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

Courtesy FDCH e-Media
Tuesday, January 10, 2006 7:11 PM

The transcript picks up with Sen. Graham's testimony.

SPECTER: Senator Graham?

GRAHAM: Hello?

(LAUGHTER)

ALITO: Hello, Senator.

GRAHAM: That was an interesting exchange.

GRAHAM: I guess there's no rule against beating a dead horse, or we'd all have quit a long time ago.

(LAUGHTER)

So in the next 30 minutes, I'm going to ask you the same questions you've been asked for a whole day.

(LAUGHTER)

And I hope you'll understand if any us come before a court and we can't remember Abramoff, you will tend to believe us.

(LAUGHTER)

(CROSSTALK)

GRAHAM: Now I know why they give you a lifetime appointment for doing this. I was skeptical before, but I think once is enough in a lifetime.

For what it's worth, I think you've done a great job. You've been very forthcoming. You've seldom used, "I may have to decide that." You've answered a lot of questions.

And I particularly enjoyed Senator Feingold's questions about the executive power. And I will pick up on that.

Number one, from a personal point of view, do you believe the attacks on 9/11 against our nation were a crime or an act of war?

ALITO: That's a hard question to answer.

GRAHAM: Good.

ALITO: That's a way of buying 30 seconds while I think about the answer.

Senator, I think that what I think personally about this is really not -- it's not something that would be -- that would inform anything that I would have to do as a judge.

GRAHAM: Well, Judge, I guess I disagree. Because I think we're at war. And the law of armed conflict in a war time environment is different than dealing with domestic criminal enterprises. Do you agree with that?

ALITO: It certainly is.

GRAHAM: We have laws on the book that protects us, the Fourth Amendment included, from our own law enforcement agencies coming against our own citizens. But we also have laws on the books during a time of war to protect our country from being infiltrated by foreign powers and bodies who wish to do harm to us. That's a totally different legal concept. Is that correct?

ALITO: I'm reluctant to get into this because I think things like act of war can well have particular legal meanings in particular context, under the Constitution...

GRAHAM: Do you doubt that our nation has been in an armed conflict with terrorist organizations since 9/11, that we've been in an undeclared state of war?

ALITO: In a lay sense, certainly, we've been in a conflict with terrorist organizations. I'm just concerned that, in the law, all of these phrases can have particular meanings that are defined by the cases and are...

GRAHAM: That's very important. And let's have a continuing legal education seminar here about the law of armed conflict in the Hamdi case.

The Hamdi case is precedent, is that correct?

ALITO: It certainly is.

GRAHAM: It's a decision of the Supreme Court. And it tells us at least two to three things. Number one, it tells us something that I find reassuring; that the Bill of Rights, the Constitution, survive even in a time of war.

ALITO: That is certainly true.

GRAHAM: So, there's a holding in that case that I want to associate myself with, and I think Senator Feingold does; that, even during a time of war when your values are threatened by an enemy who does not adhere to those values, they will not be threatened by your government unless there's a good reason. Do you agree with that, sir?

ALITO: Senator, I agree that the constitution was meant to deal with all of the contingencies that our country was going to face.

I think the framers hoped that we would not get involved in many wars but they were students of history and I'm sure they realized that there would be wars. They provided for war powers for the president and for Congress. And the structure is meant to apply both in peace and in war.

GRAHAM: And you said in your previous testimony that no political figure in this country is above the law, even in a time of war.

ALITO: That is correct.

GRAHAM: OK. There's another aspect of the Hamdi case that no one's picked up on, but I will read to you: "In light of these principles, it is of no moment that the authorization to use military force does not use specific language of detention because detention to prevent a combatant's return to the battlefield is a fundamental instant of waging war."

In permitting the use of necessary and appropriate force, Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

GRAHAM: And those circumstances were a person alleged by the executive branch to be an enemy combatant. And one of the principles we found from the Hamdi case that because we are, in my opinion, at war and Congress has authorized the president to use force against our enemies, the executive branch, according to the Hamdi case, inherent to his power of being commander in chief, can detain people who have been caught on the battlefield.

Does that make sense to you? Do you agree that's a principle of the Hamdi case?

ALITO: That is a principle of the Hamdi case.

GRAHAM: And it makes perfect sense. Because if we catch someone in Afghanistan or Iraq or any other place in the world who is committing acts of violence against our troops or our forces, or we catch people here in the United States who have infiltrated our country for the purpose of sabotaging our nation, there is no requirement in the law to catch and release these people. Is there?

ALITO: Well, Hamdi speaks to the situation of an individual who was caught on the battlefield...

GRAHAM: In the history of our nation, when we captured German and Japanese prisoners, was there ever a legal requirement anybody advanced that after a specific period of time you have to let them go?

ALITO: It's my understanding that the prisoners of war who were taken in World War II were held until the conflict was over.

GRAHAM: It would be an absurd conclusion for a court or anyone else to tell the executive branch that if you caught somebody legitimately engaged in hostile activities against the United States that you have to let them go and go back and fight us again. That makes no sense; does it?

ALITO: Well, I explained what my understanding is about how this matter of holding prisoners was handled in prior wars. This issue was addressed in Hamdi, or it was discussed in Hamdi in the context...

GRAHAM: In the Padilla case they held an American citizen who was engaged in hostile activities against the United States, allegedly, as an enemy combatant.

GRAHAM: And the 4th Circuit said the president, during a time of hostility, has the ability to do that.

Do you agree that that's a part of our jurisprudence?

ALITO: That was -- the holding in Padilla?

GRAHAM: Yes.

ALITO: Yes. That was the holding of the lower court -- of Padilla, yes.

GRAHAM: The point I'm trying to make is that when you're engaged in hostilities there are some things that we assume the president will do.

If we don't kill the enemy, we capture the enemy. The president as the commander in chief will make sure they don't go back to the battle. Number two, that if we catch someone and there's a question to their status whether or not you're a prisoner of war in the Geneva Convention, are you an enemy combatant, who traditionally in our constitutional democracy determines whether or not the status of a person engaged in hostilities?

ALITO: Well, Padilla -- I'm sorry, Hamdi said that a person who was being detained, an unlawful person who's asserted to be an unlawful combatant and who is being detained has due process rights. And the issue of the type of tribunal -- and they explained to some degree how that would be handled.

But the identity of the particular tribunal that would be required to adjudicate that was not an issue that was decided in Hamdi or any of the other cases.

GRAHAM: Can you show me an example in American jurisprudence where the question of status, whether a person was a lawful combatant or an unlawful combatant, was decided by a court and not the military?

ALITO: I can't think of an example. I can't say that I am able to survey the whole history of this issue, but I...

(CROSSTALK)

GRAHAM: Can you show me in a case in American jurisprudence where an enemy prisoner held by our military was allowed to bring a lawsuit against our own military regarding their detention?

ALITO: I am not aware of such a case.

GRAHAM: Is there a constitutional right for a foreign, noncitizen enemy prisoner to have access to our courts to sue regarding their condition of the confinement under our Constitution?

ALITO: Well, I'm not aware of a precedent that addresses the issue.

GRAHAM: Do you know of any case where an enemy prisoner of war brought a habeas petition in World War II objecting to be their confinement to our federal judiciary?

ALITO: There may have been a lower court case. I'm trying to remember the exact status of the individual.

GRAHAM: Let me help you. There were two cases. One of them involved six saboteurs, the in re Quirin case. Would you agree with me that that case stood for the proposition that in a time of war or declared hostilities an illegal combatant, even though they may be an American citizen, the proper forum for them to be tried in is a military tribunal and they're not entitled to a jury trial as an American citizen in a non-wartime environment?

ALITO: Well, those were a number of German saboteurs who landed by submarine in the United States. And they were taken into custody. And they were tried before a military tribunal.

And the case went up to the Supreme Court. The Supreme Court sustained their being tried before a military tribunal. At least one of them claimed to be an American citizen. And most of them, I think all but one or two, actually were executed.

GRAHAM: And our Supreme Court said that is the proper forum during a war-time environment to try people who were engaged in a legal combat activities against our country. Is that correct?

