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

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Wednesday, January 11, 2006; 12:46 PM

JANUARY 11, 2005

SPEAKERS:

U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN

U.S. SENATOR ORRIN G. HATCH (R-UT)

U.S. SENATOR CHARLES E. GRASSLEY (R-IA)

U.S. SENATOR JON KYL (R-AZ)

U.S. SENATOR MIKE DEWINE (R-OH)

U.S. SENATOR JEFF SESSIONS (R-AL)

U.S. SENATOR LINDSEY O. GRAHAM (R-SC)

U.S. SENATOR JOHN CORNYN (R-TX)

U.S. SENATOR SAM BROWNBACK (R-KS)

U.S. SENATOR TOM COBURN (R-OK)

U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER

U.S. SENATOR EDWARD M. KENNEDY (D-MA)

U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)

U.S. SENATOR HERBERT KOHL (D-WI)

U.S. SENATOR DIANNE FEINSTEIN (D-CA)

U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)

U.S. SENATOR CHARLES E. SCHUMER (D-NY)

U.S. SENATOR RICHARD J. DURBIN (D-IL)

WITNESSES:

JUDGE SAMUEL A. ALITO

NOMINATED TO BE AN ASSOCIATE JUSTICE

OF THE U.S. SUPREME COURT

[*]

SPECTER: The Judiciary Committee will now proceed with the confirmation hearing for Judge Alito for the Supreme Court of the United States.

Welcome back, Judge Alito.

We have three members who have not had their first round of questioning, 30 minutes. We will proceed there. And then we will have a second round of questioning for 20 minutes each.

I expect we'll need to work a long day today. It's my hope that we might finish the questioning of Judge Alito. That might be overly optimistic. We will see how things go.

Senator Durbin, you're recognized for 30 minutes.

DURBIN: Thank you very much, Mr. Chairman.

LEAHY: Before we start the clock on Senator Durbin, if I might -- some questions.

One, I admire the stamina of both the nominee and his family. But a number of us have been troubled by what we see as inconsistencies in some of the answers, and we're going to want to go into those in some depth: on the issue of one person, one vote; Vanguard recusal; unitary theory of government; CAP; and so on.

I want to clear up in my own mind and the mind of many over here what we see as inconsistencies. I know many have announced up here exactly how they're going to vote before they even asked questions. I'm one of the one I make up my mind after asking the questions, so there will be a number more.

SPECTER: Well, thank you, Senator Leahy.

SPECTER: I appreciate the comment.

There are many issues. Judge Alito has responded for seven and a half hours so far, and we're going to have another hour and a half on opening statements and then with each senator having 20 minutes on a second round there are six more hours.

So we'll see if he has covered the waterfront. And this will be a full and fair hearing. We will give every opportunity to ask the questions.

LEAHY: Mr. Chairman, with you as chairman, I know it will be a full and fair hearing. And that's one thing that every single Democrat on this side is aware of.

SPECTER: Well, I think that's very important for the nominee, for the committee and for the country. And we will do that.

The adjunct to full, fair is dignified, and I think so far we're on track.

OK, Senator Durbin, keep us on track.

Senator Durbin's recognized for -- we'll restart the clock at 30 minutes.

DURBIN: Thank you, very much, Mr. Chairman.

Judge Alito, thank you for coming for the second day and not quite the end of the first round. I thank your family for their patience, listening to all of our questions. And I hope at the end of the day, we'll feel that we've really added something to the process of choosing a person to serve in a lifetime appointment to the highest court in our land.

I listened to you carefully yesterday address an issue which is very important to me, the Griswold case, because I think that it's a starting point for me when it comes to appointments to the Supreme Court.

DURBIN: If I had any doubt in my mind that a Supreme Court nominee recognized the basic right of privacy of American citizens, as articulated in Griswold, I couldn't support the nominee.

And I listened as you explained that you supported that right of privacy and that you found the Griswold decision grounded in the Fifth Amendment as well as the 11th Amendment. I'd ask you, at this point, you obviously support Brown v. Board of Education -- do you, and the finding of the court?

ALITO: Certainly, Senator.

DURBIN: And do you believe that the Constitution protects the right of children in America to be educated in schools that are not segregated?

ALITO: Absolutely, Senator. That was one of the greatest, if not the single greatest thing, that the Supreme Court of the United States has ever done.

DURBIN: And as you read that Supreme Court decision, that historic decision, they find the basis for that decision the equal protection clause of our Constitution.

ALITO: Yes, they did. That was I think -- of course, we fought a Civil War to get the 14th Amendment and to adopt the constitutional principle of equality for people of all races.

DURBIN: The reason I asked you about those two cases is that neither of those cases referred to explicit language in the Constitution. Those cases were based on concepts of equality and liberty within our Constitution.

And the Griswold case took that concept of liberty and said it means privacy, though the word is not in our Constitution. And the Brown v. Board of Education took the concept of equality, equal protection, and said that means public education will not be segregated.

I raise that because I listened carefully as Senator Schumer asked you yesterday about Roe v. Wade.

DURBIN: And I couldn't understand your conclusion.

You conceded the fact that we have free speech because it's explicit in our Constitution, protected constitutional right. And yet, when Senator Schumer asked you repeatedly, "Do you find that Roe v. Wade established and recognized a constitutional protection for a woman to make this most private decision?," you wouldn't answer. You wouldn't give a direct answer.

On two Supreme Court cases, Griswold and Brown now, you have said, just right as we started this hearing, that you believe there is a constitutional basis for this protection and for this right. And yet, when it came to Roe v. Wade, you would not.

Most of us are troubled by this 1985 memo. You said yesterday, you would have an open mind when it came to this issue.

I'm sorry to report that your memo seeking a job in the Reagan administration does not evidence an open mind. It evidences a mind that sadly is closed in some areas.

Yesterday, when you were asked about one man, one vote, you clarified it. You said those were my views then, they're not my views now.

When Senator Kohl asked you about the power and authority of elected branches as opposed to others, no; you said I want to clarify that's not my view now.

And yet, when we have tried to press you on this critical statement that you made in that application, a statement which was made by you that said the Constitution does not protect a right to an abortion, you've been unwilling to distance yourself and to say that you disagree with that.

DURBIN: I think this is critically important, because as far as I am concerned, Judge Alito, we have to rely on the Supreme Court to protect our rights and freedom, especially our right to privacy. And for you to say that you're for Griswold, you accept the constitutional basis for Griswold, but you can't bring yourself to say there's a constitutional basis for the right of a woman's privacy when she is deciding -- making a tragic, painful decision about continuing a pregnancy that may risk her health or her life, I'm troubled by that.

Why can you say unequivocally that you find constitutional support for Griswold, unequivocally you find constitutional support for Brown, but cannot bring yourself to say that you find constitutional support for a woman's right to choose?

ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.

And the principle that was finally recognized in Brown v. Board of Education, after nearly a century of misapplication of the 14th Amendment, is that denying people of a particular race the opportunity to attend schools or, for that matter, to make use of other public facilities that are open to people of a different race denies them equality. They're not treated the same way -- an African-American is not treated the same way as a black (sic) person when they're treated that way, so they're denied equality.

And that is based squarely on the language of the equal protection clause and the principle, the heart of the principle that was -- the magnificent principle that emerged from this great struggle that is embodied in the equal protection clause.

Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.

ALITO: But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process -- shall be denied liberty without due process of law.

And that's my understanding of it. And the issue that was involved in Griswold, the possession of contraceptives by married people, is not an issue that is likely to come before the courts again.

It's not likely to come before the 3rd Circuit; it's not likely to come before the Supreme Court. So, I feel an ability to comment -- a greater ability to comment on that than I do on an issue that is involved in litigation.

What I have said about Roe is that if it were -- if the issue were to come before me, if I'm confirmed and I'm on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important.

The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General's office. But that was 20 years ago and a great deal has happened in the case law since then.

Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.

And then if I got beyond that, I would approach the question. And of course, in Casey, that was that was the beginning and the ending point of the analysis in the joint opinion.

If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.

DURBIN: Well, this is what troubles me: that you do not see Roe as a natural extension of Griswold; that you do not see the privacy rights of Griswold extended by the decision in Roe; that you decided to create categories of cases that have been decided by the court that you will concede have constitutional protection, but you have left in question the future of Roe v. Wade.

DURBIN: Yesterday, Senator Specter asked you, as he asked John Roberts before you, a series of questions about whether or not you accept the concept that this is somehow a precedent, that we can rely on; that is embedded in our experience; that if it were changed, it would call into question the legitimacy of the court.

And time and time again, he brought you to the edge, hoping that you would agree. And rarely, if ever, did you acknowledge that you would agree.

You made a most general statement that you believed reliance was part of stare decisis.

But let me just ask you this: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.

And it is my -- and the Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes -- in Casey -- based on stare decisis.

And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.

First of all, the more often a decision is reaffirmed, the more people tend to rely on it. Secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.

ALITO: And when they examine a question and they reach a conclusion, I think that's entitled to considerable respect.

