularly the Chinese model.

So I think that's a difficult extrapolation for me to understand. But that's not necessarily dispositive.

Let me go on. At the conclusion of your dissent, you wrote that, quote, "Even today, the normative case for federalism remains strong," end quote.

Now, federalism is often used to describe the strengthening of state powers as the expense of the federal government. What exactly did you mean by that statement?

ALITO: I meant that there are activities that -- and I think there's general agreement on this, and it goes beyond what the Constitution requires into areas of policy that I think Congress respects -- that I think there's general agreement that there are some activities that have traditionally been handled by the states and by local governments. And those are the areas in which they have taken the lead because the view has been that they're in the best position to deal with that.

And that was the issue that was directly addressed by the Justice Kennedy's concurrence in Lopez. He relied in large part on the fact that -- he put heavy reliance on the fact that was what was involved in Lopez was a law relating to schools. And although the federal government certainly has a role in education, traditionally that has been regarded as something that is primarily to be handled at the state and local level.

FEINSTEIN: OK. Now, you cited a Law Review article by a professor named Steven Calabresi. In that article, he argues that Lopez was a revolution that shattered forever the notion that after 50 years of commerce clause precedent, we could never go back to the days of limited national power.

Do you agree with that?

ALITO: I agree that Lopez was a startling development for a lot of people.

ALITO: When I was in law school, I think the traditional wisdom was that the commerce power reached everything; that there was no limit to the power; that nothing could ever exceed the power.

And Lopez and the Lopez line of cases have not made huge inroads on that principle, but it was the first time in a long time that a statute had been held to exceed Congress's commerce power.

So to that extent, yes, it was a revolution. But how big of one...

FEINSTEIN: I would say not yet has it made that kind of a dent. And that's why your nomination is so important, because you can be a decisive vote in this area.

Do you believe that the Supreme Court's commerce clause decisions in the 50 years preceding Lopez are settled law?

ALITO: I think that I'd have to talk about individual cases. But I do think that most of those -- the ones that come to my mind, I think, are well-settled precedents.

FEINSTEIN: Now, unlike the machine gun law in Rybar, the Family and Medical Leave Act in Chittister did include congressional findings of fact as the Supreme Court confirmed. And yet you authored the majority opinion to invalidate the law.

ALITO: Well, in Chittister...

FEINSTEIN: Do you see a contradiction in that?

ALITO: I don't, Senator. I don't believe that there were congressional findings in Chittister that went to the issue in Chittister.

FEINSTEIN: OK, that's good.

Now, let me ask you some questions.

Is it enough for Congress to provide findings of fact in the statute? Or do the findings of fact need to be deemed sufficient by a court?

ALITO: Well, what the Supreme Court has said is that findings of fact are very helpful when they are provided. And the court will certainly treat them with respect. But they are not necessarily definitive and they also are not necessary.

Congress doesn't have to make findings. It's helpful when it does it. And, under the Supreme Court's cases, the findings are not necessarily definitive. That's what the Supreme Court has said about this.

FEINSTEIN: But you struck down Rybar, ostensibly (ph). You said it would have better chance with if it had findings of fact. And this was a case where prior laws had major findings of fact with respect to machine guns this. I mean, this wasn't a new thing.

ALITO: Senator, I looked very carefully at all of the materials that were cited by the other judges in Rybar and that were provided by the government. And the things that were cited from the legislative history of the prior statutes did not, in my view, go to the issue in Rybar. All of those prior statutes were statute that had jurisdictional elements in them.

All that I was looking for was some evidence that the possession of a machine gun -- not the transfer of a machine gun or the sale of a machine gun, but the mere possession -- had a substantial effect on interstate commerce.

That's what I understood the Supreme Court precedent to require. And it's not a very heavy burden to show that something has a substantial effect on interstate commerce. But that's what I understood the Supreme Court precedent to require. And that's what I was looking for.

FEINSTEIN: OK. Let's move to the issue of a woman's right to choose and Roe.

This morning, Senator Specter talked about how Casey reaffirmed the original soundness of Roe and then put emphasis on precedent. And he then asked, "How would you weigh that consideration were this issue to come before you if confirmed?"

And, in response, you said, and I'd like to quote, "Well, I agree that, in every case in which there is prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent."

Can you give us a few examples of a special justification, not including Brown v. Board of Education, which you think would qualify?

ALITO: There are a number of factors that figure in the application of stare decisis in particular cases. There are factors that weigh in favor of stare decisis and there are factors that weigh against stare decisis.

Factors that weigh in favor of stare decisis are things like what the initial vote was on the case, the length of time that the case has been on the books, whether it has been reaffirmed, whether it has been reaffirmed on stare decisis grounds, whether there has been reliance, the nature and the extent of the reliance, whether the precedent has proven to be workable.

ALITO: Those are all factors that have to be considered on an individual basis.

FEINSTEIN: But I'm asking you: What would be the special justification that you mentioned this morning that would be needed to overcome precedence and reliance?

ALITO: Well, I think what needs to be done is a consideration of all of the factors that are relevant.

This is not a mathematical formula. It would be a lot easier for everybody if it were, but it's not.

The Supreme Court has said that this is a question that calls for the exercise of judgment. And they've said there has to be a special justification for overruling a precedent. There is a presumption that precedence will be followed.

But it is not the -- the rule of stare decisis is not an inexorable command. And I don't think anybody would want a rule in the area of constitutional law that pointed and said that a constitutional decision once handed down can never be overruled.

So it's a matter of weighing all of the -- taking into account all of the factors and seeing whether there is a strong case based on all of the...

FEINSTEIN: My question was a different one, respectfully.

ALITO: I'm sorry, Senator.

FEINSTEIN: It was: Can you give me a few examples of what you think would qualify as a special justification for overruling prior precedent?

And the reason I ask you this is, in our private conversation, you said to me that you didn't think there had been any case you could think of that had been more tested than Roe. So...

ALITO: Well, Roe...

FEINSTEIN: What special circumstance would there be which would overcome this kind -- whether you call it super-precedent or super- duper or anything -- but this kind of protracted testing over a 33- year period of time?

ALITO: All right, Senator, I'm sorry if I didn't understand your question previously.

One situation in which there is a special justification for overruling a precedent is if the rule is proven to be unworkable.

ALITO: An example where the Supreme Court thought that a rule had proven to be unworkable is provided by National League of Cities and San Antonio Transit Authority v. Garcia. National League of Cities asked whether something was traditionally a sovereign function.

And that resulted in a whole series of cases in the lower courts, a number of cases in the lower courts, and a number of cases in the Supreme Court in which the courts had to decide whether something was on one side of this line or not. And it proved, in the view of the Supreme Court, to be a very difficult standard to work with.

And finally in Garcia, they said: This is unworkable, and we're going overrule National League of Cities and we're going to leave it to Congress to deal with the federalism issue that's presented here this. This is an example of the Supreme Court saying there's a federalism concern here, but it's one that Congress rather than the court would have to deal with.

Sometimes changes in the situation in the real world can call for the overruling of a precedent. An example of that is provided by Katz v. United States, which I was talking about this morning in relation to wiretapping.

The old rule under Olmstead was that in order for there to be a search, you had to look to property law. You had to see whether there was an invasion of a property interest. And then with the development of electronic communications and electronic surveillance, wiretapping or other forms of electronic surveillance, which is what was involved in Katz, the Supreme Court said that this is a sensible way to apply the Fourth Amendment principle under the conditions of the modern world. And they said infamously that the Fourth Amendment protects people, not places.