ALITO: They sustained what was done under the circumstances.

GRAHAM: That would be a precedent then, wouldn't it?

ALITO: It is a precedent. Yes.

GRAHAM: OK.

There was a case involving six Germans, soldiers, captured in Japan and transferred to Germany, and they brought a habeas petition to be released in the -- I can't remember the ...

ALITO: Eisentrager.

GRAHAM: You know it. Tell me what the court decided there.

ALITO: They were, as I recall, they were Germans who were found in China...

GRAHAM: China. You're right

ALITO: ... assisting the Japanese after termination of the war with Germany. And they were unsuccessful in their habeas petition. That was interpreted, prior to the Supreme Court's decision a couple of years ago, to mean that there was a lack of habeas jurisdiction over them because they were being held in territory that was not U.S. territory.

GRAHAM: For those who are watching who are not lawyers, generally speaking, in all of the wars that we've been involved in we don't let the people trying to kill us sue us. Right? And we're not going to let them go at an arbitrary time period if we think they're still dangerous because we don't want to go have to shoot at them again or let them shoot at us again.

Is that a good summary of the law of armed conflict?

ALITO: I don't know whether I'd put it quite that broadly, Senator.

(LAUGHTER)

The precedent that you -- the Johnson v. Eisentrager, of course, has been substantially modified, if not overruled. Ex Parte Quirin, of course, is still a precedent.

There was a lower precedent involving someone who fought with the Italian army. And I can't remember the exact name of it. And that was the case that I thought you were referring to when you first framed the question.

But those are the precedents in the area. Then, if you go back to the Civil War, there's Ex Parte Milligan and a few others.

GRAHAM: We don't have to go back that far.

(LAUGHTER)

ALITO: Well, in this area...

GRAHAM: Well...

ALITO: ... it's actually instructive to do it.

But in Hamdi the court addressed this question of how long the detention should take place. And they said -- because they were responding to the argument that this situation is not like the wars of the past which had a more or less fixed -- it was not anticipated that they would go on for a generation. And they said: We'll get to that if it develops that way.

GRAHAM: Who is better able to determine if an enemy combatant properly held has ongoing intelligence value to our country? Is it the military or a judge?

ALITO: On intelligence matters I would think that is an issue -- that is an area where the judiciary doesn't have expertise. But we do get into this issue I was discussing with Senator Feingold about the degree to which the balance between the judiciary's performing its function in cases involving individual rights and its desire not to intrude into areas where it lacks expertise, particularly in times of war and national crisis.

GRAHAM: So, having said that, if we have a decision to make as a country when to let someone go who's an enemy combatant, I guess we've got two choices.

We can have court cases or we can allow the military to make a determination if that person still presents a threat to the United States and whether or not that person has an intelligence value by further confinement.

Do you feel the courts possess the capabilities and the confidence to make those two decisions better than the military?

ALITO: The courts do not have expertise in foreign affairs or in military affairs. And they certainly should recognize that. And that is one powerful consideration in addressing legal issues that may come up in this context.

But there is the other powerful consideration that it is the responsibility of the courts to protect individual rights in cases that are properly before the court, cases where they have jurisdiction in one way or another, cases that are fit for judicial resolution.

GRAHAM: I totally understand that. But our courts have not, by tradition, gotten involved in running military jails during a time of war.

I can't think of one time where a prisoner of war housed in the United States during World War II, a German Nazi or a Japanese prisoner, was able to go and sue our own troops about their confinement.

I think there's a reason there's none of those cases. It would lead to chaos. Now, when it comes to treating detainees and how to treat them, I think the Congress has a big role to play. And I think that the courts have a big role to play. Are you familiar with the Geneva Convention?

ALITO: I have some familiarity with it. I'm...

GRAHAM: Do you believe it's been good for our country to be a signatory to that convention?

ALITO: I think it has. But that's not really my area of authority.

ALITO: That's Congress' area of authority.

GRAHAM: Well, just as an American citizen, are you proud of the fact that your country has signed up the Geneva Convention and that we have laid out a system of how we treat people who fall into our hands and how we'll engage in war?

ALITO: I think the Geneva Convention -- and I'm not an expert on the Geneva Conventions -- but I think they express some very deep values of the American people. And we've been a signatory of them for some time. And I think that...

GRAHAM: Now, let's go back to the legal application of the Geneva Convention.

If someone was captured by an American force and detained either at home or abroad, would the Geneva Convention give that detainee a private cause of action against the United States government?

ALITO: Well, that's an issue I believe in the Hamdan case, which is an actual case that's before the Supreme Court. And it goes to the question of whether a treaty is self-executing or not. Some treaties are self-executing...

GRAHAM: Has there ever been an occasion in all the wars we fought where the Geneva Convention was involved whether the courts treated the Geneva Convention as a private cause of action to bring a lawsuit against our own troops?

ALITO: I'm not familiar with such a case. But I can't say whether there might be some case or not.

GRAHAM: Now, when it comes to what authority the executive has during a time of war, we know the Supreme Court has said it's implicit from the force resolution that you can detain people captured on the battlefield. Hamdi stands for that proposition. Is that correct?

ALITO: That's what was involved in Hamdi.

GRAHAM: OK. The problem that Senator Feingold has and I have and some of the rest of us have is does that force resolution, does it have the legal effect of creating an exception to the FISA Court?

And I know that may come before you, but let's talk about generally how the law works.

You say that the president has to follow every statute on the books unless the statute allows an exception for the president. Is that a fair statement? Just being president, you can't set aside the law.

ALITO: The president has to follow the law, and that means the Constitution and the laws that are enacted consistent with the Constitution.

GRAHAM: There's a statute that we have on the books against torture. Are you familiar with that statute?

ALITO: Convention against torture, I am. Well, the statutes implementing the convention against torture.

GRAHAM: And the statute provides the death penalty for somebody who violates the conventions as a possible punishment.

ALITO: That's right.

If death results, the death penalty is available.

GRAHAM: So this idea that Senator McCain somehow banned torture is not quite right. The convention on torture and the statute that we have implementing that convention were on the books long before this year.

GRAHAM: Is that correct?

ALITO: Yes, they were.

GRAHAM: Do you believe that any president, because we're at war, could say, the statute on torture gets in the way of my ability to defend the United States; therefore I don't have to comply with it?

ALITO: The president has to comply with the Constitution and the laws of the United States that are enacted consistent with the Constitution. That is the principle.

The president is not above the Constitution and the laws. Now, there are issues about the interpretation of the laws and the interpretation of the Constitution.

GRAHAM: Are you a strict constructionist?

ALITO: I think it depends on what you mean by that phrase. And if you...

GRAHAM: Well, let's forget that. We'll never get to the end of that.

(LAUGHTER)

Have you heard the term used?

ALITO: I have heard the term used.

GRAHAM: Is it fair to say that, when it's used by politicians, people like me, that we're trying to tell the public we want a judge who looks at things very narrowly, that doesn't make a bunch of stuff up?

Is that a fair understanding of what a strict constructionist may be in the political world?

ALITO: Well, if a strict constructionist is a judge who doesn't make things up, than I'm a strict constructionist.

(LAUGHTER)

GRAHAM: There you go.

ALITO: I agree with that, Senator.

(LAUGHTER)

GRAHAM: Now, if there's a force resolution that Congress passes to allow any president to engage in military activity against someone trying to do us harm and the force resolution says, "The president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines, planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001" -- or just make it generic -- if someone argued that that declaration by Congress was a blanket exemption to the warrant requirement under FISA, would that be a product of strict constructionist legal reasoning?

ALITO: I think that a strict constructionist as you understand it would engage in a certain process in evaluating that question. And a strict constructionist, a person who interprets the law -- that's how I would put it -- a person who interprets the law would look at the language of the authorization for the use of military force and legislative history that was informative, maybe past practices. Were there prior enactments that are analogous to that? What was the understanding of those? And a host of other considerations that might go into the interpretive process.