And, of course, the more times that happens, the more respect the decision is entitled to. And that's my view of that.

So it's a very important precedent...

DURBIN: Is it the settled law of the land?

ALITO: If "settled" means that it can't be reexamined, then that's one thing. If "settled" means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: I have explained, Senator, as best I can how I see it.

It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed.

But it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I've sat on three of them on the Court of Appeals for the 3rd Circuit. I'm sure there are others in other courts of appeals or working their way toward the courts of appeals right now.

So it's an issue that is involved in a considerable amount of litigation that is going on.

DURBIN: I would say, Judge Alito, that is a painful issue for most of us. It is a difficult issue for most of us. The act of abortion itself is many times a hard decision, a sad decision, a tragic decision.

I believe that, for 30 years, we have tried to strike a balance in this country to say it is a legal procedure but it should be discouraged, it should be legal but rare, and try to find ways to reduce the incidence of abortion.

But as I listen to the way that you've answered this question this morning and yesterday, and the fact that you have refused to refute that statement in the 1985 job application, I'm concerned.

DURBIN: I'm concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion, that would make it illegal in this country, would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives and the doctors who help them.

That is very troubling, particularly -- and because you have stated that you are committed to this right of privacy.

If I could move to another issue that came up yesterday, I didn't understand your answer to one question, and I want to clarify it: this so-called Concerned Alumni of Princeton. You noted in your application for a job with the Department of Justice you belonged to two organizations: the Federalist Society and the Concerned Alumni of Princeton.

I won't get into the Federalist Society because every time I say those words, they go into a rage that I'm somehow guilty of McCarthy- like tactics, asking, "Who are these people in the Federalist Society?" I won't touch it.

Let me just go to the Concerned Alumni of Princeton. I didn't understand your answer.

Your answer said something about ROTC being discontinued at Princeton University. I know you were involved in ROTC. I'm told that by the time you filled out this application ROTC had been restored.

I don't believe you were suggesting that bringing more women and minorities to Princeton would somehow jeopardize the future of ROTC. I don't know that that's the case. But there is a woman named Diane Weeks who was a colleague of yours in the New Jersey U.S. Attorney's Office. And she said that she was troubled by your membership in this group.

She said you had a first-rate legal mind, but here's what she went on to say: "When I saw Concerned Alumni of Princeton on that 1985 job application, I was flabbergasted," she said.

DURBIN: "I was totally stunned. I couldn't believe it. CAP made it clear to women like me we were not wanted on campus. And he is touting his membership in this group in 1985, 13 years after he graduated? He's not a young man at this point," she said. "And I don't buy for a second that he was doing it just to get a job.

"Membership in CAP gives a good sense of what someone's personal beliefs are. I'm very troubled by this and if I were in the Senate, I would want some answers. I don't think explaining discontinuing ROTC at Princeton is an answer."

What is your answer? Why did you include this controversial organization as one of your qualifications for being part of the Reagan administration?

As you said, with your background, with your immigrant background and the fact that Princeton had just started allowing people of your background as students, how could you identify with a group that would discriminate against women and minorities?

ALITO: Well, Diane Weeks was an assistant U.S. attorney in the U.S. Attorney's Office in New Jersey and somebody that I hired, and one of many women whom I hired when I was U.S. attorney. And I think that illustrates my attitude toward equality for women.

I've said what I can say about what I can recall about this group, Senator, which is virtually nothing.

I put it down on the '85 form as a group in which I was a member. I didn't say I was anything more than a member. And since I put it down, I'm sure that I was a member at the time.

But I'm also sure -- and I have wracked my memory on this, that if I had participated in the group in any active way, if I had attended meetings or done anything else substantial in connection with this group, I would remember it.

And if I had repeated -- if I had renewed my membership, for example, over a period of years, I'm sure I would remember that.

ALITO: So that's the best I can reconstruct as to what happened with this group.

I mentioned in wracking my memory about this, I said, "What would it have been, what could it have been about the administration of Princeton that would have caused me to sign up to be a member of this group around the time of this application?" And I don't have a specific recollection, but I do know that the issue of ROTC has bothered me for a long period of time. The expulsion during the time of the units, at the time when I was a student there, struck me as a very bad thing for Princeton to do.

DURBIN: Did women and minorities have anything to do with that?

ALITO: No. And I did not join this group, I'm quite confident, because of any attitude toward women or minorities.

What has bothered me about -- what bothered me about the Princeton administration over a period of time was the treatment of ROTC. And after the unit was brought back, I know there's been a continuing controversy over a period of years about whether it would be kept on campus, whether in any way this was demeaning to the university to have an ROTC unit on campus, whether students who were enrolled in ROTC could receive credit for the courses, whether the ROTC instructors could be considered in any way a part of the faculty.

All of this bothered me, and it is my recollection that it continued over a period of time.

DURBIN: Let me ask you, if I might, to reflect on a couple other things. You're a Bruce Springsteen fan?

ALITO: I am to some degree, yes.

DURBIN: I guess most people in New Jersey would be. They should be.

ALITO: There was a movement some time ago -- we don't have an official state song and there was a movement to make "Born to Run" our official state song. But it didn't quite make it.

DURBIN: We'll stick with Lincoln in Illinois, but I can understand your commitment to Bruce Springsteen.

They once asked him: How do you come up with the songs that you write and the characters that are in them? And he said, I have a familiarity with the crushing hand of fate. It's a great line.

I want to ask you about the crushing happened of fate in several of your decisions. Riley v. Taylor: It was the murder conviction of an African-American defendant.

And the question was raised as to whether he had a fair trial. The people who were arguing in his defense said: When we take a look at the various people who were involved in these jury pools in the murder cases here, we find that the local prosecutors had eliminated all the African-Americans in four murder trials that had taken place during the year that led up to his trial.

And they raised the question, in his case, whether there had been a conscious effort to eliminate African-American jurors in this case involving an African-American defendant.

And you dismissed the statistical evidence of these all-white juries. And you made a statement that said: The significance of an all-white jury was as relevant as the fact that, quote, "five of the past six presidents of the United States have been left-handed," end of quote.

That's a troubling analogy. And I'm not the only one troubled. Your colleagues in the 3rd Circuit were troubled, as well.

Here's what they said, "The dissent" -- your dissent -- "has overlooked the obvious fact there's no provision in the Constitution that protects persons from discrimination based on whether they're right-handed or left-handed."

DURBIN: "To suggest any comparability to striking a juror based on their race is to minimize the history of discrimination against prospective black jurors and black defendants."

Why did you use that analogy that apparently is so inappropriate?

ALITO: Well, the analogy went to the issue of statistics and the use and misuse of statistics and the fact that statistics can be quite misleading. Statistics are very powerful, but statistics can also be very misleading. And that's what that was referring to. There's a whole -- I mean, statistics is a branch of mathematics, and there are ways to analyze statistics so that you draw sound conclusions from them and avoid erroneous conclusions from them.

Sometimes when you see a pattern it's the result of a cause, and sometimes when you see something that looks like it might be a pattern it's the result of chance.

Riley was a very, very difficult case. And I can tell you I struggled over that case because the issue of racial discrimination in the criminal justice system is an issue of enormous importance.

Obviously, it's very important for the defendant. It's important for the society so that everybody knows that everyone in this country is treated equally regardless of race. And it's important for law enforcement, because I know, from years as a prosecutor, that nothing is a greater poison for law enforcement than even the slightest hint of unfairness.

The issue of racial discrimination in the jury had to be viewed by our court and by me under the habeas corpus statute that Congress passed. And that gave us an important role to play, but a very limited role.

The Pennsylvania -- and what the habeas corpus statute says is that if the state courts have decided a question on the merits and they've applied the correct legal standard, the correct constitutional standard, we can't authorize granting of a writ of habeas corpus unless they were unreasonable.

It's not enough for us to say we don't agree with it. We have to say: You were unreasonable.

Now I think seven members of the Pennsylvania judiciary -- well, I think there were more.

ALITO: There was the judge who heard the state habeas case and the Pennsylvania Supreme Court. And the Pennsylvania Supreme Court, as I recall, was unanimous on the issue that there hadn't been racial discrimination in the selection of the jury in the case.

Then the case came up to us, and the issue was whether the state courts were unreasonable in finding that the particular peremptory challenges at issue in this case were not based on race. And it was a tough question, but I didn't see how we could overturn what they had done under the habeas standard.

DURBIN: I'd like to say, Judge, in many of these tough questions, as I read through cases, you end up ruling in favor of established institutions and against individuals.

Let me tell you another one: Pirolli v. World Flavors. Remember this case?

A mentally retarded individual, Kenneth Pirolli, physically harassed at his workplace; subjected to a hostile, abusive work environment; sexually assaulted by his co-workers. And according to his deposition testimony, he said they attempted to rape him.

I could read to you what's in that record here, but it is so graphic and it tells in such detail the sexual assault that he was subjected to that I'm not going to read it into the record, but I bet you remember it.