So they shifted. They found the doctrinal underpinnings of the old Olmstead rule to be undermined by developments in the society and they shifted the focus from property law to whether somebody had an expectation of privacy.

Those are examples.

FEINSTEIN: Well, and you did say that you believe the Constitution provides a right of privacy?

ALITO: I did say that. The 14th Amendment protects liberty. The Fifth Amendment protects liberty. And I think it's well accepted that this has a substantive component and that that component includes aspects of privacy that have constitutional protection.

FEINSTEIN: Let me ask you about your dissent in Casey. You reasoned that most women seeking abortions are either unmarried or would tell their husbands and therefore few would be harmed if spousal notification was required.

Justice O'Connor, on the other hand, ruled, and I quote, "The proper focus of constitutional inquiry is the ground of whom the law is a restriction, not the group for whom the law is irrelevant," end quote.

FEINSTEIN: Why did you propose a different approach than Justice O'Connor?

ALITO: I mentioned the fact in my opinion that this provision applied to only married women. But I don't think that was really the focus of what I was getting at.

I think I agree with her that you look at the group that's affected, not the group that's unaffected. So that would be women who fell within this provision of the Pennsylvania law.

And the standard that she had articulated in the earlier cases, was, as I described it a couple of minutes ago, that an undue burden, in her view, had to be an absolute obstacle or an extreme obstacle, and it could not be simply something that inhibited some women; "the some women" phrase was her phrase, not my phrase.

FEINSTEIN: I'm going to ask you one other quote that some of my colleagues may disagree with what she said, but she said it. And that is, "A state may not give to a man the kind of dominion and control over his wife that parents exercise over their children."

Do you agree with that?

ALITO: I never equated the situation of an adult woman who fell within the notification provision of the Pennsylvania statute with the situation of a minor who was required to provide notice.

There's an analogy, and the earlier case that Justice O'Connor had decided, the Hodgkin case, was a minor notification statute. But I think I made it quite clear in my opinion that this was nothing more than an analogy and that there was no close -- these situations were very distinct. And I was aware of that. And I think I pointed that out.

FEINSTEIN: Let me move on, if I might.

One of the core principles of Roe is that a woman's health must be protected. In Casey, O'Connor specifically wrote that after viability the state, quote, "may, if it chooses, regulate and even proscribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life of the mother."

This requirement to protect a woman's health was also reaffirmed in Stenberg v. Carhart, where it was said, "The court rejects Nebraska's contention that there is no need for a health exception."

Do you agree if a statute restricts access to abortion that it must protect the health of the mother in order for it to be constitutional?

ALITO: Well, I think that the case law is very clear that protecting the life and the health of a mother is a compelling interest throughout pregnancy. I think that's very clear in the case law.

FEINSTEIN: Thank you. I appreciate that.

In 1985, at the time you wrote the strategy memo on Thornburg, the court had already held that Roe, Akron, and eventually 30 other cases, that a woman had a constitutional right to choose whether to continue a pregnancy.

In addition, in your memo, you specifically wrote that in the Akron case, the Supreme Court reaffirmed Roe. However, despite this, your memo outlined a strategy to eventually overturn Roe.

My question is a little different from what you discussed somewhat yesterday: What was your view of precedent at the time you wrote that memo?

ALITO: Well, I think there are two things that I should say in response to that.

The first is that I did not advocate in the memo that an argument be made that Roe be overruled. And therefore, the whole issue -- had the government proceeded with the argument that I recommended, the issue of stare decisis wouldn't have been presented.

And so there wasn't any occasion for me to talk about stare decisis in the memo, and I did not talk about it. I think there's a mention of it in a footnote.

So I didn't address it and there wasn't an occasion to address it.

The second thing I would say is that stare decisis is a concern for the judiciary much more than it is for an advocate. An advocate is trying to achieve a result. And so for an advocate, stare decisis can be either a great benefit if it is in your favor, or an obstacle to get over. But it isn't the kind of issue that needs to be grappled with in the way in which a court has to grapple with stare decisis.

FEINSTEIN: OK. In Casey, you wrote about the harms caused by spousal notification to the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors.

Just to go back to that, is this what you meant?

ALITO: Well, Senator, I don't -- I did not equate the situation of a married woman with the situation of a minor.

FEINSTEIN: I mean, you keep saying that, but I keep going back to the words and it seems they seem to say that.

ALITO: Well, I think if you look at the words, I actually said that I don't equate these two situations. I was mindful of the fact that they are very different situations.

But often the law proceeds on the basis -- legal reasoning is based on analogy. And so if you take a situation that's quite different and yet has some relationship to a situation that comes up later, you can draw some analogies while still recognizing that the two situations are very different.

If you're talking about the potential for abuse, that certainly is something that can come up in either of these two contexts, and it's a tragedy in either context.

If a single minor is abused as a result of notification, that's a tragedy. If a single adult woman is abused as a result of notification, it's a tragedy.

But what I think I'm getting at there is that this was what we had and this is what I had, this was the information that I had to work with to try to understand what this provision meant.

And so you work with what you've got and that's what I had, and I was trying to see to what degree the prior situation was relevant and to what degree it wasn't relevant to the issue that was before me.

FEINSTEIN: I'd like to quickly just switch subjects for a moment just to clarify something you said this morning, and this has to do with electronic surveillance of Americans.

As you know, in 1978, the Congress, after a lot of introspection, passed a bill called the Foreign Intelligence Surveillance Act, which we call FISA, which essentially set up the parameters for all electronic surveillance within the United States. And it's very specific, if you read it.

There is a great concern right now because of what's been happening with respect to electronic surveillance, quite possibly involving Americans, as well as foreigners. You said something interesting this morning. You said, generally, there has to be a warrant issued by a neutral and detached magistrate before a search can be carried out.

FEINSTEIN: Now, with respect to the FISA law, the committee report -- Birch Bayh was the chairman of the Intelligence Committee at the time -- he spells out: This covers all surveillance in the United States.

And then, President Carter, when he signed the law, said, this covers all surveillance within the United States. So there is a burgeoning question as to whether the president now has the authority to wiretap Americans without going through the FISA court.

When you said, generally, there has to be a warrant, what that said to me is you were providing for an exception. Is that correct? Are you providing for an exception?

ALITO: I think that what I was addressing when I said that was what the Fourth Amendment means, the general principle that is set out in the Fourth Amendment.

And the case law under the Fourth Amendment says a warrant is generally required. But there are well-recognized situations in which a search can be carried out without a warrant. Exigent circumstances is a situation that comes immediately to mind. If...

FEINSTEIN: Well, let me stop you here. Do you recognize Justice Jackson's comment in the 1952 Steel case where he set up that tripartite framework for presidential authority?

ALITO: I do, yes.

FEINSTEIN: And when it is at its weakest is when Congress has legislated? And, in 1978, Congress did legislate and covered the horizon, so to speak?

ALITO: Yes, Senator, I recognize that and I think that's a very useful framework for addressing issues of executive power.

Now, there's a question about what the meaning of what Congress did and that would be a statutory question: What is the meaning of the provision of FISA in question?

And maybe there's no substantial argument about what is meant there, but maybe there would be an issue about what was meant there and certainly there could be an issue about the meaning of the authorization of the use of military force. How far was that intended to go?

And so this statutory question I think would -- that certainly would be an issue that could come up in this situation. And probably, you would need to -- I think you would have to resolve the statutory question before you could figure out which of the three categories that Justice Jackson set out that the case fell into.

FEINSTEIN: Thank you. I've run out of time. I'll continue this next session. Thank you.

ALITO: Thank you, Senator.