GRAHAM: I guess what I'm saying, Judge, is I can understand why the court ruled that the president has within his authority to detain people on the battlefield under this force resolution. That makes sense. I understand why the president believes he has the ability to surveil the enemy at a time of war.

And the idea that our president or this administration took the law in their own hands and ignored precedent of other presidents or case law and just tried to make a power grab, I don't agree with.

But this is really not about you, so you don't have to listen. I'm talking to other people right now.

(LAUGHTER)

The point I'm trying to make -- the point I'm trying to make is what Justice Jackson made, is that, when it comes to issues like this, when we surveil our enemy and we've cross the our own borders and we have information about our own people, we need, in my opinion, Judge, to have the president at the strongest. And that would be when Congress, through collaboration with the president, comes up with a method of dealing with that situation.

And then it could be very dangerous in the long run if we over- interpret war resolutions. Because I've got a problem with that. And I believe that if we don't watch it and we over-interpret these resolutions, that we will have a chilling effect for the next president.

The next president who wants to use force to protect us in a justifiable manner may be less likely to get that resolution approved if we go too far.

And Judge, you're likely to rule on these issues.

GRAHAM: And my hope is, before you rule, that we all sit down between the executive and the legislative and we talk about this, because, as you said before, our nation, not only our legal system, is strongest when we work together.

Executive power: The Constitution allows the president to nominate judges. If Congress tried to change that by statute and say that we would like to pick the judges, what would happen, hypothetically?

ALITO: I have a certain amount of self-interest in the answer to that question.

GRAHAM: Yes, I thought you might, yes.

Clearly, clearly, the statute would fall under the Constitution. A veto is not reviewable by courts because that's a basically political decision.

Under the Constitution, what's the vote requirement to get confirmed to the Supreme Court?

ALITO: It's a majority.

GRAHAM: Hypothetically speaking, what if the Senate passed a statute or had a rule that said you can't get a vote to be on the Supreme Court unless you get 60 votes? How does that sit with you?

ALITO: Speaking in my personal capacity or my judicial capacity?

GRAHAM: Your judicial capacity.

ALITO: Senator, I just don't think I should answer questions like -- constitutional questions like that.

GRAHAM: What if the Senate said during impeachment that we don't want a two-thirds vote of the Senate; we want a majority vote? Would the Senate's action fall under the Constitution?

ALITO: There are certain questions that seem perfectly clear. And I guess there's no harm in answering...

GRAHAM: Is there any doubt in your mind the Constitution requires a majority vote to be on the Supreme Court or any other federal judicial office?

ALITO: You know what? I remember this phrase from law school...

GRAHAM: Is that a super-duper precedent?

(LAUGHTER)

ALITO: I think it's what we call in law school the slippery slope, and if you start answering the easy questions, you're going to be sliding down the ski run into the hard questions. And that's what I'm not too happy to do.

GRAHAM: That's what I tried to get to you do and I'm glad you didn't do it.

(LAUGHTER)

The bottom line through this exercise is: You've got a job. I've got a job. And what disturbs me a bit is that we're beginning to hold the lawyer responsible for the client.

And in my remaining time here, what damage could be done to the legal profession or judiciary if people in my profession start holding your clients' position against the advocate?

ALITO: I think it's been traditionally recognized that lawyers have an obligation to their clients. That's how our legal system works. Some lawyers have private clients. Some lawyers work for government agencies and the lawyer-client relationship there is not exactly the same. But still there is a lawyer-client relationship.

And I think our whole system is based on the idea that justice is best served...

GRAHAM: If you were an attorney general representing a state that passed a ban on partial-birth abortion, would it be fair to that attorney general if they came before this committee to hold that against them if you disagreed with them on the subject matter?

ALITO: I think that attorneys general -- I can speak to the issue of the attorney general of the United States because I know there's a statute and there's an understanding about what the attorney general of the United States will do when an act of Congress is called into question. And the obligation of the attorney general is to defend the constitutionality of the act of Congress...

(CROSSTALK)

GRAHAM: Lawyers' obligation is to defend their clients' interest. Is that an accurate statement of what a lawyer is supposed to do?

ALITO: It certainly is, yes.

GRAHAM: No matter where that client is popular or not or the position is popular or not.

GRAHAM: Is that correct?

ALITO: Consistent with ethical obligations and professional responsibility, yes, indeed.

GRAHAM: What's this process been like for you and your family? In a short period of time, could you tell us how to improve it?

ALITO: Well, it's been a combination -- at times it's been a thrill and at times it's been extremely disorienting. I've spent the last 15 years as a judge on the court of appeals. And you probably could not think of a more cloistered existence than a judge on the court of appeals.

Most of the time nobody other than the parties pays attention to what we do. When an article is written in the paper about one of our decisions, it's a federal appeals court in Philadelphia or in whatever city.

And this has been a strange process for me. I made some reference to that yesterday.

But I understand the reason for it. And I am reluctant in my current capacity as a nominee to offer any suggestions about the process. I think that you're carrying out your responsibility. I spoke about the fact that different people under the Constitution have different obligations. And you have the advice and consent function, Congress -- the Senate does. And I think it's for the Senate to decide what it should do in this area.

SPECTER: Thank you, Senator Graham.

Senator Schumer?

SCHUMER: Thank you, Senator Specter.

And I want to thank you, Judge Alito. It has been a long day.

Judge Alito, in 1985, you wrote that the Constitution -- these are your words -- does not protect a right to an abortion. You said to Senator Specter a long time ago, I think it was about 9:30 this morning, 9:45, that those words accurately reflected your view at the time.

Now let me ask you: Do they accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it?

SCHUMER: It's OK if you distance yourself from it, and it's fine if you embrace it. We just want to know your view.

ALITO: Senator, it was an accurate statement of my views at the time. That was in 1985.

And I made it from my vantage point as an attorney in the Solicitor General's Office, but it was an expression of what I thought at that time.

If the issue were to come before me as a judge, if I'm confirmed and if this issue were to come up, the first question that would have to be addressed is the question of stare decisis, which I've discussed earlier and it's a very important doctrine. And that was the starting point and the ending point of the joint opinion in Casey.

And then if I were to get beyond that, if the court were to get beyond the issue of stare decisis, then I would have to go through the whole judicial decision-making process before reaching a conclusion.

SCHUMER: But, sir, I am not asking you about stare decisis. I'm not asking you about cases.

I'm asking you about this: the United States Constitution. As far as I know, it's the same as it was in 1985 with the exception of the 27th Amendment, which has nothing to do with what we're talking about.

Regardless of case law, in 1985, you stated -- you stated it proudly, unequivocally, without exception -- that the Constitution does not protect a right to an abortion.

Do you believe that now?

ALITO: Senator...

SCHUMER: I'm not asking about case law. I'm not asking about stare decisis. I'm asking your view about this document and whether what you stated in 1985 you believe today; you changed your view; you've distanced your view?

You can give me a direct answer. It doesn't matter which way you answer, but I think it's important that you answer that question.

ALITO: Answer to the question is that I would address that issue in accordance with the judicial process as I understand it and as I have practiced it.

ALITO: That's the only way I can answer that question.

SCHUMER: Sir, I'm not asking for the process. Obviously, you'd use a judicial mindframe. You've been a judge for 15 years.

I'm asking you -- you stated what you believe the Constitution contained. You didn't say the Constitution as interpreted by this or that. You didn't say the constitution with this exception or that exception.

It was a statement you made directly. You made it proudly. You said you're particularly proud of that personal belief that you had. You still believe it.

ALITO: And, Senator, I would make up my mind on that question if I got to it, if I got past the issue of stare decisis after going through the whole process that I have described.

I would need to know the case that is before me and I would have to consider the arguments and they might be different arguments from the arguments that were available in 1985.

SCHUMER: But, sir, I'm not asking you about case law. Now, maybe you read a case and it changed your view of the Constitution.