And when it came to this case as to whether or not he should have a trial, as to whether he was entitled to bring his case before a jury, you said no. "Stand by the summary judgment. Don't take this to a jury." You dissented from the majority position here.

And the reason you dissented was, I think, significant.

DURBIN: It wasn't about Kenneth Pirolli or the merits of his case; it was about the conduct and efforts of his lawyer.

You noted the fact that his lawyer had not adequately provided citations in his brief to places in the record describing the harassment. So you held Kenneth Pirolli responsible for the fact that his lawyer didn't do a good job and denied him -- at least in your view -- denied him his day in court.

How do you explain that crushing hand of fate on this man who was a victim of sexual harassment?

ALITO: Well, Senator, the district court thought that the defendant in that case was entitled to summary judgment. And so I think that says something about the facts of the case and whether it was a particularly strong case.

There's a very important principle involved in the appellate practice, and I think it goes with the idea of judicial self- restraint. It is that certain things are to be decided at certain levels in the court system.

And that requires that parties raise issues in the trial court. And that if they do not raise the issue in the trial court, then, absent some extraordinary circumstances, they shouldn't be able to raise the issue on appeal. And that was the principle there.

Now, this was not a criminal case. In a criminal case, there's a constitutional right to counsel and so a person can claim ineffective assistance of counsel. And we treat that issue differently in criminal cases than we do in civil cases.

DURBIN; I would just say that you're arguing on the merits of the district court decision. Your statement in dissent criticized his lawyer for the brief that they presented to your court.

DURBIN: That seems to me to be an unfair treatment of a man who I think deserved a day in court.

Let me ask you about another group looking for a day in court: the RNS Services v. the Secretary of Labor case that I referred to in my opening statement. It's a timely case. It's about mine safety. We know what happened in West Virginia a few days ago and yesterday in the state of the Kentucky, where there are serious questions being raised about whether there's adequate mine safety.

And in this case, there was a question as to whether or not the federal and state mine safety provisions applied to a company in a certain activity.

And you concluded they did not apply. You concluded that you would narrowly construe the statute passed by Congress, and in construing it that way, that the requirements of inspecting this mine location, this treatment of coal, would not be subject to federal and state inspection.

Again, when you dissented, and when given the chance, you ruled on the side of the company, on the side of the established institution, against the coal miners and against the workers in this circumstance.

It's a recurring pattern. The crushing hand of fate here seems to always come down against the workers and the consumers and in favor of these established institutions and corporations.

How would you explain the fact that you would so narrowly construe a statute when you knew that the lives and safety of coal miners were at stake?

ALITO: And the facility that was involved in that case was not a mine as a layperson would think of a mine.

ALITO: It wasn't an underground facility. It wasn't like the facility in West Virginia, where the terrible accident occurred a few days ago. It was basically a pile of coal that was being loaded onto trucks to be transported to another place.

The definition of a mine under the federal law is very broad, and it's not limited to what ordinary people would think of as a mine. And there was an argument that this facility -- which, as I said, as I recall, was basically a big pile of coal on top of the ground, and the coal was being hauled away to a cogeneration facility -- is that a mine? An ordinary person would look at that and say: That's not a mine; that's a pile of coal.

But the issue in the case was the kind of technical issue of interpretation that we get all the time, and the question was: Is this a mine in the sense of the law? And I thought it was not a mine in the sense of the law.

Now, that conclusion, I don't believe, would mean that this facility would be spared safety regulation at either the federal or local level.

It's been a long time since I worked on that case, but I would imagine that if the facility is not governed by the federal mining laws, it would be covered by OSHA, by the Occupational Safety and Health Administration and perhaps by state law.

So the issue would not be whether this facility would be allowed -- which was not a mine in the ordinary sense -- would be allowed to operate in an unsafe fashion. It was: Which body of laws and regulations would govern the facility?

DURBIN: Judge, I would say that your opinion did not prevail.

Two other judges, both Reagan appointees, who saw this case on the side of the workers, understood that the wording of the law is as follows: Congress declares the first priority and concern of all in the coal or other mining industry must be the safety and health of its most precious resource, the miner.

And instead of taking the obvious interpretation that these were people working in the mining industry, even if they were outside of the underground mine and the danger that it presents, you drew this statute as narrowly as you could, construed it as narrowly as you could, to take the company position here that these federal and state. In this case, the Federal Mine Safety Administration did not have jurisdiction.

I find this as a recurring pattern, and it raises the question in my mind whether the average person, the dispossessed person, the poor person who finally has their day in court, and may make it all the way through the process to the Supreme Court, are going to be subject to the crushing hand of fate when it comes to your decisions.

They have been many times at the 3rd Circuit, and that is a concern which I will continue when we have further questions in the next round.

Thank you, Mr. Chairman.

SPECTER: Do you care to respond, Judge Alito?

ALITO: Yes. Could I just say a couple of words? That case was a case of statutory interpretation and applying the statute. And that's how I thought it came out.

There have been many other cases that I have worked on on the court of appeals where I have come out in favor of the small person, who was challenging a big institution.

ALITO: And I could mention a number of them. Let me just mention Shore Regional High School, because I think because I think it has some relation to the Pirolli case, which you mentioned.

This was a case in which a high school student had been bullied unmercifully by other students in his school because of their perception of his sexual orientation; been bullied to the point of attempting to commit suicide. And his parents wanted to enroll him at an adjacent public high school. And the school board said, "No, you can't do that."

And I wrote an opinion upholding their right to have him placed in a safe school in an adjacent municipality.

And that's just one example. But all of these cases involve what judges are supposed to do, which is to take the law and apply it to the particular facts of the case that is before them.

SPECTER: Thank you very much, Judge Alito.

Senator Brownback?

BROWNBACK: Thank you very much, Mr. Chairman.

Good morning, Judge Alito, Mrs. Alito, family members. Good to have you here.

I've got a number of areas I'd like to ask you questions about, and I'm hopeful we can get through them and maybe reduce the need of time in the second round, which would probably be pleasing to your ears.

I want to first go at this area, because it seems to keep coming up, that I think is really not applicable and not reflective of your record, that you always take the side of the big institution and against the little guys, as you just stated.

And then, I want to get into a number of areas of constitutional law, some of which that you have written on, religious freedom-type cases, takings cases. I'd like to get into some of these areas.

But I want to enter into the record, Mr. Chairman, a letter from a former law clerk of yours, David Walk, dated January 6, 2006. David worked with you in the New Jersey U.S. Attorney's Office. I don't know if you remember David or not.

ALITO: I do. He was a fine attorney.

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

BROWNBACK: As a lifelong Democrat, former member of the ACLU, and it talks about how fair you were to everybody's rights.

But then he cites the case of Franklin Igbonwa. This was a Nigerian set to be deported for drug dealing who had testified against other Nigerian drug dealers and was fearful of being deported; that he would be killed once back in Nigeria.

The other two judges said his case -- he shouldn't be believed on the face of it. You said he should and that the trial court should have given more deference to this Nigerian to be deported. This was somebody that David Walk represented.

Talk about a little guy and a case, and that's one that is cited in this particular record and letter that I would hope my colleague from Illinois could take a chance at, because it's a legitimate point of view saying, "Well, it looks like you always take one side or the other." Here's where another side was taken.

And then here's a letter from another individual, worked with you, Cathy Fleming, lifelong Democrat, president-elect National Women's Bar Association; gives an unqualified endorsement of you.

And she says, "But by providing my credentials as an outspoken woman's rights advocate and liberal-minded criminal defense attorney, I hope you will appreciate the significance of my unqualified and enthusiastic recommendation of Sam Alito for the Supreme Court."

I think one can, kind of, look in the past and try to say, "Well, OK, there's this problem, there's that." But then, when people that know you well put their names to letters saying differently, I think that's also something we should consider.

And I'd ask that that letter be put into the record as well.

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

BROWNBACK: Thank you.

Judge Alito, the Supreme Court has gotten a number of things wrong at times, too.

BROWNBACK: That would be correct. And the answer, when the court gets things wrong, is to overturn the case.

Is that -- that's the way it works, isn't that correct?

ALITO: Well, when the court gets something wrong, and there's a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine, and I have said a lot about it...

BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson?

ALITO: Plessy was certainly wrong.

BROWNBACK: OK. I mean, and you have gone through this.

Brown v. Board of Education, which is in my hometown of Topeka, Kansas -- I was there last year at the dedication of the school house, 50 years ago -- that overturned Plessy.

Plessy had stood on the books since 1896. I don't know if you knew the number. And I've got a chart up here. It was depended upon by a number of people for a long period of time.

You've got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You've got these number of cases that considered Plessy and upheld Plessy to the dependency.

And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that's just not right.

Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

ALITO: It was certainly -- would be a factor that you would consider in determining whether to overrule it.

BROWNBACK: But obviously...

ALITO: Doctrine that would consider.

BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?

ALITO: Certainly.

BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy.

BROWNBACK: Is that correct?

ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.

One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law.

BROWNBACK: They don't.