SPECTER: Thank you, Senator Feinstein.

Senator Sessions?

SESSIONS: Thank you, Mr. Chairman.

We've had a good hearing, I believe. A lot of exchanges have occurred.

I will agree with Senator Biden: I can't remember a nominee being this forthcoming. You've gone into more detail and talked closer to questions that may come up before you -- without going too far, in my opinion -- than we've seen before. You've been very open. And I've been very impressed with your analytical spirit and your ability to handle these cases.

We need an aggressive hearing. I agree with those who say that questions need to be propounded to the nominee because this is the only chance, politically, that we will have; that you will ultimately be on the bench for life, unaccountable to the political process. So it's good to ask questions.

My concern is similar to that of Senator DeWine's: that many of the accusations and allegations are unfounded or distortions are really not fair. And some of the things that have been said about you are not correct. If they were correct, you would not receive the overwhelming support of your colleagues and have their admiration so totally, as you do.

Judge Alito, we talk about the role of a judge and how you handle cases that come before you. You were asked, "What's your opinion on Lopez?" and you said, "Well, I haven't studied that case precisely or at least the background of it. I didn't sit on it."

Would you explain to us, as an appellate judge, as you do today, but also even more so as a Supreme Court justice, how cases come to you and what you should do before you make a decision or express an opinion on the ultimate outcome of a case; why you should be careful; and what this great legal system that we have arranges for before a judge makes that final decision?

ALITO: Well, certainly, Senator.

We have an adversary system. And that means that both sides get the opportunity to present their arguments.

ALITO: And we have established judicial procedures, and they are time-consuming and they are burdensome, and maybe some people would say that some of them are old fashioned, but I think they are work well.

They are designed to make sure that there's a vigorous presentation of both sides of the issue that is presented in the case at hand, not some abstract issue that might be addressed in a law review article or a broad issue that might be addressed in a piece of legislation, but an actual concrete case, a dispute between real parties that comes before the court.

Both sides have the opportunity to present the arguments that they think have a bearing on that case. The judges get the opportunity to read the briefs. And then...

SESSIONS: Can I interrupt you there? And you're talking about the appellate court.

ALITO: That's correct.

SESSIONS: There has been a trial with jurors and witnesses and trial judges and those kind of things that's already occurred. It's now on appeal. No witnesses are being called, but the transcript is available. And one side or the other is alleging that they weren't treated fairly. Is that correct?

ALITO: That's correct.

SESSIONS: So you decide whether or not a fair trial occurred. And how do you continue now with the process and how do you ultimately come to make a decision?

ALITO: Well, we receive briefs, and the briefs are well thought out by the attorneys, and it provides, if the case is well briefed, a strong presentation of the positions on both sides of the question. And if it's an issue of great public importance, there may be other people who file briefs, so-called friends of the court. And on the Supreme Court now these days they get a lot of those on both sides of many of the big issues that come before them.

So that ensures that they have a strong presentation of all the arguments that can be made on both sides of the issue, both sides of the case, and the first step in the process would be to read all of those. And then there would be an oral argument. And at that point the justices of the Supreme Court or the judges of my court...

SESSIONS: Now, oral argument means the lawyers for each party come and orally argue the case before the court, is that correct?

ALITO: That's right.

SESSIONS: Now, you should not have made up your mind even at that point, should you?

ALITO: You shouldn't. I think very often I come into an oral argument with a tentative idea about how the case should be decided, I've thought through the issue as much as I can, but my mind is open to the possibility that something will happen during the oral argument or later in my discussion with the other judges that might change my mind.

So we have the oral argument, and the lawyers will make their presentation and in that situation I have the opportunity to ask questions, unlike today, and that's a better situation to be in. But it gives me a chance to explore the issues in the case that are troubling to me, and I can pose hypotheticals to the lawyers and try to explore how far their arguments go.

And after we have the argument, the judges get together in what's known as the conference. That's a private meeting when just the judges are present. And we each discuss the case. And very often one of my colleagues will say something that makes me think about the case differently than I did going into the conference.

ALITO: But at the end of the conference, if we've all voted, then we exchange our views and we come to a conclusion about how a case should be decided.

And it's only at the end of that process that we actually have a vote on the decision, and then somebody is given the job of writing an opinion. And sometimes things even change during the opinion-writing process. There have been numerous cases in which I've had the opinion and I've been giving the job of writing an opinion to affirm or the reverse. And in the process of writing the opinion, I see that the position I had previously was wrong -- I change my mind.

And then I will write to the other members of the panel and I will say, "I've thought this through and this is what I've discovered and now I think we should do the opposite of what we agreed." And sometimes they'll agree and sometimes they don't.

So it's a long process, and it's only at the end of that whole process that I think, when the opinion is actually going to be issued, the judge is in the position to say, "Now I've done everything I can with this, and this is how I analyze the issue."

SESSIONS: And you said in your opening statement that one of the habits of minds that a good judge should develop is the habit of delaying reaching conclusions until everything has been considered.

I suppose that's why you would be somewhat reluctant to express an opinion on Lopez or Bush v. Gore or some of these other great decisions, because you would know before you rendered such an important decision in a case like that that you've given it the most thorough analysis and you've heard from all the briefs and considered all the arguments of the parties involved. Is that correct?

ALITO: That's an important part of the legal process.

If anybody has sat on a jury, they've probably been instructed by the judge not to reach any conclusions about the case until they've heard all the evidence -- not to reach premature conclusions.

Judges have the same obligation. It doesn't mean you don't think about things; you do think about them.

ALITO: But you don't reach your final conclusion until you've gone through this entire process.

SESSIONS: Well, you said earlier that no person in this country, no matter how high or powerful, is above the law, and no person is beneath the law.

Can you assure us that you will have the courage and the determination to rule according to your best and highest judgment of the value of the case regardless of whether or not it's the person who appointed you or the Congress who confirmed you or any other political pressures that may fall upon you?

ALITO: I can, Senator. I would do that to the best of my ability.

That's what I've tried to do on the Court of Appeals. And if I'm confirmed, that's what I would do on the Supreme Court.

SESSIONS: Well, I believe you will. That's your reputation. That's what other lawyers say about you. That's what professionals who know you conclude. And I think it's an important commitment that you've made to us.

You know, we have arguments about a number of cases, and the Rybar case has come up a good bit. It involved the machine gun.

I was a United States attorney, as you were. And we prosecuted machine gun cases for years. The Supreme Court has -- under Section 922, there is no jurisdictional element.

Now, historically, criminal statutes of federal law have jurisdictional elements. The most common statutes historically that were prosecuted were interstate transportation of stolen motor vehicle -- it's not a stolen motor vehicle, it's the interstate transportation that makes it a federal crime -- or the interstate transportation of a stolen property, or kidnapping: Kidnapping within a state is not a federal crime, it's only kidnapping that goes interstate.

So I guess I would ask you to explain for those who may be listening today what this historical procedure is that requires a jurisdictional element of an interstate nexus for the federal government to be able to prosecute a crime in some state or county in America.

ALITO: Yes, Senator. Certainly.

Well, let me start with the Constitution. The Constitution gives the legislative branch certain powers and they're enumerated in the Constitution.

And one of those powers is the power to regulate interstate and foreign commerce. And a great deal of legislation that Congress passed during the 20th century was regulation that was based on its power to regulate interstate and foreign commerce.

And many of the criminal statutes that Congress has passed, the federal criminal statutes, are based on Congress' power to regulate interstate and foreign commerce.

So it's necessary for each of these statutes to fall within this power to regulate interstate and foreign commerce. And one of the ways of ensuring that each exercise of this power falls within Congress' authority under the commerce clause is to require that the jurisdictional element be proven in the case.