I'm asking you -- and not about the process you've used -- I'm asking you about your view of the Constitution because, as we all know, and we're going to talk about stare decisis in a few minutes, that if somebody believes, a judge, especially a Supreme Court justice, that something is unconstitutional, even though stare decisis is on the books, governs the way you are and there's precedent on the books for decades, it's still important to know your view of what the Constitution contains.

And let me just say, a few hours ago, in this same memo -- I can't remember who asked the question -- but you backed off one of the statements you had written. You said it was inapt, which taught me something. I didn't know that there was a word that was inapt.

But you said that it was inapt to have written that the elected branches are supreme. So, you discussed your view on that issue without reference to case law because there was no reference to case law when you wrote it. There was no reference to case law when you wrote this.

Can you tell us your view just one more time, your view about the Constitution not protecting the right to an abortion, which you have talked about before? And you said you personally, proudly held that view. Can you?

ALITO: The question about the statement about the supremacy of the elected branches of government went to my understanding of the constitutional structure of our country.

And so certainly that's a subject that it is proper for me to talk about.

ALITO: But the only way you are asking me how I would decide an issue...

SCHUMER: No, I'm not. I'm asking you what you believes in the Constitution.

ALITO: Well, you're asking me my view of a question that...

SCHUMER: I'm not asking about a question. I'm asking about the Constitution, in all due respect, and something you wrote about...

ALITO: The Constitution contains the due process clause of the Fifth Amendment and the 14th Amendment. It provides protection for liberty. It provides substantive protection. And the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections.

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That's in the First Amendment.

SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you're not going to answer the question. I didn't expect really that you would, although I think it would be important that you would. I think it's part of your obligation to us that you do, particularly that you stated it once before so any idea that you're approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you're refusal I find troubling. And it's sort as if I asked a friend of mine 20 years ago -- a friend of mine 20 years ago said to me, he said, you know, I really can't stand my mother-in-law. And a few weeks ago I saw him and I said, "Do you still hate your mother-in-law?"

He said, "Well, I'm now married to her daughter for 21 years, not one year."

I said, "No, no, no. Do you still hate your mother-in-law?"

And he said, "I can't really comment."

What do you think I'd think?

ALITO: Senator, I think...

SCHUMER: Let me just move on.

You have a very nice mother-in-law. I see her right here. And she seems like a very nice person.

(LAUGHTER)

OK.

ALITO: I have not changed my opinion of my mother-in-law.

SCHUMER: Good.

(LAUGHTER)

I'm glad you haven't.

ALITO: I can answer that question.

SCHUMER: She seems nice.

Let me go now to stare decisis, because what you've said is you start out stare decisis, although I think a lot of people would argue you start out with the Constitution, upon which stare decisis is built.

SCHUMER: OK.

Now you've tried to reassure us that stare decisis means a great deal to you. You point out that prior Supreme Court precedents, like Roe, will stand because of the principle.

While you're on the 3rd Circuit, of course, you can't overrule precedents of the Supreme Court, but when you're on the Supreme Court, you have a little bit more flexibility.

I just want to ask you this. Stare decisis is not an immutable principle, right? You said that before in reference to Senator Feinstein. When Judge Roberts was here, he said it was discretionary. So it's not immutable. Is that right? You've told us it's not an inexorable command. It doesn't require you to follow the precedent.

ALITO: It is a strong principle. And in general courts follow precedence. The Supreme Court needs a special justification for overruling a prior case.

SCHUMER: But they have found them. I think you went over this. I can't recall if it was Senator Kohl or Senator Feinstein, but you went through some cases.

In recent years the court has overruled various cases in a rather short amount of time. You mentioned I think it was National League of Cities about fair labor standards, and it was overruled just nine years later by Garcia. Stanford v. Kentucky was overruled by Roper v. Simmons. Bowers v. Hardwick was overruled by Lawrence v. Texas. And of course, Brown v. Board was over ruled by Plessy.

So the bottom line, let's just -- I mean, we can go through this -- I mean Plessy was overruled by Brown. I apologize.

So the only point I'm making is that despite stare decisis, it doesn't mean a Supreme Court justice who strongly believes in stare decisis won't ever overrule a case. Is that correct? You can give me a yes or no.

ALITO: Yes.

SCHUMER: Now let's try this another way.

SCHUMER: Here's a quote: "Stare decisis provides continuity to our system. It provides predictability. And in our process of case- by-case decision-making, I think it's a very important and critical concept." Statement sounds reasonable to me. It sounds to me like it's something you said to Senator Specter and others, right?

ALITO: I agree with the statement, yes.

SCHUMER: Let me show you who said that statement. It was Justice Thomas. Justice Thomas came before us and stated that, and yet when he got on the Supreme Court he voted to overrule or expressed a desire to overrule a whole lot of cases, including some very important ones on the court.

Here are some quotes. "Casey must be overruled." "Buckley v. Valeo should be overruled." "Bachus (ph)" -- just last year -- "should be overruled."

And as you can see, it's a very large number of cases. And these aren't all of them. In fact, Justice Thomas said that a 1789 unanimous case by the Supreme Court, Calder v. Bull, which no one talked about for centuries, should be overruled.

So what do you think of Justice Thomas' theory of stare decisis and how he applies it?

ALITO: Senator, I've explained my understanding of the doctrine of stare decisis, and it is important to me. I think it's an important part of our legal system. It is...

SCHUMER: But how about what Justice Thomas, what do you think of what he's doing?

ALITO: Well, I don't think I should comment on all of those cases.

SCHUMER: OK. Let me just say this. You may not want to comment, but his fellow justice, Justice Scalia, did. Here's what Justice Scalia said about Justice Thomas and stare decisis. And remember what he said when he was sitting in the same chair you're sitting in. He pledged fealty to stare decisis.

Justice Scalia said Justice Thomas, quote, "doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, 'Let's get it right.'"

SCHUMER: Then Justice Scalia said, "I wouldn't" -- speaking of himself -- "I wouldn't do that."

And it's particularly relevant, because if you believe something is not in the Constitution, at least the way Justice Thomas talks about stare decisis, he'd let the Constitution overrule it and stare decisis would go by the wayside.

And I'm not saying Justice Thomas was disingenuous with the committee when he was here. I'm just saying that stare decisis is something of an elastic concept that different judges apply in different ways.

So let me go to another one here. I think I've covered everything I want to do with Justice Thomas.

Yes, here's another quote: "There is a need for stability and continuity in the law. There's a need for predictability in legal doctrine. And it's important that the law not be considered as shifting every time the personnel of the Supreme Court changes."

That, again, sounds reasonable to me, quite a lot like what you said.

You don't have any dispute with that statement, do you?

ALITO: No, I don't.

SCHUMER: OK, well, let's see who said that one. It was Robert Bork, when he came before this committee to be nominated.

Now, here's what Judge Bork wrote in the National Review Online just a few weeks ago. He wrote, quote, "Overturning Roe v. Wade should be the sine quon non of a respectable jurisprudence. Many justices have made the point that what controls is the Constitution itself, not what the court has said about it in the past."

And even before his hearing, by the way, he sort of cut back on what he said at the hearing, I guess. It may have been in different context.

But here's a quote that he said, a year, I think, before he came before us. He said, "I don't think that in the field of constitutional law precedent is all that important."

He said, in effect, that a justice's view of the Constitution trumps stare decisis. That's not an unrespectable view. It's probably not the majority view of justices, but it's there.

So, for example, it was his view, similar to Justice Thomas, that the Constitution does not protect a right -- that if the Constitution does not protect the right to an abortion -- as you wrote in 1985; we're not talking about how you feel today -- it would be overruled; it should be overruled despite stare decisis.

And one of the things I'm concerned about here is that, what you wrote -- and I think Senator Kohl went over it a little bit -- is what you wrote about Judge Bork in 1988.

And, by the way, this was not when you were working for someone or applying for a job. As I understand it, you were the U.S. attorney in New Jersey, well-ensconced, a very good U.S. attorney, and it was with some New Jersey news outlet. I saw the site, but I didn't know what it was.