ALITO: I think they should have recognized that.

But one of the things that was illustrated in those cases -- and Sweatt v. Painter, the last one on the list, brought that out -- was that, in fact, the facilities, the supposedly equal facilities, were never equal.

And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated -- if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal.

And that was an important factor, I think, in leading to the decision in Brown v. Board of Education.

BROWNBACK: I want to give you another number, and that is that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the cases, the court got it wrong in some 200 cases. And thank goodness the court's willing to review various cases.

BROWNBACK: I want to give you an example of a couple, though, that the court hasn't reviewed yet that I think are spectacularly wrong.

The 1927 case of Buck v. Bell; I don't know if you're familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired. Buck, a patient at the so-called Virginia State Colony for Epileptics and Feebleminded, was scheduled to be sterilized after doctors alleged that she was a genetic threat to the population due to her diminished mental capacity.

Buck's guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court, but in an 8-1 decision the court found that it was in the state's interest to have her sterilized.

Majority opinion written by Justice Oliver Wendell Holmes said, "We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetents."

Clearly, some precedents are undeserving of respect because they're repugnant to the Constitution. Isn't Plessy repugnant to the Constitution?

ALITO: It certainly was repugnant to the equal protection clause.

BROWNBACK: And the vision of human dignity.

Isn't Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?

ALITO: I think they are repugnant to the traditions of our country. I don't think there's any question about that.

BROWNBACK: Give you another case, the Korematsu case versus the United States, 1944 case. World War II broke out following Japanese attacks on Pearl Harbor. Feelings spread that Japanese-Americans, both naturalized and those born in the United States, might not be loyal to the United States; should be removed from the West Coast.

BROWNBACK: So great was the fear that even the esteemed writer, Walter Lippmann stated that, quote, "Nobody's constitutional rights include the right to reside and do business on a battlefield. There's plenty of room elsewhere for him to exercise his rights."

President Roosevelt signed an executive order removing them. Korematsu contested the constitutionality -- Fred Korematsu did -- of his internment.

In Korematsu v. the United States, the Supreme Court held that military necessity justified the internment program and that Fred Korematsu had no protection against relocation under the Constitution.

Of course, that was later overturned. Excuse me: That was never overturned. In 1948, Congress enacted the Japanese American Evacuation Claims Act to provide some monetary compensation. In 1980, Congress again revisited the case.

In 1988, Congress passed legislation apologizing for the internment; awarded each survivor $20,000. In 1999, Fred Korematsu was awarded the Presidential Medal of Freedom, the highest civilian honor that anyone can receive.

Justice has not been done because Korematsu remains on the books. It's still on the books.

Roe v. Wade: you have had every question on that. But I want to point out its difficulty. My colleagues on the other side look at this as completely settled law, but let's see what the legal experts say about how settled it is.

Lawrence Tribe, who will be here to testify, I believe probably against you, in a little bit. Let's see what he says, professor of law at Harvard.

Quote, "One of the most curious things about Roe is that behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

BROWNBACK: Settled law? Super-duper precedents? Lawrence Tribe asked some questions about it.

Justice Ruth Bader Ginsburg: "Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."

"Provoked, not resolved, conflict" one of your potential colleagues says.

Edward Lazarus, former clerk to Chief Justice Harry Blackmun, who wrote Roe: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right was granted elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather."

Settled law? Edward Lazarus has some questions about it being settled.

Let's look at John Hart Ely, former dean of Stanford Law School. Excellent law school in the country -- one of the top law schools in the country.

Roe v. Wade, quote, "is not constitutional law and gives almost no sense of an obligation to try to be. What is frightening about Roe is that this superprotected right is not inferred from the language of the Constitution framers' thinking respecting the specific problem at issue, any general value derivable from the provisions they included or the nation's governmental structure."

John Hart Ely -- think he thinks Roe is settled law? Not constitutional and gives no sense of an obligation to try to be.

Alan Dershowitz, professor of law, Harvard Law School, one of the top law schools in the country. It's not Princeton, but -- Roe v. Wade and Bush v. Gore, quote, "represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political process.

"Judges have no special competency, qualifications or mandate to decide between equally compelling moral claims, as in the abortion controversy. Clear governing constitutional principles are not present in either case."

BROWNBACK: Settled law, super-duper precedents? I think there's places where the court gets it wrong, and hopefully they will continue to be willing to revisit it.

Now I want to look at a couple of areas of law in addition to this. Your view of the Constitution -- and we had -- yesterday, you hit at this, I thought, on some of the edges, but I just want to get your thoughts on how you view the Constitution, how you would review it.

There are these different schools of thought on this: strict constructionists, living document, originalists, and there are several others that float around out there. How do you generally look at the Constitution?

And I'm aware yesterday you were saying that some provisions are very clear and some are not, and you seemed to apply a different set of viewpoints on those of the Constitution.

Could you articulate your view of how you look and interpret the Constitution?

ALITO: First of all, Senator, I think the Constitution means something. And I don't think it means whatever I might want it to mean or whatever any other member of the judiciary might want it to mean.

It has its own meaning. And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution.

In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.

But I think we have to recognize that the Constitution is very different from statutes in some important respects.

Statutes are often very detailed, and they generally don't exist without revision for very long periods of time.

The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.

And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.

ALITO: They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts -- and, of course, the legislative body can supplement this -- to apply that principle to the new situations that come up.

Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand.

BROWNBACK: Let me go to a specific area you have written quite a bit about, and that's on religious liberties and free exercise.

And I've looked at these cases. And this is going to be an active area of law in front of the Supreme Court. It has been for the last 40 years.

You wrote the case of ACLU v. Schundler, 3rd Circuit case considered ACLU challenge to religious displays erected by Jersey City on the plaza of city hall. Jersey City, for decades, it had holiday displays of menorah and Christmas tree. Litigation resulted in permanent pulling of this. The city came back, said, "OK, if that's not good enough, we'll put a nativity scene, a menorah, Christmas tree, Frosty the Snowman, Santa Claus, Kwanzaa symbols and signs explaining the display. So, OK, if two is not enough, we'll add more into that."

And they were again challenged by the ACLU. District court found no constitutional violation.

Panel 3rd Circuit, not including you, reversed that decision. Panel found no basis for the demystification approach, as they put it, and expressed skepticism as to constitutional display.

BROWNBACK: On remand, district court held that there was a constitutional violation. The city appealed. You sat on the panel that heard that appeal. In a 2-1 decision, you upheld the constitutionality of the modified display.

In your decision, you specifically cited Justice O'Connor and two particular issues regarding excessive entanglement with religious institutions and government endorsement or disapproval of religion.

Because Justice O'Connor used these factors to uphold similar displays in prior cases, you applied them to your upholding that Case. That's a correct interpretation; is that correct?

ALITO: Yes, it is, Senator.

BROWNBACK: Because these are coming up so much in front of the court, are these types of displays, you feel -- generally -- constitutionally permissible?

ALITO: Well, this is an area in which the Supreme Court has handed down several decisions. And like a number of the issues that the court has addressed under the establishment clause, it has drawn some fairly fine lines.

The first case involving a display of this nature was the Pawtucket, Rhode Island, display that was involved in Lynch v. Donnelly. And it was a display that was similar to the display in Jersey City. It included both religious and secular symbols. And they found that that was not a violation.

BROWNBACK: I want to jump in here, because I've several areas I want to go at. When I read your opinions, what I hear you to write is you would rather have a robust public square than a naked public square; that you think there is room for these sorts of displays in the public square.

ALITO: Well, that was exactly what Jersey City had decided in that case. And Jersey City said: We are one of the most religiously diverse, ethnically diverse, racially diverse communities you will find anywhere in the country. This is right across the New York harbor from the Statue of Liberty and from Ellis Island and it's still an entry point for a lot of people coming into the country.

And so they have -- over the course of the year at the appropriate time they had a Christmas display, they had a display of a Menorah. On that particular year, Hanukkah was early in the month of December, so the Menorah was up at a different point. They had celebrations for Muslim festivals, for Hindu festivals, for Buddhist festivals, for Latino festivals, for festivals concerning the many ethnic groups in the community.

And their view was that this is the way we should show that all of these groups are valuable parts of our community and express our embracing of them. And this display, they said, reflected that philosophy and, applying the precedents that the Supreme Court had provided in this area, the Pawtucket case.

And in a later case involving a display in Pittsburgh, Judge Rendell and I, who were the judges in the majority on that case, said this is constitutional; this is consistent with the establishment clause.

BROWNBACK: And that's what -- as we've had this 40 years of cases, I really hope we can have a public square that celebrates and not that's got to be completely naked to those views (ph). And I appreciate that.

You wrote in a free exercise case, C.H. v. Olivia. You heard a case in which a child sued through his parents for violation of his free speech and free exercise rights when his school removed and repositioned a poster he had made of a religious figure that was important to him. It was a picture of Jesus. The poster was part of an assignment where students were instructed to show something for which they were thankful.