And in the case of firearms, as I mentioned earlier, the Supreme Court has said it's enough to show that the firearm at some point in its history traveled in interstate and foreign commerce.

In my experience as a U.S. attorney and before that as an assistant U.S. attorney, was that this is not a difficult burden for prosecutors to meet. I can't recall a case during the time when I was U.S. attorney where anybody expressed the slightest problem with satisfying this.

So this is a very simple way of satisfying the interstate commerce element in the case of firearms offenses.

SESSIONS: I couldn't agree more. And that's what all the traditional firearm laws call for. And that's how we proved every case that I prosecuted.

You put somebody on -- I proved it once because it said "made in Italy" on the gun. But you prove that the gun had been transported in interstate commerce, and that's an element that gives the federal jurisdiction.

And as I understand your opinion, you said if the Congress had simply put that in the statute as an element of the offense, then it would have met constitutional muster.

So I guess I'd say to my colleagues on the other side and others, maybe we ought to check this law out and let's get up a piece of legislation that puts in the jurisdictional element like all the other historic criminal offenses have, and we get this thing done instead of fussing about it. I feel strongly about that.

But when you don't make it a jurisdictional element, then it's not a matter of proof -- is that not right, Judge Alito? -- and therefore the defendant is not having all the elements of the case proven beyond a reasonable doubt to the jury that hears the case. That's why it's important.

ALITO: That's correct.

SESSIONS: We talked about a lot of these cases. I would just generally like to express my disagreement with those who criticize the Garrett case.

It did involve the University of Alabama. And I believe that the attorney general of Alabama was correct to assert that the plaintiff could sue, could get back wages, could get their job back, but under the sovereign immunity doctrine that protects states from lawsuits, that under the way that statute was passed, they could not get money damages against the state of Alabama.

I think that was the core issue in it.

I also would like to join with Senator DeWine in his very cogent analysis of precedent and super-precedent.

SESSIONS: I think that was insightful for us and would like to be on record as joining with that.

Judge Alito, back 20 years ago, you wrote a memorandum to Solicitor General Charles Fried, who was a law professor, I guess, before he became solicitor general and went back to Harvard and is there now, a brilliant legal mind.

He was the solicitor general. You worked for him. You submitted a memorandum on a Pennsylvania case, a case that came out of Pennsylvania.

And it seemed to me to be a preliminary analysis of that issue and the question of whether or not that case -- whether the Department of Justice should intervene in that case and file a friend of the court brief.

Was it a preliminary overview of the issue and not the final brief or final summary of argument for the appeal?

ALITO: And that's the Thornburg case that you're referring to, Senator?


ALITO: It wasn't the brief, yes. It was a memorandum about whether the government should file a brief as a friend of the court.

SESSIONS: And you pointed out a number of points in that decision that was being questioned that I thought the court had overreached and gone too far.

A number of them are quite erroneous, it appeared to me. And you analyzed that very carefully. But, before you concluded your argument, you suggested -- not suggested -- you stated that you did not think a frontal assault on Roe v. Wade would be appropriate. Is that correct?

ALITO: Yes, that's correct.

SESSIONS: And was it not the position of President Reagan and the attorney general of the United States at that time that Roe v. Wade was wrongfully decided and they would seek the opportunity at some point to seek the overruling of it?

ALITO: That was the express position of President Reagan himself. He had spoken on the issue and he had written on the issue.

SESSIONS: So your opinion to the solicitor general as a young staff attorney in the Solicitor General's Office was in some ways contrary to that of the president of the United States?

ALITO; Well, I was doing what I thought my job was as an advocate, which was to outline the litigation strategy that would be in the best interests of my client, given what my client was interested in.

And it seemed to me that the strategy that I recommended was the best strategy to be followed.

SESSIONS: And did they follow your suggestion?

ALITO: No, they did not. They argued that Roe v. Wade should overruled and the Supreme Court rejected that argument.

SESSIONS: They in fact carried out a frontal assault, and it was not approved by the court.

So I think that, to me, plus your other decision in which you ruled that Health and Human Services funds could be utilized to fund an abortion for those who qualified was a close question; that case was, I thought. There was a dissent in it. But you ruled in favor of the pro-choice, the pro-abortion side of that case, even though a dissent argued that it was in error. Is that correct?

ALITO: That is correct. That's what I thought the law required. I thought we were required to defer to the Department of Health and Human Services' interpretation of the statute, and so that's how I voted. And if I had been out to implement some sort of agenda to uphold any abortion regulation that came along, then I would not have voted the way I did in that Elizabeth Blackwell case.

SESSIONS: Back in your memorandum in 1985 on the question of abortion, one of the provisions of the Pennsylvania law that was struck down by the court of appeals simply said that there must be a humane and sanitary disposal of aborted fetuses, and you thought that was unwise and you pointed out that there is a federal statute already on the books that mandates the humane disposal of excess, wild, free-roaming horses and burros. Did you not?

ALITO: Yes, that's correct. That was the statute.

SESSIONS: So this idea that every time a court rules on a pro- abortion opinion that they're always correct, I think is not true. I think the court has been awfully arrogant and dismissive of the states' rights and legitimate concerns in some of these questions that we're dealing with.

Judge Alito, you know the salary that a federal judge makes; is that right?

ALITO: I do, all too well.

SESSIONS: Do you know what it would be on the Supreme Court?

ALITO: I actually don't know exactly, no.

SESSIONS: A little more, I think. Not much. Do you think you can live on that?

ALITO: I can. I've lived on a federal judge's salary up to this point.

SESSIONS: You've been accused of favoring an all-powerful executive a couple times in this committee. Can the president cut your pay?

ALITO: No, he can't do that. The Constitution says that, fortunately.

Well, nobody can. The president certainly can't, and Congress can't either.


SESSIONS: A sigh of relief there. They can increase it though, right?

ALITO: They can, yes.

SESSIONS: Well, we have a tight budget. Senators and congressmen up here, sometimes privately, they'll tell you they think they need to be paid more. But we're prayed pretty generously in my view. And maybe we need to set some examples about financial management. Maybe we'd like to do more, but it's difficult.

But I raise that because a Supreme Court can declare null and void a legislative enactment by the Congress, can it not, if it violates the Constitution in their opinion?

ALITO: Yes, it can.

SESSIONS: Does anybody review the Supreme Court's review?


SESSIONS: And Congress can cut off money for any program they want to. In fact, the Antideficiency Act says it is a crime for any agency of government to spend money that has not been appropriated by Congress. Is that a reviewable act by anyone, for Congress not to fund a program or agency of the United States government?

ALITO: No, I don't think that's reviewable.

SESSIONS: Aren't there things that the executive branch can do that are not reviewable?

ALITO: There are certainly some things that are not reviewable. Vetoes are not reviewable, pardons are not reviewable.

SESSIONS: So the mere allegation that an act of the president is unreviewable may not be as disastrous as it sounds or as bad as it sounds because certain branches are given certain powers.

ALITO: That's correct.

SESSIONS: I'd like to talk a little bit about this question of activism. And I want to be frank about it. Some of our liberal colleagues have correctly made the point that conservatives can be activists, too.

And if you take the definition of activism as an action by a judge who allows their personal, political or social or moral values to override their commitment to the law, do you believe that a judge who is conservative can be an activist just as easily as one who's liberal?

ALITO: Yes, I do. I don't think that activism has anything to do with being a liberal or being a conservative; it has to do with not following the proper judicial role. It has to do with a judge's substituting his or her own views for what the Constitution means and for what the laws mean.