And you said that -- about Justice Bork: "I think he was one of the most outstanding nominees of this century. He's a man of unequaled ability" -- and here's the key point -- "understanding of constitutional history," and then, "someone who has thought deeply throughout his entire life."

SCHUMER: Now, first, one of the most outstanding of the 20th century with Oliver Wendell Holmes and Benjamin Cardozo, and people you've expressed admiration for, Frankfurter and Brennan and Harlan?

I find it, you know, disconcerting that you would say that he is a great nominee of the 20th century in his understanding of constitutional law and yet he so abjectly rejects stare decisis.

ALITO: Well, I certainly was not aware of what he had said about stare decisis when I made those comments.

I've explained those comments. They were made when I was an appointee of President Reagan, and Judge Bork was President Reagan's...

SCHUMER: But you weren't -- excuse me.

You weren't working in the White House. You were a U.S. attorney prosecuting cases. There was no obligation for you to say what you said, right?

ALITO: No, but I had been in the Department of Justice at the time.

SCHUMER: I know.

But it was a voluntary interview with some New Jersey news outlet -- is that correct?

ALITO: And I was asked a question about Judge Bork and I had been in the department at the time of his nomination, and I was an appointee of President Reagan and I was a supporter of the nomination.

SCHUMER: OK.

Let's go to the next line of questioning here.

But again, the point being judges, justices overrule cases despite stare decisis, particularly when they think the Constitution dictates otherwise.

And now I want to turn to your own record in the 3rd Circuit, something you mentioned yesterday and today. And when you've been on the 3rd Circuit, of course, you had to follow Supreme Court precedent and you professed a whole lot of times your desire to do that, and I'm not disputing that here.

But it's also true that when you were on the 3rd Circuit, the more apt analogy in terms of stare decisis would be about 3rd Circuit precedents. Because if you should get on the Supreme Court, stare decisis will apply to Supreme Court decisions the way stare decisis to a 3rd Circuit judge applies to 3rd Circuit decisions. That's pretty fair, right?

ALITO: Yes, and I've tried to follow 3rd Circuit precedents.

SCHUMER: Right. OK.

Although, you have dissented more than most of your fellow judges, but we'll leave that aside.

What I want to show here is how many times when you were on the 3rd Circuit your fellow judges on the 3rd Circuit, whom I'm sure have high respect for you -- I know a lot of them are coming here in a few days and I think that's nice.

SCHUMER: I don't have any problem with that.

(LAUGHTER)

Well, there's been some criticism about it, not by me.

But I just want to show you what they have said when it comes to their view of your respect for 3rd Circuit precedent, stare decisis, as relevant as we can find it for you.

So I'm going to read a few. There are a whole bunch. But in Dia v. Ashcroft -- they're all on this chart, I guess. There are too many, so the print isn't large enough for most people to see. I wish there were fewer.

In Dia v. Ashcroft, the majority of your court said that your opinion, quote, "guts the statutory standard and ignores our precedent. In LePage's Incorporated v. 3M, your opinion was criticized as, quote, "being contrary to our precedent and that of the Supreme Court."

In RNS Services v. Secretary of Labor, you again dissented. And the majority, again, argued that, quote, "Your dissent overlooks our holding in the instant case and prior cases."

In Riley v. Taylor, the on-bank majority argued that your view ignored case after case relied by the majority and, quote, "accords little weight to those authorities."

In Texas Eastern Transmission Corp., a panel criticized your opinion because, quote, "it does not comport with our reading of the relevant case law."

In Bray v. Marriott Hotels, the majority noted that binding circuit precedent made your analysis improper in a discrimination case. And the list goes on and on.

I don't have to -- but other cases that are mentioned are United Artists, the Warrington Beauty Time, the Vuskin (ph) Systems. Here's a final one, Rappa v. Newcastle County. Judge Garth, the man I think you clerked for and is regarded as a mentor to you wrote that your majority opinion was, quote, "unprecedented in its, quote, "disregard of established principles of stare decisis."

"Nothing," Judge Garth wrote, "in the jurisprudence of the Supreme Court or in ours suggests that a three-judge panel of a court of appeals is free to substitute its own judgment for that of a four- justice plurality opinion, let alone that of the entire court."

SCHUMER: So those are just some of the cases in which your own colleagues said you didn't follow stare decisis.

Now there may have been good reason -- you're much more expert on these cases than I am. There may have been good reason for you to do it. But I think it shows something. And that is you.

If we have to project as to what kind of a Supreme Court justice you will be (inaudible) not going to be as reluctant as some to overturn precedent even by the rules of stare decisis.

And so you wonder, if you are as willing as you are to depart from precedent on the 3rd Circuit, what's going to happen if you should get on the Supreme Court.

Your response because I mentioned a whole lot of cases here.

ALITO: You did, Senator. And I think that you need to examine each of the cases to see whether what I did was justified.

Let me just take one that struck me when you read from it, and that was the United Artists case. What I said there that a Supreme Court decision that had come up, that had been handed down after the most recent 3rd Circuit decision relating to the issue, superseded what our court had said.

So I was following an aspect of stare decisis there. I was following what we call vertical stare decisis, following the Supreme Court. And I don't think there's any dispute. When the Supreme Court hands down a decision that's in conflict with one of our earlier cases, we have to follow the Supreme Court.

SCHUMER: Yes, but there's no question that in that situation, Judge Cohen said your opinion was, quote, "wrong to revisit an issue that has already been decided and failed to give respect and deference to the circuit's well-established jurisprudence employing the improper motive test in the substantive due process land use context."

It's rather complicated, but he's sure saying, in his view, you didn't follow court precedent.

ALITO: And, Senator, there was this body of 3rd Circuit precedent, and it said that it's proper for a federal court to get involved in a zoning dispute, which is traditionally a local matter, if there is simply an improper motive, whatever that might be.

And after that, the Supreme Court, in an opinion by Justice Souter, emphasized that the test under substantive due process in an area like this, an area that the other judge in the majority and I thought was like this, is whether what was done shocks the conscience.

And so you had a Supreme Court decision intervening. And in that situation, I thought was our obligation -- and I wrote the majority opinion there -- to follow what the Supreme Court had said.

SCHUMER: But my only point being here is one judge's view of what stare decisis requires and another judge's view of what stare decisis requires are not always the same. The concept has some degree of elasticity.

And when, in reference to questions by people, you say: Well, how do you feel about this case, and particularly Roe, which has been where we started off here, I believe in stare decisis, it means that you're going to take precedent into account, but it certainly doesn't necessarily mean where you'd come out.

And let me tell you where I conclude where you'd come out, just sort of summarizing this argument. First, again, greatly disturbing I think to many Americans would be that you won't distance yourself from your 1985 view that the Constitution does not protect a right to a woman's right to choose; that that view has not changed; that you have refused to say, unlike you did in another part of that 1985 memo, that you think it's wrong now -- which would lead one to think that, you know, that you probably believe in it.

Second, you've told us you respect precedent and stare decisis, but we have seen that the stated respect for stare decisis hardly determines whether a Supreme Court justice will vote to uphold precedents -- not because when they come here they're being disingenuous with us.

SCHUMER: I don't think that at all. But because the concept is somewhat elastic, because it doesn't guarantee that you will uphold precedent, and particularly doesn't guarantee it when the Constitution conflicts with stare decisis, with the precedents of the court.

And finally, to top it off, we have seen that your 3rd Circuit record can hardly provide a great deal of comfort in this area either, that many of your fellow judges criticized you for ignoring, abandoning or overruling precedent.

Taken together, these pieces are very disturbing to me. Your blanket 1985 statement, not distanced from, that the Constitution doesn't protect the right to an abortion, the fact that respect for precedent and stability doesn't prevent overruling of a past decision, and your own record of reversing or ignoring precedent on the 3rd Circuit lead to one inevitable conclusion: We can only conclude that if the question came before you it is very likely that you would vote to overrule Roe v. Wade.

Yield back my time.

ALITO: Senator, could I just respond to that question?

SCHUMER: Please. Time is yours.