The district court granted judgment in the pleadings in favor of the defendant, the school district. The 3rd Circuit affirmed.

You dissented in that opinion. Can you elaborate on your reasoning in that particular opinion? Do you remember the case?

ALITO: Yes, Senator, I do.

Justice O'Connor pointed out something that's very critical in this area. She said there is a big difference between government speech endorsing religion and private religious speech. And private religious speech can't be discriminated against. It has to be treated equally with secular speech.

And in this case, this involved a student who -- and there were two incidents. One involved reading. The students in the class were told that if they could read at a certain level, their reward would be to be able to read their favorite story to the class.

And this student satisfied those requirements. And the student wanted to read a very simplified version of the story of Jacob and Esau to the class. And the teacher said, "No, you can't read that to the class. You can read that privately to me off in a corner."

And then Thanksgiving was coming along and the students were told, "Draw a picture of something that you are thankful for."

And I guess the teacher expected they were going to draw pictures of football games and turkeys and things like that, but this student drew a picture of Jesus and said, "That's what I am thankful for."

And the teacher put all the other pictures up in the hall, but would not put this student's picture up in the hall because of its religious content.

ALITO: And that, we found, was a violation of this principle that you have to treat religious speech equally with secular speech.

If you ask a student to say something about a topic -- "What are you thankful for?" -- and the student and the student says something that fits within the topic that the student was asked to talk about, then you can't discriminate against one kind of speech or another.

BROWNBACK: I thought it was a very interesting stance, and I think appropriate that you took, and in one of the obviously very active areas of the law that we have.

I want to look at the issue of checks and balances on the federal court. It's a very active area here in Congress, as a lot of people across the country and certainly members of Congress have grown to feeling that we can do whatever we want to here, but wait until the court decides -- the court has moved beyond judicial restraint.

I asked this of John Roberts, and I asked -- the checks and balances on Congress are obvious. The president can veto a bill. A court can declare something unconstitutional. Checks and balances executive branch are clear. They can be challenged, their actions in the court. Court can say the president can't do that; we cannot appropriate money from here. We've got checks and balances in government. Any high school government student would know that.

Checks and balances on the court: When I talked to John Roberts about this, he said basically the only check and balance is judicial restraint. It's what the court restrains itself in. And yet you have within the constitution a provision that is there that I asked him about, that I want to ask you about.

Article III, Section 2 goes, "In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact" -- then it goes on with this interesting exceptions clause -- "with such exceptions and under such regulations as the Congress shall make." The last phrase known as the exceptions clause.

BROWNBACK: What do you believe is Congress' power to define the jurisdiction of the Supreme Court under the exceptions clause?

ALITO: Well, the exceptions clause, obviously, gives Congress the authority to define the appellate jurisdiction of the Supreme Court, and it can provide for various avenues by which cases get to the Supreme Court. And that has changed over the years.

There's been a controversy never resolved about the exact scope of the authority. It came up in Ex Parte McCardle, in the post-Civil War era. And it has been discussed by scholars in subsequent years, and there are several schools of thought on the question about whether it would be consistent with the Constitution for Congress to eliminate jurisdiction in the Supreme Court over a particular type of case.

That's an unresolved issue that the scholars have addressed. And some argue that that falls within the exceptions clause and some argue that it would be inconsistent with other provisions of the Constitution.

BROWNBACK: What I see taking place in this country is the court gets more and more involved in tough political issues, as you're going to be pressing other bodies, then, to say: Look we believe these decisions should be here. We believe the issues on the competing interests in abortion, the mother and the child, should be decided by legislative bodies.

BROWNBACK: But the court said no.

The issue of marriage is coming through the court system right now. As the court keeps getting involved in these areas, I think you're going to see these sorts of constitutional issues being explored more and more.

The marriage case I want to take you to, because that's making its way through the federal court -- 45 of our 50 states have deemed marriage being between the union of a man and a woman.

The state of Nebraska passes a state constitutional amendment, 70 percent of the people voting for it, saying that marriage is a union of a man and a woman. Yet a federal judge, in that case, threw out the state constitutional amendment on novel constitutional grounds, and it's now making its way up through the system.

The Congress has passed the Defense of Marriage Act, DOMA, passed overwhelmingly, signed into law by President Clinton. It basically did two things. First, it establishes for purposes of federal law, marriage would be defined as a union of a man and woman. And second it provided that no state would be forced to recognize a marriage entered into in another state.

A number of legal scholars believe this second part violates the full faith and credit clause of the Constitution.

Judge Alito, this case is coming forward and will probably be resolved in the federal courts, if it isn't resolved by the Congress through a constitutional amendment. What is your understanding of the meaning of the full faith and credit clause, and does this apply to the institution of marriage, which has been traditionally an issue and an area left up to the states?

ALITO: Well, several constitutional doctrines seem to be implicated by the matters that you have discussed.

ALITO: The full faith and credit clause in general means that one state must honor judgments that are issued by a court of another state, and it's an important part of the process. It is an important part of the federal system, so that we don't have warring decisions in different states.

I have not had cases involving this, but there are -- the doctrine has certain boundaries to it. There are exceptions and it covers certain areas and doesn't cover other areas. And a challenge to the Defense of Marriage Act under the full faith and credit clause would call into question the precise scope of the doctrine. And I believe that scholars have expressed differing views about how it would apply in that situation. And that's an issue that may well come up within the federal courts, almost certain to do so.

BROWNBACK: And I know you can't express on it.

One last thing I'd like to get into just very briefly is the takings clause in the Kelo case -- it was in a neighboring circuit to yours, Kelo v. City of New London, where private property was taken by another private group -- private property was taken by a public group and given to another private group.

BROWNBACK: Judge O'Connor wrote eloquently in her dissent: "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton or any home with a shopping mall or any farm with a factory now."

I just conclude by putting that in front of you, saying that this is one that people have relied upon for a long time: You couldn't take private property to another private individual; it's for public use. And I hope that's one that the court will end up reviewing at some point in time.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Brownback.

Senator Coburn?

COBURN: Thank you, Mr. Chairman.

Good morning. Long day.

I'd like to put a few things into the record, if I may. One is just a list of cases where Judge Alito ruled for the little guy. There's been a lot made, and here's a list of nine cases with specifics where he, in fact -- one of these I think he mentioned, but the others, and I would like unanimous consent.

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

COBURN: Actually, there's 13 cases.

And I also want to go back and quote from somebody who was a member of CAP, and this is Judge Napolitano. He's a commentator on one of the news shows.

And I'd like his statements put into the record from yesterday, where he clarified what CAP was about and clarified the interest of ROTC at Princeton, and the fact that that was one of the leading reasons that that organization was formed. So I'd like for those to be admitted as well.

As you know, I am not an attorney.

COBURN: Sometimes it's very disadvantageous on this panel, but at times it's advantageous.

So I have this little thing that I have to depend on, and I, kind of, read it for what it says. And as you talk about stare decisis, is that mentioned anywhere in here?

ALITO: It is not expressly mentioned in the Constitution.

COBURN: It's actually a procedure of common English law, correct?

ALITO: That's its origin, yes.

COBURN: That's its origin, and we use that as a tool for working with the Constitution.

Can you recall the number of times that precedents have been reversed by the Supreme Court?

ALITO: I don't know the exact figure, Senator.

COBURN: I think it's around 170-some times, affecting some 225 cases, I believe. That's close. That may not be exactly accurate.

So, in fact, it's a tool used to help us with the law, but our founders didn't say, "You have to use stare decisis in this," did they?

ALITO: No, they didn't.

They conferred the judicial power on the judiciary, and I think that contemplated that the federal judiciary would be permitted to proceed in accordance with fundamental judicial procedures as they had been known...

COBURN: At the time.

ALITO: ... at the time.

COBURN: And Article III, Section 2 really delineates the scope for the courts in this country.

And what it says is "all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority." So that really gives us the scope under Article III, Section 2.

And I was interested in Senator Kyl asked you yesterday about foreign law, something that is extremely disturbing to a lot of Americans; that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law.

COBURN: As a matter of fact, the obligation is to use the United States law, the Constitution and the treaties. And that's exactly what Article III, Section 2, says.

And so there's no reference at all to foreign law in terms of your obligations or your responsibility. And a matter of fact, the absence of it would say that, "Maybe this ought to be what we use and the codified law of the Congress and the treaties rather than foreign law."

So the question I have for you, and I couldn't get Judge Roberts to answer it because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don't think it is proper for the Supreme Court to use foreign law.

And I personally believe that that's an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice.

And I just wondered if you had any comments on that comment.

ALITO: Well, I don't think that we should look to foreign law to interpret our own Constitution.

I agree with you that the laws of the United States consist of the Constitution and treaties and laws and, I would add, regulations that are promulgated in accordance with law. And I don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution.

I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world.

ALITO: The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time.

They wanted them to have the rights of Americans. And I think we should interpret our Constitution -- we should interpret our Constitution. And I don't think it's appropriate to look to foreign law.