SESSIONS: Now, if a statute passed by Congress plainly violates the Constitution, is it an activist decision if the court strikes it down, in your opinion?

ALITO: No. I think that's been settled since Marbury v. Madison back at the beginning of the 19th century, that when a case is presented to the Supreme Court and there's a question raised about the constitutionality of a statute and the court concludes that the statute is unconstitutional, it's the obligation of a court to follow the Constitution and not the statute.

SESSIONS: Well, if you take the definition of activism I think that Senator Hatch and others have used that indicates, as we just discussed, that it's departing from the faithful application of the law, I think you can have liberal and conservative activists.

But I would just say to you, the mere striking down of a statute as unconstitutional is not activism -- not if you're faithful to the Constitution and to the laws of the land.

SESSIONS: And I would say this: I believe, on our side of the aisle, the deep concern that we have about judicial activism is a legitimate one.

We believe that there has been a liberal social agenda being promoted too often by the courts that is foreign to history and contrary to the wishes of the American people.

I believe your philosophy is not one to enforce a conservative activism. I believe your philosophy is simply to follow the law and let the political branches debate these issues and decide them through the popular political process. Is that fair to say?

ALITO: That's exactly correct. The judiciary should do what it is supposed to do, but it has to have respect for the political process. And our constitutional system sets up a government under which most of the decisions, the policy decisions, the things that affect people in their daily lives -- the spending of money, taxing, decisions about foreign policy, and many other areas -- are to be made by the political branches of the government.

And the judiciary's role is confined to enforcing the Constitution and enforcing the laws and not going beyond that.

SESSIONS: As you analyze how to interpret the Constitution of the United States or a statute passed by the United States Congress, do you believe that authoritative insight can be attained by reading the opinions of the European Union?

ALITO: I don't. I don't think that it's very helpful. In fact, I don't think it is helpful to look at the decisions of foreign courts for the interpretation of our Constitution.

I think we can do very well with our own Constitution and our own judicial precedents and our own traditions. And I don't say that with disrespect to the other countries, but I don't think that there are insights to be provided on issues of American constitutional law by examining the decisions of foreign courts.

I think that's it's very interesting from a political science perspective to see what they've done and I've personally been interested in this over the years.

ALITO: And I think it's flattering to us that so many other countries have followed our judicial traditions.

But on issues of interpretation of our Constitution, I don't think that that's useful.

SESSIONS: Judge Alito, this is a big deal in our country today.

Millions of Americans believe that the court is losing discipline, that it's not remaining faithful to the Constitution. And, in fact, I share many of those views, a lot of people do.

And do you think that if a court, in fact, is not faithful to the law but allows personal or political or social views to influence their decisions, that this could in the long run endanger public respect for law and even undermine the great heritage of the rule of law that we have in this country?

ALITO: I think that everybody who holds a public office under the Constitution has a solemn responsibility to follow the Constitution and the laws that define the role that person, that officer is supposed to play.

And I think that the continued success of our constitutional system and public respect for the constitutional system are dependent on people who have the public trust doing that, making a really strong effort to follow the provisions of the Constitution and other laws that define the role that they are supposed to play.

SESSIONS: I'd like to just once more touch on this Groody case in which there was a search of a young girl. A warrant was issued, was it not, by a federal magistrate? Was it a federal magistrate?

ALITO: It was a state magistrate.

SESSIONS: A state magistrate.

And police officers go to the state magistrate and they get a warrant and the magistrate says that the affidavit is made a part of the search warrant.

SESSIONS: And the officers take it, and in their search warrant they made affidavit that the individuals in this house known for distributing drugs often had drugs on their persons, and they then went and executed the warrant after going to the court and getting approval. And they find people on the premises.

And there were two females and a female officer took the two females into a bathroom and did a quick search by asking them to pull down their outer garments -- not all their garments -- pull up their blouse, and determined they had no contraband or weapons on them. And that was that.

And the case came before you, years later I suppose, on a lawsuit against the police officers. And that's what you were ruling on, were you not?

ALITO: That's right, whether they were liable for money damages. And under the law, if they had a reasonable belief that they were authorized by the warrant to search people who were found on the premises, then they should not be liable for civil damages.

The warrant had incorporated the affidavit for purposes of establishing probable cause and the officers had said in the affidavit that there is probable cause to believe that people on the premises may have drugs on their possession, and the magistrate judge had accepted that by incorporating the affidavit for purposes of probable cause. And under those circumstances, I thought that, at a minimum, it was reasonable for the officers to believe that -- the judicial officer, the magistrate had said that they were to do exactly what they did.

SESSIONS: I agree. 

Thank you, Mr. Chairman.

SESSIONS: Thank you, Senator Sessions.

Thank you, Judge Alito.

At this point we'll take a break until five minutes to 5.

SPECTER: We now turn to Senator Feingold for 30 minutes.

FEINGOLD: Judge, thank you for all your patience today and throughout this process.

ALITO: Thank you, Senator.

FEINGOLD: There's already been a lot of discussion of this topic today, but I'd like to be sure I understand your opinion about whether the president, as commander in chief, can ignore or disobey an express prohibition that Congress has passed.

The torture statute is one example, but obviously I could imagine a variety of others as well, as I'm sure you could.

Here is the question: What are the limits, if any, on the president's power to do what he thinks is necessary to protect national security, regardless of what laws Congress passes?

ALITO: Well, when you say regardless of what laws Congress passes, I think that puts us in that third category that Justice Jackson outlined, the twilight zone, where, according to Justice Jackson, the president has whatever constitutional powers he possesses under Article II, minus what is taken away by whatever Congress has done by an implicit expression of opposition or the enactment of a statute.

To go beyond that point, I think we need to know the specifics of the case. We need to know the constitutional power that the president -- the type of executive power the president is asserting and the situation in which it's being asserted and exactly what Congress has done.

FEINGOLD: Then, let's take a more concrete example. Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations, in violation of the criminal and foreign intelligence surveillance statutes of this country?

ALITO: That's the issue that's been framed by the developments that have been in the news over the past few weeks.

And, as I understand the situation, it can involve statutory questions, the interpretation of FISA and the provision of FISA that says that no wiretapping may be done except as authorized by FISA or otherwise authorized by law and the meaning of the authorization for the use of military force and then constitutional questions.

And those are issues, as I said this morning, that may well result in litigation. They could come before me on the Court of Appeals for the 3rd Circuit. They certainly could come before the Supreme Court.

And those are weighty issues involving two of the most important considerations that can arise in constitutional law, the protection of the country and the protection of people's fundamental rights.

And I would have to know the specifics in the arguments that were made.

FEINGOLD: Well, they are indeed important questions. And that's why it's so important for me to figure out where you would be heading on this kind of an issue.

And, in fact, the question I just asked you was not something I formulated right now. It's the question that I asked word for word of the attorney general of the United States at his confirmation hearing in January 2005.

And he answered as follows: "Senator, the August 30 memo" -- that's the memo that we sometimes refer to as the torture memo -- "has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So, it's been rejected by the executive branch. I categorically reject it.

And, in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture. "And so what you're really discussing is a hypothetical situation," was the end of his quotation.

FEINGOLD: Well, we now know of course that it wasn't a hypothetical situation at all. When the attorney general said he categorically rejected the torture memo, including the section regarding the commander in chief's authority to ignore criminal statutes, he was also not being straight with this committee.

So I'd like you to try to answer this question: Can the president violate or direct or authorize others to violate the criminal laws of the United States?

ALITO: The president has the obligation under Article II of the Constitution to take care that the laws are faithfully executed.