ALITO: My 3rd Circuit record in looking at abortion cases provides the best indication of my belief that it is my obligation to follow the law in this area and in all other areas. If I have had an agenda to uphold any abortion regulation that came along, I would not have voted as I did in my 3rd Circuit cases.

I have testified here today about what I think about stare decisis. I do think it's a very important legal doctrine. And I've explained the factors that figure into it. It would be the first question that I would consider if an issue like this came before me.

SCHUMER: Let me just say, though, you have ruled on certain cases, many of them were on technicalities, and in all of them, as a 3rd Circuit judge, you were bound by Supreme Court precedent.

You never in the 3rd Circuit were squarely presented with the question that I asked, which is a decisive question, which is whether the Constitution protects a woman's right to choose.

You were never asked in the court. You were never asked to overturn Roe v. Wade. And even if you were in the 3rd Circuit, you couldn't, because you were bound by the precedent of the court.

I do not think your 3rd Circuit rulings are dispositive on what you would do should you become a U.S. Supreme Court justice.

Thank you, Mr. Chairman.

ALITO: If the matter were to come up before me on the Supreme Court, I would consider the issue of stare decisis. And if the case got beyond that, I would go through that entire judicial decision- making process that I described.

ALITO: That's not a formality to me, that's the way in which I think a judge or a justice has to address legal issues.

And I think that is very important. And I don't know a way to answer a question about how I would decide a constitutional question that might come up in the future, other than to say I would go through that whole process. I don't agree with the idea that the Constitution always trumps stare decisis.

SCHUMER: It doesn't always, but sometimes...

SPECTER: Let him finish his answer, Senator Schumer.

ALITO: I don't agree with the theory that the Constitution always trumps stare decisis. There would be no room for the doctrine of stare decisis in constitutional law if that were the case.

SCHUMER: But, sir, it can trump stare decisis. It doesn't always, but can. Is that correct?

ALITO: It certainly can. And I think that's a good thing, because otherwise Plessy v. Ferguson would still be on the books.

SCHUMER: Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Schumer.

Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

Judge Alito, are you familiar with the -- I guess the question that lawyers sometimes pose to demonstrate how unfair a question can be -- when did you stop beating your wife?

ALITO: I'm familiar with that question.

CORNYN: I suppose the reason why...

(LAUGHTER)

Since someone was picking on your mother-in-law, I thought I would inject your wife into this.

The point is this: It's an unfair question because it implies, regardless of what your response has been, that at one time you did, when in fact you have not.

And I just want to explore, to start with, Senator Schumer's questions about what is written in this Constitution about abortion. Does the word abortion appear anywhere in the Constitution?

ALITO: No. The word that appears in the Constitution is liberty.

CORNYN: And outside of let's say the Fourth Amendment, perhaps, does the right to privacy appear explicitly stated in the Constitution?

ALITO: There is no express reference to privacy in the Constitution. But it is protected by the Fourth Amendment and in certain circumstances by the First Amendment and in certain circumstances by the Fifth and the 14th Amendments.

CORNYN: And the reason it's protected is because the Supreme Court has so interpreted the Constitution. Isn't that correct, sir?

ALITO: That's correct. It's a question of interpretation rather than simply looking at what is in the text of the document.

CORNYN: So to ask you whether the right to free speech, which is explicitly protected under the First Amendment of the Constitution, ask you whether that's in there, and then to ask you in the same question or at least same series of questions whether the right to abortion on demand is in the Constitution, one is explicitly stated in the First Amendment. The other is the product of court interpretation.

Isn't that accurate, sir?

ALITO: Yes. That's my view of it.

CORNYN: And it is, to be more specific, it is what the courts have called penumbral rights. In other words, the old -- I can't remember whether it's Griswold or what case -- no doubt you can -- that talked about this being the emanations at the penumbra -- of the emanations from stated rights in the Constitution.

CORNYN: Can you clarify that for us so we get it correct?

ALITO: Yes.

Griswold talked about emanations and penumbras. And Griswold has later been understood by the Supreme Court as being based on the protection of liberty under the Fifth Amendment and the 14th Amendment.

CORNYN: Well, I was particularly troubled by the exchange of questions and answers, because the suggestion is that you have somehow been unresponsive.

And as I said in my opening statement, I do think that there are those who have already decided to vote against your nomination and are looking for some reason to do so. And I think one of the reasons that they may claim is that you've been nonresponsive.

But I was -- I thought it was telling that Senator Schumer said he didn't expect you to answer that question.

I would like to refer back to Senator Biden's comments where he praised you at the close of his remarks. He said: I appreciate you for being responsive. He said: I cannot remember a nominee being this forthcoming. I appreciate that you've answered nearly every question put to you. Thank you for being so responsive.

And indeed, according to one count, you've answered more than 250 questions thus far today.

So I think in all fairness the question is not a fair one to ask you whether the right to an abortion is written in this document. The fact is and the reason why you applied the doctrine of stare decisis is because you recognize the precedential effect, the authoritative effect of the Supreme Court's interpretation of this document as the law of the land, do you not, sir?

ALITO: That's correct.

CORNYN: And you mentioned Plessy v. Ferguson. I think it was Daniel Patrick Moynihan, a Democrat senator from Senator Schumer's state, who said if it weren't for the ability of the courts to go back and revisit these decisions, how would you ever correct a mistake?

And I think the fact is you've mentioned one of the instances where, thank goodness, the court has gone back and revisited a terrible decision which has been a scar on our country and on our jurisprudence, Plessy v. Ferguson.

And if the court had, in Brown v. Board of Education, had felt prohibited from revisiting that mistake, then we would still be living under that scar.

CORNYN: And I think we can all agree that that would be a terrible thing, and thank goodness we have a Supreme Court that has had the courage to go back in accordance with the principles of stare decisis and revisit terribly wrong decisions and to correct them and to bring us where we are today.

You know, it must be strange to have people listen to the questions and answers here, because on one hand you'll hear rather complimentary comments; on the other hand, even senators who are still, at least for the record, undecided -- I hate to think what it would be like if they had actually determined to vote against you already -- making rather strong critical statements.

But it means a lot to me to know that the people who know you best, the people who have worked with you on the 3rd Circuit Court of Appeals, are they complimentary. I happen to believe that we ought to look to the people that know you best as being in the best position to judge your character, your integrity, your competence, and not this caricature that happens during these confirmation proceedings by the attack dogs, the interest groups, who pay a lot of money, spend a lot of time trying to tear down that reputation for integrity and competence that you have worked to hard to build during your lifetime.

But I was struck, and we'll hear more about the judges who have served with you on the 3rd Circuit.

But I was struck by a quote that I read from your former colleague, the late Judge Leon Higginbotham.

Who is Judge Higginbotham, by the way? Or who was he?

ALITO: He was the former chief judge of the 3rd Circuit, and he was a federal judge for many years and greatly respected.

CORNYN: Well, this is what the Harvard Journal of African- American Public Policy, how it described him, in part. It said, "Higginbotham was appointed to the federal circuit bench by President Jimmy Carter in 1977. Higginbotham was also former president of the Philadelphia chapter of the NAACP."

CORNYN: And would it be fair to say that you and Judge Higginbotham, while you served together, you tend to look at the Constitution differently? In other words, could he fairly be described as a liberal?

ALITO: I think probably most people would describe him that way.

I thought we got along very well and we generally agreed. There were cases in which we disagreed, cases in which I dissented from an opinion that he wrote and I think there were cases in which he dissented from opinions that I wrote.

CORNYN: Well, I wonder if you're aware of one thing that he was quoted as having said. This is out of the Los Angeles Times, comments he made about you to Judge Timothy Lewis. Quoted in the Los Angeles Times, quote, "Sam Alito is my favorite judge to sit with on the court. He's a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn't have an agenda. He is not an ideologue."

Were you aware that Judge Higginbotham had said that about you?

ALITO: No, I wasn't. I was not.

CORNYN: Well, I'm pleased to tell you he did say it, according to the Los Angeles Times. And I think it's a high compliment that someone who would have, perhaps, such a divergent view and, perhaps, different political beliefs than you would say those sorts of things about you and your record on the 3rd Circuit Court of Appeals.