I think that it presents a host of practical problems that have been pointed out. You have to decide which countries you are going to survey. And then it's often difficult to understand exactly what you are to make of foreign court decisions. All countries don't set up their court systems the same way. Foreign courts may have greater authority than the courts of the United States. They may be given a policy-making role. And, therefore, it would be more appropriate for them to weigh in on policy issues.

When our Constitution was being debated, there was a serious proposal to have members of the judiciary sit on a council of revision, where they would have a policy-making role before legislation was passed. And other countries can set up their judiciary in that way. So you'd have to understand the jurisdiction and the authority of the foreign courts.

And then sometimes it's misleading to look to just one narrow provision of foreign law without considering the larger body of law in which it's located. If you focus too narrowly on that, you may distort the big picture.

So for all those reasons, I just don't think that's a useful thing to do.

COBURN: It actually undermines democracy, because you get to pick and choose. And the people of this country don't get to pick and choose that law. People from a different country. So it actually is a violation of the Constitution. And, to me, I very strongly and adamantly feel that it violates the good behavior, which is mentioned as part of the qualifications and the maintenance of that position.

I'm sorry Senator Durbin left. I wanted to razz him a little bit. You've taken quite a bit of criticism on things that you've written and said in 1985.

COBURN: But I want to put forward, for 45 years, Senator Durbin was adamantly pro-life and he wrote multiple, multiple letters expressing that up until 1989. He is a very strong advocate for the abortion stance and a free right to choose. But I think it's important that the American people -- that if he has the ability to change his mind on something he wrote in 1989, certainly you have the ability to say something was inaptly put.

And so this is just Senator Durbin. I'm teasing him a little bit. But I think it's important that people recognize people can change their mind.

I continue to believe the Supreme Court's decision in Roe v. Wade should be reversed. There are other members on the other that are adamantly pro-abortion, pro-the destruction of human life today, that have changed their mind, changed their position.

So it's hard to be critical of you on something in 1985, have written something, when many of us have backtracked on things that we've said through the years.

And so I think it puts a little bit of perspective into where we're going.

I want to spend just a minute, if I can. Yesterday, during Senator Feinstein's questioning, there was some discussion about the health exception to any regulations pertaining to abortion.

On January 22nd, when Roe was decided, court also decided Doe v. Bolton. In that case, the court ruled that a woman's right to abortion could not be limited by the state if abortion was sought for reasons of maternal health.

COBURN: And, as a practicing physician, I agree with that. I've actually performed abortions on women who were going to die if they did not have an abortion. So the choice was somebody alive versus losing both.

The court defined health as all factors physical, emotion, psychological, familial and the woman's age, relevant to the well- being of the patient. This exception effectively expanded the right to abortion for any reason through all the entire pregnancy.

Since that time, states have been trying to find ways to effectively regulate abortion without intruding on this health exception, but it has proven nearly impossible.

The absence of knowledge is something that Roe v. Wade, which I believe was wrongly decided, has hurt us immensely in this country. And the absence of informed consent on abortion has hurt us immensely.

And Mr. Chairman, I would like to enter into the record a study published -- a 35-year longitudinal study which was just released this January from New Zealand. It followed women, 600 women for 35 years, from the time of abortion, that studied ill health effects.

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

COBURN: I would also like to enter into the record a Breast Cancer Institute study, an analysis of a Lancet 3/25/04 article, and also the testimony of Dr. Elizabeth Shadigian, University of Michigan clinical associate professor, Department of Obstetrics and Gynecology as to complications.

SPECTER: All of those documents, without objection, will be made a part of the record.

COBURN: It's amazing what we don't know. And, as I explained in my opening statement, once we go down a path, the complications associated -- the rulings that you make have major impact.

I understand the questions that you cannot answer on things that are going to come before us. And I can't pretend to know what is in your heart about those issues.

But what I do know is you were pretty aggressively approached on positions in terms of Justice O'Connor and executive power.

And there seemed to be a blinding contradiction during some of your questions that were presented by my colleagues yesterday; they raised concerns that you're too close to the executive and too supportive of the executive power. They wanted to be sure that you respect the role of the judiciary and are free from the influences of the political branches.

However, they then argued that you should have the same ideology as Justice O'Connor to maintain the balance on the court.

I have trouble figuring out how they can have it both ways. That's an inherently political desire.

Is there anything in the Constitution, this little document, that says what the ideology ought to be of one Supreme Court justice replacing another one?

ALITO: The Supreme Court simply gives the president the authority to nominate justices of the Supreme Court and other federal judges and gives Congress the advice and consent responsibility and doesn't go further than that.

COBURN: And the president, by being elected -- the only person in this country that's elected by the whole country -- is given that honor and privilege as well as that responsibility. And then we have the responsibility to advise and consent to that. Is that correct?

ALITO: That's correct.

COBURN: But nowhere in the Constitution, nor by precedent -- as a matter of fact, the precedent's just exactly the opposite of that -- is it stated that somebody has to have the same philosophy as somebody that's coming off the court.

ALITO: I think that every Supreme Court justice is an individual, and I think every nominee is an individual, and no nominee can ever be a duplicate of someone who retires, and particularly when someone retires after such a distinguished career and such a historic career as Justice O'Connor. Nobody can be expected, as a nominee, to fit that mold.

COBURN: So the fact that you have to fit Sandra Day O'Connor mold is really a misapplication. There is no precedent that would say that?

ALITO: If I'm confirmed I'll be myself. I'll be the same person that I was on the Court of Appeals. That's the only thing that I can say in answer to that.

COBURN: Let me repeat some facts that one of my colleagues mentioned yesterday.

Of the 109 justices to sit on the Supreme Court, nearly half had replaced justices appointed by another political party.

President Clinton replaced Justice White, who dissented on Roe v. Wade, with Justice Ginsburg, who argued for a right to abortion. Justice Ginsburg was -- I think, three votes against her in the Senate when she was approached, and she took it completely opposite. But she was well qualified. She had integrity. And she was voted on to the court, even though many people knew that her philosophy was very different than theirs. Isn't that true?

ALITO: The vote was 90-something to a small number; I know that, yes.

COBURN: A lot of times in these hearings you don't get a chance to say why would you want to be a justice of the Supreme Court of the United States?

COBURN: Why would you want that responsibility? Why do you want to go through this process to be able to achieve that position? Can you tell the American people why?

ALITO: I think it's a chance to make a contribution. I think it's a chance to use whatever talent I have in the most productive way that I can think of.

There are a lot of things that I can't do and there are a lot of things that I couldn't do very well if I was given the assignment of doing them.

But I've spent most of my career as an appellate attorney. Well, I spent most of my career before becoming a judge as an appellate attorney. And now I've spent 15 years as an appellate judge. And I think this is what I do best.

And I think this gives me an opportunity to make a contribution to the country and to the society. Because the Supreme Court has a very important role to play, and it's important that it do the things that it's supposed to do well. And I would do my very best to further that.

And it is also important for the Supreme Court, and, for that matter, all of the federal courts, to exercise restraint. And as you were referring to earlier, that has turned out to be the principal check on the way the judiciary does its work on a day-to-day basis. The judiciary is not checked in its day-to-day work in the same way as the Congress and president.

ALITO: The Congress can pass a law -- can pass a bill -- and the president can veto it. One house can pass a bill; the other house may not go along. The president has to propose legislation to Congress if the president wants legislation. Congress can pass laws that the president doesn't like.

There are checks and balances that are worked out in the ordinary processes of government. But when it comes to the judiciary, in deciding constitutional cases, the judiciary is checked on a daily basis primarily by its own discipline, its own self-restraint.

And so it's important for -- the judiciary has these twin responsibilities that are in tension at times, doing what it is supposed to do and doing those things well and vigorously and courageously, if it comes to that, but at the same time, constantly monitoring its own activities and asking, "Are we doing what we are supposed to be doing as judges? Are we functioning as judges? Or are we stepping over the line? Are we turning ourselves into legislators? Are we turning ourselves into members of the executive branch or administrators?"

And the judiciary has to maintain its independence. That's of critical importance. That's an important part of the role. And that also has to be informed by this sense of self-restraint.

COBURN: Thank you.

During Judge Roberts' hearing, Senator Feinstein tried to get him to talk and speak out of his heart, and I thought it was a great question, so that American people can see your heart.

This booklet's designed to protect the weak, to give equality to those who might not be able to do it themselves, to protect the frail, to make sure that there is equal justice under the law.

You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent.

Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

COBURN: Thank you.

Mr. Chairman, I think I'll yield back the balance of my time at this time, and if I have additional questions, get them in the next round.

SPECTER: Thank you very much, Senator Coburn.

We'll now proceed to the second round of questioning, with each senator having 20 minutes. And we'll take 20 minutes more, and then we'll take a break.

SPECTER: Is it appropriate for the court to declare acts of Congress unconstitutional because of our, quote, "method of reasoning"? Does the court have some superior insights on a method of reasoning?

Is it appropriate for the court to declare acts of Congress unconstitutional, functioning as a taskmaster to make sure that Congress does its homework?