And the laws mean, first and foremost, the Constitution of the United States. That applies to everybody. It applies to the president. And the president, no less than anybody else, has to abide by the Constitution.

And it also means that the president must take care that the statutes of the United States that are consistent with the Constitution are complied with.

And the president has an obligation to follow those statutes as well.

Those are the important general principles. And the application of them in a particular case depends on the facts of the case and the arguments. And a judge needs to know the arguments that are being made on both sides before addressing -- before reaching a conclusion about the result.

Those are the overriding considerations.

FEINGOLD: Well, I take that answer -- and obviously you may not be able to comment on it because of the possibility of it coming before you.

I take that to be a pretty serious answer in terms of the president's responsibilities to uphold and make sure that the laws are followed, and including the criminal laws of the United States.

So given the fact that this interpretation of the FISA law may well come before you at some point, I take it, as you've indicated, that would not only be an initial part of your analysis but an awfully important analysis of whether the president has the power to override these criminal statutes.

And I certainly want to say for the record I don't believe the president has the ability to do that in this case. And, in fact, I think it would be almost impossible to interpret the FISA law in any other way than it clearly states; that it is the exclusive authority with regard to wiretapping outside of the criminal law.

FEINGOLD: And you said earlier today, Judge, in response to Senator Leahy that these types of gravely important constitutional questions very often do not end up being resolved by the judiciary but, rather, by the other two branches.

So what is the proper role of the judiciary in resolving a dispute over the president's power to disobey an express statutory prohibition?

ALITO: Well, the judiciary has the responsibility to decide cases and controversies that are presented to the judiciary. And that means that there has to be a concrete dispute between parties and the parties have to have standing under the Constitution.

And there's a whole doctrine that's called the political question doctrine, but it's a very misleading term for people who are not lawyers.

It doesn't mean that the dispute has something to do with politics or anything like that. It means that the dispute, in the sense in which people usually use the term "politics." It means that it's a kind of dispute that the Supreme Court has outlined as being not a proper dispute to be resolved by the judiciary, involving a constitutional issue that should be resolved often between the branches of governments.

And I was talking earlier about some things that the president does that are not reviewable -- vetoes, pardons, et cetera. There are things that Congress does that are not reviewable -- impeachment, et cetera.

In Baker v. Carr, Justice Brennan's opinion outlined a whole list of factors that inform the analysis of whether something is a justiciable dispute. And sometimes these disputes between the branches of government are held by the Supreme Court to fall into that category of being disputes that can't properly be resolved by the courts.

FEINGOLD: Do you expect that this matter of the warrantless searches is likely to be resolved with regard to the initial political question doctrine? Or do you think it would be likely to be resolved on the merits with regard to the statute and the Constitution?

ALITO: I don't think could answer that without providing sort of an advisory opinion about something that could well come up. If this does come up in litigation, then the courts have an obligation to decide whether it's a justiciable dispute.

The political question doctrine -- this doctrine of issues that are not justiciable -- often involves conflicts between the branches of the government. And when a person is asserting a person's individual rights are violated, that is the type of case that is often resolved -- I mean, typically resolved by the judiciary.

FEINGOLD: Well, Judge, aren't we going to be in kind of a tough spot if we find out the Supreme Court can't help us figure out whether the FISA law is an exclusive authority or not? Isn't that going to be hard to resolve between the executive and the Congress?

ALITO: Well, Senator, when I said in reference to Senator Leahy's question that often disputes between the two branches are resolved without resorting to the courts, I don't think I was referring specifically to this issue.

ALITO: And if I gave that impression, that was a false impression. I think what I meant to say and what I hope that I did say was that separation of powers disputes in general sometimes fall within this doctrine.

FEINGOLD: Noted a few times today that the questions of the president's power in the wiretapping area and other areas will likely come before the courts, including the Supreme Court. You just did that.

As I understand it, you've prepared for these hearings over the past few months with a variety of practice sessions. Some have called them moot courts or murder boards. Was the question of the president's power in time of war to take action contrary to a federal statute ever raised in any way during any of the practice sessions for these hearings?

ALITO: I have had practice sessions on a great variety of subjects, and I don't know whether that specific issue was brought up. It may have been. But what I can tell you...

FEINGOLD: You don't recall whether this issue...

ALITO: No, the issue of FISA certainly has been something that I have studied, and this is not -- FISA is not something that has come before me as a judge.

FEINGOLD: But you don't recall whether or not this was covered in the practice sessions?

ALITO: No, no, the specific question that you raised about the conflicts between the president's authority to say that a statute enacted by Congress should not be followed. But the general area of wiretapping and foreign intelligence surveillance, wiretapping...


FEINGOLD: ... the recent events that have led to this dispute...

ALITO: And the recent events.

FEINGOLD: ... and the possibility that it may come before you. Right, Judge?

ALITO: That's correct.

FEINGOLD: OK. Who was present at these practice sessions where these questions were discussed? And who gave you feedback or suggestions or made any comment whatsoever on the answers you gave?

ALITO: Nobody at these sessions or at any of the sessions that I had has ever told me what to say in response to any question.

FEINGOLD: I just asked -- were there no comments...

ALITO: The comments that I've received...

FEINGOLD: ... or no advice?

SPECTER: Let him answer the question, Senator Feingold.

ALITO: The advice that I've received has gone generally to familiarizing me with the format of this hearing, which is very different from the format of legal proceedings in which I've participated either as a judge or previously when I was arguing a legal issue as a lawyer.

But nobody has told me what to say. Everything that I've said is an expression of my own ideas.

FEINGOLD: And I don't question that, Judge. I asked you, though, whether anybody gave you any feedback or suggestions or made any comment whatsoever on the answers you gave in the practice sessions.

ALITO: In general? Yes, they've given me feedback, mostly about the form of the question, the form of the answers.

FEINGOLD: Have you received any other advice or suggestions directly or indirectly from anyone in the administration on how you should answer these questions?

ALITO: Not as to the substance of the question. No, Senator.

FEINGOLD: Only as to the style?

ALITO: That's correct; as to the format. Not as to what I should say I think about any of these questions. Absolutely not. I've been a judge for 15 years. And I've made up my own mind during all of that time.

FEINGOLD: Again, I'm not suggesting that.

ALITO: I just want to make that clear

FEINGOLD: I asking whether or not somebody talked about the possible legal bases that the president might assert with regard to the ability to do this wiretapping outside of the FISA statute. Was that kind of a discussion held?

ALITO: Nobody actually told me the bases that the president was asserting. I found the letter that was released last week or the week before by an assistant attorney general setting out arguments relating to this on the Internet myself and printed it out.

And I studied it to get some idea of some of the issues that might be involved here. And I looked at some other materials that legal scholars have put out on this issue. But nobody in the administration actually has briefed me on what the administration's position is with respect to this issue.

FEINGOLD: Does it strike you as being inappropriate for members of the Department of Justice or the White House staff who are currently defending the president's actions in the NSA domestic spying program to be giving you advice on how you might handle questions about that topic in the hearing?

ALITO: It would be very inappropriate for them to tell me what I should say. And I wouldn't have been receptive to that sort of advice. And I did not receive that kind of advice.

FEINGOLD: Thank you, Judge.

I want to come back to Mitchell v. Forsythe which you participated in the Solicitor General's Office. As we've already heard, that case considered the government's argument that President Nixon's attorney general, John Mitchell, should be granted absolute immunity for authorizing warrantless wiretaps.

FEINGOLD: And you signed the government's brief, making that argument. The Supreme Court rejected the claim of absolute immunity, noting that the attorney general acting in the inherently secretive national security context has few built-in restraints.