Now, I have some charts, too, like Senator Schumer. I like my charts better than his, but we'll let others be the judge.

But I want to ask you a little bit about Justice Sandra Day O'Connor. You had some very high compliments about her yesterday.

CORNYN: And that's high praise. It really is.

And I would like to submit for my colleagues' consideration that if Sandra Day O'Connor was in the mainstream, then Sam Alito is, too. And this is why.

For example, Justice O'Connor and Judge Sam Alito both set limits on Congress' commerce power.

Sandra Day O'Connor and Sam Alito both struck down affirmative action policies that had strict numerical quotas.

And both -- this ought to be a shocker to some based on what we've heard here today -- is that both Justice Sandra Day O'Connor and Judge Sam Alito have criticized Roe v. Wade.

In fact -- this is pretty astonishing to me -- according to the Harvard Law Review, over the last decade, Justice O'Connor agreed more often with Chief Justice Rehnquist, 80 percent of the time, than with any other justice.

And let's go through these individually.

First of all, you know, we talk about whether it can be a federal crime to possess a machine gun that doesn't implicate trafficking or some aspect of interstate commerce. But, you know, all we have to do is go back to a little bit of the history we all learn in high school to remember the Articles of Confederation and the fact that the states were all powerful, that the national government was crippled because it really had no power and it was subject to the unanimous vote of the states before it could do things that were very important.

And so then in Philadelphia, the delegates there wrote -- and ultimately it was ratified -- a federal Constitution. But you already alluded to this earlier.

CORNYN: This Constitution takes into account that not only will the national government have certain powers, but there also be some powers still reserved to the states.

In fact, it is a fact, is it not, sir, that when we talk about federalism, really what we're talking about is the fact that our federal government, our national government is one of enumerated powers that are set out in the Constitution, and all powers that are not enumerated or necessary and proper to the execution of those enumerated powers as a general rule are reserved to the states?

ALITO: Yes.

That's the structure of the Constitution. The federal government has enumerated powers. Some of them are broad. But those are the powers the federal government has. And the structure is that everything else was reserved for the states.

CORNYN: And so when someone suggests that you're taking a crabbed or cramped or unorthodox view toward congressional power because you say that it's not clear from the statute or the crime with which an individual is charged that interstate commerce is implicated, aren't you enforcing that original understanding of what powers were expressly or otherwise delegated to the federal government and what powers were reserved to the state?

ALITO: Well, that's what Lopez, as I understand it, tried to do. It said that although the commerce power is broad, it is not all encompassing. It involves the regulation of interstate and foreign commerce. And this statute that we have in Lopez goes beyond that.

And my case, the Rybar case, seemed to me to be as close to the situation in Lopez as any case that I was aware of.

CORNYN: Well, I know my constituents back in Texas, and I suspect people all across the country would be glad to know that you don't believe that all wisdom and all power is centered in Washington, D.C., but that under our federal system the state and federal governments are partners and that enforcing this structure that is a product of our history and a product of our Constitution is an important thing for judges to do.

CORNYN: But it's interesting, because if Sandra Day O'Connor was in the mainstream on the commerce clause, the interpretation of the commerce clause, then so is Judge Sam Alito.

As a matter of fact, the Lopez case that -- I believe in Rybar you said the question before the court is whether Lopez is a constitutional freak, or words to that effect.

Because, as you pointed out, it was a little bit of a shock to everyone's system to see the Supreme Court was actually serious about recognizing the authority of the states and to recognize that there are limits to congressional power. But Lopez re-established, or perhaps restated, that understanding.

Justice O'Connor joined the majority in the Lopez decision, did she not, sir?

ALITO: Yes, she did.

CORNYN: And so she shared, at least to that extent, your conviction that there is some limit to congressional power and that there was some point beyond which Congress' authority could not reach unless it was made clear that it was pursuant to one of the powers enumerated under the Constitution. Did I say that roughly correct?

ALITO: I agree with it. She said that Congress' power under the commerce clause is not all-encompassing.

And my job as a Court of Appeals judge is not to say that a decision of the Supreme Court should be limited to its facts -- in other words, not applied as a precedent in any other comparable situation that comes along -- my job is to take those precedents seriously, and that's what I tried to do.

CORNYN: So when Justice O'Connor held in Lopez that Congress cannot prohibit the possession of handguns near schools because mere possession is not commerce, you were doing your very best to stick to that precedent established by the United States Supreme Court when you wrote your opinion in Rybar, is that correct?

ALITO: That's correct.

In Lopez, the Supreme Court said that possession of a firearm -- mere possession -- is not a commercial activity and the interstate commerce -- the commerce clause authorizes the regulation of interstate commerce and the activity involved in Rybar was the possession of a firearm.

ALITO: So it followed that if it was a noncommercial activity in Lopez, it must be a noncommercial activity in Rybar. That's how I saw it.

CORNYN: And you didn't say the state couldn't criminalize possession of a machine gun, did you?

ALITO: The state could. And I think the great majority certainly have legislation of that nature.

CORNYN: And you pointed out here that if the Congress had been a little more careful in showing the basis upon which mere possession could affect interstate commerce, that that would be a different case and perhaps the outcome might have been different in Rybar?

ALITO: Yes, that was the strong point that I made in the dissent, that if Congress had made findings, it would have been a very different case for me.

CORNYN: The interesting thing to me about Rybar, as well, you have been accused of always ruling for the big guy or the government, but Rybar, you decided for the person accused of illegally possessing the machine gun.

ALITO: Well, that's correct.

CORNYN: You didn't rule for the government?

ALITO: No, I did not. I thought the government had not come forward with evidence to support the position that they were arguing.

CORNYN: Well, you've also been -- there's another question about affirmative action cases. We've alluded a little bit to that. And Justice Sandra Day O'Connor, the model Supreme Court justice who is clearly in the mainstream, you and Justice O'Connor both agreed to strike down affirmative action policies which set numerical quotas which resulted in reverse discrimination. She did in Wygant v. Jackson Board of Education in 1986. You did in Taxman v. Board of Education in 1996.

Would you agree with that, sir?

ALITO: I would. Taxman was a case that our court considered en banc. It means all the judges were sitting. And I sit on a very moderate court that is certainly not unreceptive to the concept of affirmative action in general.

ALITO: But the vote in that case was 8-4. It wasn't a close vote. And I joined the opinion that was written by my late colleague, Judge Mansmann, holding that that particular affirmative action plan was in violation of Title VII.

CORNYN: Let's talk again about Roe v. Wade.

Now, this is going to be a shocker for some people based upon what has gone on before, because it's been suggested that but for Sandra Day O'Connor, Roe v. Wade may be overruled, that this is really what lies in the balance here during your confirmation proceeding.

But the fact is that Justice Sandra Day O'Connor, the model Supreme Court justice, wrote in the City of Akron v. Akron Center for Reproductive Health, the trimester three-stage approach adopted by the court in Roe cannot be supported as a legitimate or useful framework. "Roe," she said, "is clearly on a collision course with itself."

And you, in the memorandum for which you've been disparaged many times when you were in the Solicitor General's Office, you recommended: Don't mount a frontal attack on Roe v. Wade but instead use the opportunity to nudge the court toward the principles in Justice O'Connor's Akron dissent.

So when you had an opportunity to urge the reversal of Roe v. Wade, even as a lawyer for the administration, you urged a more cautious approach and one consistent with Justice O'Connor's opinion at the time. Isn't that correct, sir?

ALITO: Yes. Justice O'Connor's opinion in Akron, which was the last previous big Supreme Court decision at that time, was one of the things that influenced me in the memo that I wrote in Thornburg. She analyzed Roe and I was quite persuaded by the points that she made in the Akron decision.

And the general approach -- the arguments that I was recommending that the government make in the Thornburg case were along the lines of the undue burden standard, I think, that she later adopted. I was arguing that the particular provisions should be challenged on their own terms.