There have been a series of decisions which have seriously undercut congressional power, where, in my opinion, the court has usurped the authority of Congress. And this moves into the often- criticized range of congressional legislation and judicial legislation in derogation of the congressional power.

We are seeking, Judge Alito, to have an appropriate equilibrium in our system. And the beauty of the American system is that no one has too much power. We call it separation of power, although not specifically mentioned in the Constitution. We call it checks and balances.

We have looked into the issue of tremendous importance -- regrettably, we haven't plumbed it, and only scratched the surface, but our time is limited -- on authority of the president under war powers, Article II, contrasted with Congress' authority to legislate for privacy under the Foreign Intelligence Surveillance Act.

SPECTER: And I want to move into two other analogous areas, Congress versus the court and the court versus Congress, as Congress has taken away the jurisdiction of the court, notably, very recently, by stripping habeas corpus jurisdiction on detainees.

When the Congress legislated to protect women against violence, the Congress did so with a very expansive record. It wasn't like Lopez, which was a revolution, where the court upset 60 years of congressional power under the Commerce Act.

But in the case of U.S. v. Morrison, involving the legislation to protect women against violence, there was a record which included gender bias from task forces in 21 states, five separate reports. And notwithstanding a, quote, "mountain of evidence," as noted by four dissenters, the court declared the act unconstitutional because of our method of reasoning.

Now, you're a judge; you may be a Supreme Court justice. Is there something we're missing? Do you judges have some method of reasoning which is superior to the method of reasoning of the Congress?

ALITO: I think the branches of government are equal and all the officers in all the branches of government take an oath to the same constitution.

SPECTER: Equality on method of reasoning?

ALITO: I would never suggest that judges have superior reasoning power than does Congress.

I think what the court was getting at when it made that statement in Morrison -- and yesterday, I looked at something that I had written and said, "That was not well phrased."

ALITO: I think that what the court was getting at there in Morrison was that it was applying a certain standard, certain legal standard, as to whether something substantially affected commerce. And I think that's what they were getting at.

SPECTER: Hard to figure out what they were getting at. We do know what they said. They said our method of reasoning was defective.

But I take it, from your statement, you wouldn't subscribe to overturning congressional acts because of our method of reasoning?

ALITO: I think that Congress's ability to reason is fully equal to that of the judiciary, and I think that...

SPECTER: And you think that even after appearing here for a day and a half?

(LAUGHTER)

ALITO: I have always thought that. And nothing has changed by mind about it.

HATCH: We're starting to worry about you.

SPECTER: Let me...

(LAUGHTER)

That's on Senator Hatch's time.

(LAUGHTER)

Let me take up the Americans with Disability Act. On two decisions within a couple of years of each other, one where the Supreme Court declared unconstitutional the Americans with Disabilities Act as it applied to employment, upholding the act as it applied to access to facilities.

And Justice Scalia had a ringing dissent when the court imposed a standard of congruence and proportionality -- a very difficult standard which you wrestled with in the family leave case.

SPECTER: The congruent and proportionate standard came to the court in the Boerne case in 1997, so it is very recent origin, and it has all the earmarks of having been pulled out of the thin air. And Justice Scalia said that it was a thinly veiled invitation to judicial arbitrariness and policy-driven decision making. And Justice Scalia criticized the majority opinion for functioning as a taskmaster to see to it that Congress had done its homework.

And here again there was a voluminous record -- 13 congressional hearings, 30,000 people were surveyed.

Do you think, Judge Alito, that a test like congruence and proportionality is fair notice to the Congress on what we can do by way of legislation? Here we're dealing -- and it maybe worthy just a little explanation.

When Congress legislates on constitutional issues under Article V of the 14th Amendment, the court then makes a comparison to state immunity under the 11th Amendment.

But do you think that's a fair test as to what we're to try to figure out what the Supreme Court is later going to say is congruent and proportionate?

ALITO: Well, like many tests in the law, it is not a mathematical or a scientific formula that can produce a particular result with certainty as it is applied to particular situations.

SPECTER: Well, how about just fair notice? Never mind mathematical certainty.

ALITO: It addresses a difficult problem the court has grappled with over the years, and that is the scope of Congress' authority under Section 5 of the 14th Amendment to pass legislation enforcing the provisions of the 14th Amendment.

One argument that has been made, which would represent a very narrow interpretation of congressional power -- and this is basically the position that Justice Scalia took in the dissent that you mentioned, is that Congress's authority doesn't extend any further than remedying actual violations of the 14th Amendment; that Congress doesn't have additional authority to enact prophylactic measures outside of the area of race, which Justice Scalia would treat differently and recognize broader authority because of the historical origin...

SPECTER: Judge Alito...

ALITO: ... of the 14th Amendment.

SPECTER: ... what's wrong with the test of Maryland v. Wirtz, and Gonzales v. Raich, as you take a look at power under the commerce clause and to be applicable to our legislation under the Americans With Disability Act?

SPECTER: That test is where the court has gone into some length to say what you have gone into repeatedly: that judges have no expertise. It's up to the Congress to have hearings, up to the Congress to find facts, up to the Congress to find out what goes on in the real world.

And in Wirtz, in 1968, and reaffirmed recently in Gonzales v. Raich, after Morrison, after Lopez, quote, "Where we find the legislators have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce" -- could apply as well to disability -- "our investigation is at an end."

What's wrong with that test? Would you subscribe to that test over the proportionate and congruence test?

ALITO: There are a number of tests that have been used and proposed over the years in this area.

ALITO: And this is the subject I think of continuing litigation in the Supreme Court.

There is the Maryland v. Wirtz approach and then the City of Boerne approach. And you mentioned that the City of Boerne is a relatively recent decision and it has been followed by a number of subsequent decisions.

SPECTER: Where did it come from? Where did the Boerne test on proportionate and congruence come from, if not thin air?

ALITO: I think it was an effort by the majority in that case to identify a standard that would not strictly limit congressional power to remedying established violations of the 14th Amendment without going -- while still in their view retaining the necessary remedial connection to Section 5 of the 14th Amendment.

It is an approach that they have used in a number of cases. And the cases have not come out -- sometimes the results have not been predictable.

You mentioned the contrast between the two decisions under the Americans with Disabilities Act. I think Nevada v. Hibbs was a decision that some people -- that surprised some people based on the court's prior precedents.

So there is, I think, still some ferment in this area. I am sure it is a question that is going to be -- that will come up in future cases.

SPECTER: We're speaking not only to you, Judge Alito, but to the court. The court watches these proceedings. And I think they ought to know what the Congress thinks about making us schoolchildren or challenging our method of reasoning.

SPECTER: We're considering legislation which would give Congress standing to go into the Supreme Court to uphold our cases.

Right now the solicitor general does that. He's in the executive branch. We don't want to derogate the solicitor general in your presence, Judge Alito, but the thinking that we've had was to speak about your decisions and the court's decisions on the floor of the Senate. Nobody pays attention to that. Maybe we would try to come in as amicus. Why do that?

We have the power to grant standing. We could grant standing to ourselves and come into court and fight to uphold constitutionality.

Let me move at this point to the recent legislation which takes away the jurisdiction of the federal bench to hear habeas corpus decisions. It's in the context of the detainees.

Justice O'Connor in Hamdi laid out the law in flat terms. "All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within United States" -- every individual, not just citizens. And then she spells out the way you suspend the writ, and you do it only by rebellion or invasion.

And then this recent legislation says, "The District of Columbia Court of Appeals shall have the exclusive jurisdiction to determine the validity of any final decision by the Combatant Status Review Tribunal."

SPECTER: If it means what it says, and judges like to look to the statute as opposed to going to congressional intent, if it means what it says that there was exclusive jurisdiction, there's no jurisdiction of the Supreme Court.

This may come before the court. What factors would you consider to be relevant in making the analysis as to, again, maintaining equilibrium between the court and the Congress of our authority to take away federal court jurisdiction on this important item?

ALITO: In the area of habeas corpus, there are a number of important principles that have to be considered in reviewing any legislation that someone contends has altered habeas jurisdiction.

The first is that the courts said in a case called INS v. St. Cyr that if there is an attempt to -- that habeas jurisdiction can't be taken away unless it's clear in the statute that that's what was intended. Habeas jurisdiction is not to be repealed by implication. That's one important principle.

And then in Felker v. Turpin, which involved the Anti-Terrorism and Effective Death Penalty Act of 1996, the Supreme Court considered arguments about whether provisions of that legislation, which restructured federal habeas review, violated the Constitution.

And they found that there wasn't a violation because the essentials of the writ were preserved. And so if other legislation is challenged, it would have to be reviewed under standards like that.

SPECTER: Judge Alito, I want to move now to a subject on efforts to have television in the Supreme Court of the United States, a subject very near and dear to my heart.

SPECTER: I've been pushing it for a long time. I'm personally convinced that it's going to come some day. I'm not sure whether it'll come during my tenure in the Senate. More likely it'd come during the tenure of Chief Justice Roberts in the Supreme Court, or your tenure, if confirmed.