Justice White, writing for the court in Mitchell said, quote, "The danger that high federal officials will disregard constitutional rights in their zeal to protect national security is sufficiently real to counsel against affording such officials an absolute immunity," unquote.

Now, that statement still has a lot of relevance today. Doesn't it?

ALITO: Yes, it does. Absolute immunity is quite restricted under our legal system.

But there are some high-ranking officials in all three branches of the government who do have absolute immunity just from civil damages, not from criminal liability or from impeachment or removal from office or for injunctive relief.

They can be ordered to comply with the Constitution. But as far as civil damages are concerned...

FEINGOLD: But when you were you at the Solicitor General's Office, you wrote this memo about the case, saying, quote, "I do not question that the attorney general should have this immunity, quote, "for authorizing warrant-less wiretap."

Why did you not question the attorney general's absolute immunity?

ALITO: First of all, because it was the position that our client, whom we represented in an individual capacity -- and it was his money that was at stake here -- wanted to make.

So, we had an obligation that was somewhat akin to the obligation of a private attorney representing a client.

Secondly, it was an argument to which the department was committed. It had been made in Kissinger v. Halpren (ph) in the Carter administration. It was repeated in Harlow v. Fitzgerald in the Reagan administration.

In Harlow v. Fitzgerald, the Supreme Court, while rejecting the idea that cabinet officers in general should have absolute immunity from civil damages, had said something like -- and I'm not going to be able to provide an exact quote, but something like -- but the situation could well be different for people who were involved in sensitive national security matters or foreign matters.

FEINGOLD: OK, but you said in your memo, quote, "I do not question the attorney general's absolute immunity." You did not quote it as the position of our office or, as you were just saying, this administration has argued this in the past.

You, in effect, injected yourself into the statement. Clearly, you were expressing your personal opinion on this legal issue, were you not?

ALITO: Senator, I actually don't think I was expressing a personal opinion.

I was saying that in my capacity as the writer of this memo who was recommending that the argument not be made even though it was one that our client wanted to have made, I wasn't disputing the general argument to which the department was committed.

But I thought that we should take a different approach, that we should just argue the issue of appealability. But that was not the approach that was taken.

FEINGOLD: Let's go on to the solicitor general's brief in the Mitchell case, which you signed.

That brief argues strongly for the need for absolute immunity, arguing that it is far more important to give the attorney general as much latitude as possible in the national security context than to, as the brief puts it, quote, "defer the occasional malevolent official," unquote, from violating the law.

Now, I find this statement particularly troubling today in light of the current administration's warrant-less wiretapping in the name of national security. Do you agree with that statement in the brief, that broad deference is warranted even if some attorneys general may abuse their power?

ALITO: I think the issue of the scope of the immunity that the attorney general has is now settled by Mitchell v. Forsythe. And that's the law. It was considered -- the argument was considered by the Supreme Court and they decided the question.

There are -- judges have absolute immunity for their judicial decisions. Members of Congress and their staff have absolute immunity for things that they do that are integral to the legislative process. The president has absolute immunity from civil damages for the president's official acts.

But absolute immunity is used very sparingly because of just the considerations that you're referring to.

But the consideration on the other side is that people who are involved in lots of things that make other people angry, judges deciding cases, members of Congress passing legislation, presidents doing all sorts of things, would otherwise be subjected to the threat of so many political reprisals that they would be driven from office.

And it's a policy judgment that our law has made that some people should have absolute immunity, but it's used very sparingly.

FEINGOLD: And I find your comments interesting because, of course, the argument is often fairly made that after 9/11 we have to recognize the important role that our executive plays in protecting the American people.

FEINGOLD: But I would also argue that it is a particularly compelling time to make sure there isn't undue deference given the types of powers that the executive may seek to use in trying to fight this threat.

In your class notes from a seminar you gave at Pepperdine Law School on civil liberties in times of emergency, you repeatedly raise the question of whether the judiciary has the capability to review certain types of determinations made by the executive branch in national security cases and particularly factual issues.

And We've recently seen an example of a court evidently expressing its frustration in a national security case when the facts presented to it by the executive, which it had accepted, apparently did not hold up.

And of course I'm talking about the 4th Circuit's serious concern it hadn't been told that Jose Padilla needed to be held militarily as an enemy combatant because he had plotted to use a dirty bomb in the United States and then finding out that three and a half years later the Justice Department wanted to transfer him to law enforcement authorities to stand trial for entirely different and much less serious crimes.

In Padilla, the 4th Circuit was originally willing to defer to the executive's assertion that it needed to hold Padilla militarily, but was quite upset -- and justifiably, I think -- to find out that it might not have deserved such deference. And I'm not going it ask you about that case because I know that case is coming before the Supreme Court.

But I do want you to say something about the role of the judiciary in evaluating the facts presented to it in national security cases by the executive branch.

How does a court decide whether to rely on the facts presented to it by the executive in a national security case?

ALITO: What I was doing in that talk at Pepperdine was framing that question. And it's a lot easier to frame the question and to ask students to think about it and give me their reactions than it is to answer it.

We've had examples of instance in which the judiciary in the past has had to confront this issue of reviewing factual presentations of the executive in times of national crisis. And there have been instances in which the judiciary has accepted -- and I'm thinking of the Japanese internment cases -- has accepted, which were one of the great constitutional tragedies that our country has experienced -- has accepted factual presentations by the political -- by the executive branch that turned out not to be true and from my reading of what went on were not believed to be true by some high-ranking executive officials at the time.

But there is the problem of judicial fact-finding, which I was talking about earlier, and the context of things that may be taking place on the battlefield, for example, or things that are taking place in wartime probably are more difficult for the judiciary to evaluate than other factual questions.

ALITO: So that's the dilemma. And I can't say that I can provide a clear answer to it.

FEINGOLD: I do appreciate your reference in the Koramatsu to a case and the problem there and how this is going to become an even more serious issue.

I'm going to switch to something else, the matter of the Vanguard case and the recusal. That has been characterized today as a nonissue. One senator said it's a joke. It's ridiculous. Another one said it's absurd, just plain absurd. And another -- same senator said it was a blatant tactic to torpedo your nomination.

Well, Judge, I was the senator that asked Judge Roberts very searching questions about whether or not he should have recused himself in the Hamdan case. And I'm sure he didn't enjoy it. I didn't particularly enjoy asking the questions. But in the end, I voted for him.

So let me just say to my colleagues, I reject this idea that when we come here to do our job of examining a nominee, that asking questions about an ethical issue is somehow a political game or an attempt to torpedo a nomination.

This idea of insulating yourselves and insulating the nominee before we've even asked questions about a subject really is not conducive to the kind of process that this chairman and this ranking member have made possible on the first nomination and this one as well.

So I think this is our job. And I ask you these questions in the spirit.

And I might add that although my time is limited that, when you hear the actual facts of it, whatever conclusion we draw, it's certainly not a trivial matter. It's something that I think we ought to cover.

So let me begin by following up on Senator Kennedy's question regarding the promise you made to the committee. In 1990, in your Senate questionnaire at the time of your nomination to the 3rd Circuit, you were asked how would you handle potential conflicts of interest.

You told the committee that you did not believe conflicts of interest relating to your financial interests were likely to arise. Nevertheless, you wrote, quote, "I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney or the First Federal Savings & Loan of Rochester, New York," unquote.

You also wrote that you would disqualify yourself from any case involving your sister's law firm and from any case in which you participated or that was under your supervision in the United States attorney's office.