One of provisions was an informed consent provision that was virtually identical to the informed consent provision that later came up in Casey -- and in Casey it was upheld.

CORNYN: Well, let's talk about Casey. That was a 1992 decision by the United States Supreme Court -- is that correct, sir?

ALITO: Yes.

CORNYN: And essentially what happened in that, Justice Kennedy, Justice Souter and Justice O'Connor -- the model Supreme Court justice -- essentially scuttled the essential argument in favor of the right to abortion based on this trimester approach which Justice O'Connor criticized and which has also been criticized by people like Justice Ginsburg, former counsel to the American Civil Liberties Union who now serves on the court, Lawrence Tribe I believe, a well-known liberal legal scholar at Harvard.

The fact is, Roe v. Wade, the writing itself, the justification for the decision has been widely criticized by legal scholars all across the spectrum, has it not, sir?

ALITO: It certainly had been at the time of the 1985 memo. And although I wasn't recommending that the government get into that issue, I mentioned in the memo some of the authors who had criticized Roe's reasoning.

CORNYN: Well, and in 1992, the only thing that really survived in Roe v. Wade, which was written 33 years ago, was the essential holding -- I guess you could call it that. And there's been some quotes about the importance of reliance interests in terms of giving it the benefits of a stare decisis or precedent.

But essentially the whole legal scheme or basis upon which abortion was protected was changed to an undue burden standard, isn't that right, sir?

ALITO: In Casey, the Supreme Court moved away from the trimester approach and they adopted the undue burden standard, which had been set out in some earlier opinions by Justice O'Connor. And the joint opinion in Casey made it clear that that was now the governing standard under Supreme Court law.

CORNYN: But the plurality opinion -- Justice O'Connor, Justice Kennedy, Justice Souter -- did not say you can have abortion without limitation. It did recognize the right of the states to pass laws which regulate abortion as long as it did not create an undue burden on a woman's right to have an abortion according to that decision.

CORNYN: Isn't that roughly what...

ALITO: Yes, that's what they held.

CORNYN: Well, I guess my point is that, if, on at least three counts on the basis of the Congress's commerce power and limitations on congressional authority in the affirmative action area and in terms of criticizing the basis upon which Roe v. Wade was decided 33 years ago, you and Justice O'Connor bear a lot of similarities.

And I would just ask that if Justice O'Connor is a model Supreme Court and therefore, by definition, is not outside the mainstream, then it strikes me that Sam Alito is not outside the mainstream either.

Let me ask you now -- we can leave this sitting up here for a minute -- but I have a few more minutes left. Another thing you've been criticized for is your unlimited view of presidential power -- is the way it's been phrased.

The suggestion is, somehow, you're always going to defer to the president and the executive branch when the legislative branch and the executive branch vie for authority -- whether it's in the intelligence-gathering area, the National Security Agency and this electronic eavesdropping, really an early warning system to try to identify terrorists so we can protect ourselves against another 9/11, or other acts of presidential power.

Now, you and, I think, Senator Graham talked a little bit about the Hamdi decision where the United States Supreme Court said that the use-of-force authorization that was issued by Congress after the 9/11 attack, authorizing the president to use necessary force to defeat the Taliban and Al Qaida, the supposed perpetrators of the 9/11 attacks -- the question came up whether that included an authorization by Congress to detain terrorists without charging them with a crime.

CORNYN: And my understanding is, in that case, that the Supreme Court, it was fractured, but the plurality opinion that Justice O'Connor joined said that that authorization of use of force was a congressional act which trumped the statutory limitation that Congress had previously passed about detaining American citizens without charging them with a crime.

Did I get that roughly correct?

ALITO: Yes. That's exactly correct. 18 USC 4001, which is called the anti-detention statute, says that nobody may be detained without authorization. And in Hamdi, Justice O'Connor's opinion concluded that the authorization for the use of military force constituted statutory authorization to detain a person who had been taken prisoner as an unlawful combatant in Afghanistan.

CORNYN: Well, I appreciate your pointing out that one of the other important statements in Hamdi was that people who are detained have certain due process rights and that the president cannot exercise his powers as commander in chief without judicial review or without anyone else looking at it, including a court or a military tribunal under appropriate circumstances.

But the fact is Justice O'Connor took a view of presidential power there that some might consider to be rather broad, the power to detain an American citizen who's a suspected terrorist without actually charging them with a crime for the reasons that Senator Graham stated; that if that person who was actually captured in Afghanistan and brought to Guantanamo Bay, if they were released, then they likely would return to the battlefield and plot and plan and execute lethal attacks on American citizens.

Interestingly, people like to characterize judges as conservative, liberal.

CORNYN: One interesting thing to me about that is Justice Scalia, who you have been likened to, actually dissented and held that it was unconstitutional for the president to detain these individuals without charging them with some crime, like treason or something else. Isn't that correct, sir?

ALITO: Yes, that's correct. This was a case where Justice O'Connor's view of the scope of executive power was broader, considerably broader, than Justice Scalia's.

Justice Scalia's position was that, unless habeas corpus is suspended -- and there are only limited circumstances in which that can take place -- then there would have to be a criminal trial.

CORNYN: But Judge Scalito might -- Alito, excuse me...

(LAUGHTER)

After talking about Judge Scalia -- you know what I was thinking, in the back of my mind, a nickname that you've acquired sometimes. And I apologize.

But the fact is that people try to characterize judges as being somewhere on the political spectrum, or making results-oriented decisions based on some ideology. But the fact is -- and I'll just ask you if you agree with this -- whether good judges who try to apply the law to cases and facts that come before them on an individual basis without regard to who wins and who loses, their decisions could be characterized as liberal, conservative and anywhere in between. Has that been your experience?

ALITO: I think that's correct, Senator.

I think that all of these labels, When you're trying to describe how judges behave, how they do their work, have their limitations and different people use them in different ways.

CORNYN: Thank you very much.

SPECTER: Well, thank you very much, Senator Cornyn, for that round of questions.

When Senator Cornyn misstates even one word with his competency, you know it's getting late.

(LAUGHTER)

And thank you, Judge Alito, for your -- we can all agree there may be some areas of controversy among the 18 of us, but I think that we can all agree about your stamina and your poise and your good humor, and even some subtle humor.

(LAUGHTER)

Your family has shown the same kind of stamina. The crowd has pretty well emptied out, but the Alitos are all still here. And they have provided not only support but occasion for a comment or two.

I noticed a big smile on your wife's face when you were asked if you stopped beating your wife.

(LAUGHTER)

ALITO: I wasn't asked whether she had stopped beating me.

(LAUGHTER)

SPECTER: Now, that's some of the subtle humor that your profile has talked about. We'd like to see a little more of it, Judge.

(LAUGHTER)

Perhaps if we went 11 hours instead of 10 hours, we'd get to that.

LEAHY: Oh, please don't.

(LAUGHTER)

I'll certify that he's very, very funny. Just don't do the other two hours.

(LAUGHTER)

SPECTER: Well, that raises the question as to what else you'll certify to, Senator Leahy.

(LAUGHTER)

LEAHY: That's enough for today.

SPECTER: I want to make one comment, which I have been pondering as to whether or not to make it, that there's a story, which is inapplicable to you, Judge Alito, so I think I can make it.

And the question is always raised: Who is behind a successful man? And the answer is a surprised mother-in-law.

(LAUGHTER)

But you have negated that infrequently told story.

So I want to thank you for your testimony today, and I want to thank my colleagues for what we are proceeding to do here, in accordance with our commitment, is to have a full, fair and dignified hearing.

And I think we're on the way.

And these proceedings are being very broadly covered. Can't pick up the front page of any newspaper in America without seeing your smiling face, Judge.

And in an era where the media is filled with criticism about the Congress, I think it's a good day for the United States Congress to have these proceedings, because people have been watching them and they see long hours and they see seriousness and they see important issues and they see the kind of dignity which we have had here today.

And I thank my colleagues and I thank you, Judge Alito. And we will resume this hearing tomorrow morning at 9:30.

To go back to Part II, click here.

Courtesy FDCH e-Media

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