Now, whether or not such recusals are required under the federal recusal law, your statement to the commitment was clear, unambiguous and not time limited. And I think for that reason alone, it is more than legitimate to ask some questions in front of this committee about this.

This morning, Senator Hatch read from a letter from the ABA, apparently received yesterday, although we did not see it until today. That letter talked about what you told the ABA when asked about Vanguard and the other ethics issues.

You also answered a number of questions from Senator Hatch about the case.

But your responses to both the ABA, as far as we can tell from the letter, and Senator Hatch did not say anything at all about your promise to this committee.

Instead, you responded by saying that you didn't notice the recusal issue because you did not get so-called clearance sheets in this case, because it was a pro se case and that you didn't, quote, "focus on the issue of recusal."

You also didn't mention something that the clerk of your court told us in a letter, that all judges have standing recusal lists that all cases, all cases, both pro se cases and cases where the parties are represented by counsel, are checked against before they are sent to judges.

FEINGOLD: So my first question is this: After you were sworn in as judge, did you notify the court of your commitments to the Senate and request that the Vanguard companies, Smith Barney and First Federal Savings & Loan be included on your standing list of priorities whose involvement in a case would require your recusal?

ALITO: Senator, I don't have a copy of the initial computer list, so I can't answer that question.

At some point, Vanguard -- the computer lists that are available from, I think, 1992 and 1993 do not have Vanguard on it and I don't know why that is so.

FEINGOLD: So you don't recall whether you notified them or not?

ALITO: I do not. No.


Judge, we know you notified the clerk in 1990 that the U.S. attorney's office and your sister's law firm should be on your standing recusal list because you recused yourself from a number of such cases in the first several years you were on the bench.

And we also finally received additional documents just yesterday from the court. These documents show that the Vanguard companies and the other financial entities you listed in 1990 were not on your standing recusal list, which you approved in 1993, 1994, 1995 or 1996.

Do you remember removing them from your standing recusal list or is it fair to assume -- or is it your belief that they were never put on your recusal list?

ALITO: Senator, I don't know.

I don't know whether they were removed. I don't think I ever told the clerk's office: Take them off. It may be that at some point I submitted a new list and they were not on the list.

I do think it's important to keep in mind that this list is just an aid for the judge. This is not a comprehensive list of everything that will cause a judge to recuse.

FEINGOLD: I understand. I just want to get the facts down.

So to be clear on the facts, there's no evidence that you requested that Vanguard appear on your standing recusal list before 2003 when you informed the clerk that Vanguard and apparently also Smith Barney should be added, and you don't have any independent recollection of adding them to the list before then either. That's correct, isn't it?

ALITO: That's correct.

FEINGOLD: You explained to the ABA that the problem in these cases was that the conflict screen system was not working in these cases. And you told Senator Kennedy and Senator Hatch this morning that there were some oversights in this case.

And you wrote in a November 10th letter to Senator Specter: Due to an oversight it did not occur to you that Vanguard's status might call for your recusal. But it seems that the problem was not that the screening program was not working or that there was a computer glitch, as you and the White House originally suggested, but either that Vanguard was not on your recusal list and you didn't remember your promise or that you did not recognize that Vanguard was a party in the case. Now, isn't that a fair characterization?

ALITO: Well, there was an oversight. And the oversight was on my part in not focusing on the issue of recusal when I first received the case.

FEINGOLD: So there wasn't -- so the problem really -- you can admit now, can't you, that this was not a computer glitch or a failure of the screening system? You're really saying something very different at this point.

ALITO: I'm not saying something different as to the screening system. The screening system was exactly what I described this morning.

ALITO: And I described that to the ABA.

FEINGOLD: But you don't think it was a computer glitch anymore, do you?

ALITO: It was not a computer glitch. And if I could just explain, the origin of that was that, when I was down here shortly after the president announced his intention to nominate me, I started to receive questions about this Vanguard issue.

And I was receiving information from our clerk's office. And, based on the information that I received, it was my impression that there had been a computer glitch. And that was the origin of that statement. And that information that I...

FEINGOLD: Let me ask you this in my last few seconds. When you wrote to Judge Greca (ph) indicating that would you recuse yourself from the Monga v. Ottenberg case, why did you feel the need to argue that you weren't in fact, required to do so?

Why not just admit you made a mistake, agree to recuse and move on? Why didn't you just do that when the issue was raised here, instead of coming up with these different explanations that, in some cases, I think, have become unconvincing?

ALITO: Well, Senator, when the recusal motion came in, I was disturbed by it and I wanted to see what the code of conduct exactly required in this context.

Twelve years had gone by. And no Vanguard case had come up and I hadn't had an occasion to look at this issue. And when I looked at it -- and the recusal motion was very harsh and it accused me of unethical conduct. And I took it seriously. And I wanted to see what the code required.

And I researched it and it was my conclusion that I was not required by the code to recuse.

But then I went on and said: But I still don't want to participate in this case. And I would like to have the initial decision vacated and make sure that Ms. Maharaj had an entirely new appeal. And that's what I asked for and that's what was done.

FEINGOLD: Thank you, Judge.

HATCH: Mr. Chairman?

SPECTER: Senator Hatch?

HATCH: On this particular issue, could I just take two minutes out of my next round?

SPECTER: If you want to comment, you may. And Senator Feingold should have an opportunity to respond.

HATCH: Sure.

On the form that you filled out, the question was: "Explain how you will resolve any potential conflict of interest, including the procedure you will follow in determining these areas of concern. Identify the categories of litigation and financial arrangements that are likely to present potential conflicts of interest during your initial service in the position to which you have been nominated."

HATCH: Now, this case arose 12 years later, didn't it?

ALITO: Yes, it did, Senator.

HATCH: That's hardly your initial service. To be held to that type of a standard, especially in a case that every ethics professor I know of says you didn't do anything wrong in, seems to me is going a little bit beyond the pale here. And it is overblown. And, frankly, I think you got to read the whole thing. You're a good lawyer and you agreed to do it, but it was during your initial service.

Now, I guess you could interpret initial service to be a year or two or three years. But 12 years? I don't think so.

SPECTER: Senator Feingold...


FEINGOLD: Yes. I mean, the fact is the nominee continues to have the holdings in Vanguard. They've appreciated in value. Time hasn't changed that. I think the judge here was at least trying to suggest there might have been some mistake made here, and instead we're getting sort of after-the-fact justifications that put some kind of a time limit on the promise he made to this committee. And there was no time limit on the promise that was made to the committee.

HATCH: I still have 30 seconds left.

Judge, number one, you've researched it and you didn't have to recuse yourself. You concluded that.

ALITO: Yes, I did.

HATCH: Number two, these ethics professors have concluded that. right?

ALITO: That's right.

HATCH: Number three, you have tried to comport with the highest standards of ethics during your whole 15 years on the bench. Right?

ALITO: I have tried to do that...

HATCH: Number four, I believe we'll have judges from that court who will say that you have.

SPECTER: Senator Feingold?

FEINGOLD: Mr. Chairman, I'm curious if this isn't a situation where he felt the need to recuse himself, why he would have put Vanguard on the list as something he should recuse himself from after the fact.

HATCH: Because he was mistaken. That's why.

SPECTER: All right, we're going move on now. I think that this slight exchange is permissible as an exception to our general rules. It livens up the afternoon.


HATCH: I want my two minutes back.

SPECTER: Anything at about 5:30 in the afternoon is welcome.

LEAHY: The chairman was disturbed by my snoring over here.


Continue on to Part III. To read Part I of the transcript, click here.

Courtesy FDCH e-Media

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