The Supreme Court said in the Richmond newspaper case v. Virginia, quote, "The rights of a public trial belong not just to the accused, but to the public and the press, as well. Such openness has long been recognized as an indispensable attribute in the Anglo-Saxon trial."

There are many other lines of authority, but only a few moments left to set the stage here. But the Supreme Court has the final word.

We can talk about the president's war power under Article II and the congressional authority under the Foreign Intelligence Surveillance Act, but the court makes the decision.

We can talk about taking away habeas corpus jurisdiction, but the court decides whether we can do it or not.

We can talk about the insult of declaring acts of Congress unconstitutional because of our method of reasoning, but the court can do that.

And the court has made these decisions on all of the important subjects. The court decided who would be president of the United States in Bush v. Gore. The court decides who lives on a woman's right to choose, who dies on the right to die, on the death penalty, on every critical decision.

The Congress has the authority to do many things on the administrative level, such as we set the starting date for the court, the first Monday in October. We set what is a quorum of the court, six members. Congress sets the size of the court, effort made by President Roosevelt to increase the number from nine to 15. We put provisions in on speedy trial, time limits on habeas corpus matters.

In recent times, some of those who have objected to televising the court has been on television quite a bit themselves. When Justice Scalia and Justice Breyer come on TV, it's a pretty good show, not much surfing when that happens, like surfing when my turn comes to question.

But this proceeding on confirmation of Supreme Court justices has attracted a lot of attention. As I said to you yesterday, I'm tired of picking up the front page everywhere and seeing your picture on it.

Brit Hume was on Fox News talking about going to a Redskins game in 1991 when Justice Thomas was being confirmed and how he had his ear sets on to listen to the proceedings.

SPECTER: I think Senator Leahy was questioning Professor Hill at that particular time.

But how about it? Why shouldn't the Supreme Court be open to the public with television?

ALITO: Well, I had the opportunity to deal with this issue, actually, in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if they wanted.

And we had a debate within our court about whether we should allow television cameras in our court room. And I argued that we should do it. I thought that it would be a useful...

SPECTER: Really? You have taken a position on this issue?

ALITO: Well, I did, and this is one of the matters on which I ended up in dissent in my court.

(LAUGHTER)

The majority was fearful that our Nielsen numbers would be in the negative.

(LAUGHTER)

SPECTER: Could you promise the same result?

(LAUGHTER)

Could you promise the same result, if confirmed, to be a dissenter? Will the court allow TV?

GRASSLEY (?): Be careful how you answer.

SPECTER: Be careful how you answer everything, as you have been.

(LAUGHTER)

ALITO: The issue is a little bit different on the Supreme Court. And it would be presumptuous for me to talk about it right now, particularly since, I think, at least one of the justices has said that a television camera would make its way into the Supreme Court room over his dead body.

So I wouldn't want to comment on it...

SPECTER: Justice Souter. But quite a few of his colleagues have been on television. Let me ask you this, Judge Alito -- I know what the answer will be -- with seven seconds left, will you keep an open mind?

ALITO: I will keep an open mind, despite the position I took on the 3rd Circuit.

(LAUGHTER)

SPECTER: Thank you, Judge Alito. We'll now take a 15-minute break and we'll reconvene at 11:35.

(RECESS)

SPECTER: The hearings will resume.

And, turning to distinguished ranking member, Senator Leahy, for 20 minutes.

LEAHY: Thank you, Mr. Chairman.

And, Judge Alito, welcome back. If the past is any prologue, you probably don't have more than another day or so of this to go through.

But I am concerned -- and I want to state this our right outright -- concerned that you may be retreating from part of your record. And I think that some of the answers, and I have expressed this concern. I mentioned it to the chairman. I'm concerned some of your answers were inconsistent with past statements.

All of us want to know your legal and constitutional philosophy. So, let's go back to the questions I was asking yesterday about checking presidential power.

And we spoke about Justice Jackson's opinion in Youngstown. Justice Jackson, as you know, is a hero of mine. And I point often to the Youngstown case.

But when Congress acts to restrain the president's power, as we did with the anti-torture statutes and the Foreign Intelligence Surveillance Act, I believe the president's power than is at its lowest ebb.

You seemed to be saying yesterday that fell into the second category of Jackson, the "twilight zone." Actually, I believe you were mistaken on that. Justice Jackson spoke of the "twilight zone" area, or as he said, "a zone of twilight," where Congress had not acted.

So, let's go to a landmark decision, Hamdi and Justice O'Connor's decision. That's whether there was due process required, so a U.S. citizen can have a meaningful chance to challenge his detention by the government.

Now, Justice O'Connor wrote that the president does not have a blank check even in time of war. And yesterday, you told Senator Specter that you agreed with Justice O'Connor's general statement.

A very different view was in the dissent. Justice Thomas would have upheld the extreme claims for this all-powerful and essentially unchecked president.

LEAHY: He argued the government's power could not be balanced away by the court and there is no occasion to balance the competing interests.

Which one is right, Justice O'Connor or Justice Thomas? They're quite a bit different.

ALITO: Justice O'Connor wrote the opinion of the court.

The first question that she addressed in Hamdi was whether it was lawful to detain Hamdi, and it was a statutory question, and it was a question whether it was -- whether he was being detained in violation of what is often referred to as the anti-detention statute, which was passed to prevent a repetition of the Japanese internment that occurred during World War II. And she concluded that the authorization for the use of military force constituted an authorization for detention.

And then she went on to the issue of the constitutional procedures that would have to be followed before someone could be detained. And she looked to standard procedural due process law in this area and identified some of the requirements that would have to be followed before someone could be detained.

And now issues have arisen about the identity of the tribunal that is to make a determination about detaining people who are taken into custody during the war on terrorism.

And that's one of the issues that's working its way through the court system.

LEAHY: No, I'm not talking about those things that are working, but just on Hamdi -- that has been decided -- would you say that Justice O'Connor basically applied the Jackson test, not the twilight zone test but the test of where the president's power is at its lowest ebb?

ALITO: In addressing the statutory question, I don't think she had any need to get into Justice Jackson's framework as well.

LEAHY: So would you say it would be consistent with what Justice Jackson said?

ALITO: I think it's certainly consistent with what Justice Jackson said...

LEAHY: Which decision do you personally agree with, hers or the dissent by Justice Thomas?

ALITO: I think that the war powers are divided between the executive branch and the Congress. I think that's a starting point to look at in this area.

The president is the commander in chief, and he has authority in the area of foreign affairs and is recognized in Supreme Court decisions as the sole organ in the country for conducting foreign affairs.

LEAHY: But you're not going to say which of the two decisions you...

ALITO: Well, I'm trying to explain my understanding of the division of authority in this area. And I think that it's divided between the executive and the Congress.

I certainly don't think that the president has a blank check in time of war. He does have the responsibility as the commander in chief, which is an awesome responsibility.

LEAHY: We all understand that and appreciate that. My understanding, listening to Chief Justice Roberts when he was here same way you are, that he felt that Justice O'Connor's decision most clearly tracked the Jackson standard in Youngstown.

But let's go -- I want to get more into this unitary executive theory, because I really had questions listening to you yesterday. You've said as recently as five years ago that you believe the unitary executive theory best captures the constitutional role of presidential power. You were a sitting judge when you said that.

And do you still adhere to that legal and constitutional view that you were expressing five years ago?

ALITO: I think that the considerations that inform the theory of the unitary executive are still important in determining and deciding separation of powers issues that arise in this area.

ALITO: Of course, when questions come up involving the power of removal, which was the particular power that I was talking about in the talk that you are referring to, those are now governed by a line of precedent from Myers, going through Humphrey's executor and Wiener and Morrison, where the court held 8-1 that the removal restrictions that were placed on an independent counsel under the Independent Counsel Act did not violate separation of powers principles.

So those would be applied. Those would be the governing precedents on the question of removal.

But my point in the talk was that the considerations that underlie this theory are relevant; should inform decision-making in the area, going beyond the narrow question of removal.

LEAHY: But in the past, you criticized Morrison. Are you saying now that you're comfortable with Morrison? Do you accept it?

ALITO: Morrison is a settled precedent -- is a precedent of the court. It was an 8-1 decision. It's entitled to respect under stare decisis. It concerns the Independent Counsel Act, which no longer is in force.

LEAHY: So do you hold today that the independent counsel statute was beyond the congressional authority to authorize?

ALITO: No, I don't think that was ever my view.

LEAHY: (inaudible) All right.

Under the theory of unitary executive that you've espoused, what weight and relevance should the Supreme Court give to a presidential signing statement?

I ask that because these are real issues. I mean, we passed the McCain-Warner et al. statute against torture, when the president did a separate -- after he signed it into law -- he didn't veto it -- he had the right and, of course, the ability to veto it. He didn't veto it. He signed it into law and then he wrote a sidebar or a signing statement basically saying that it will not apply to him or those acting under his orders if he doesn't want it to.

Under a unitary theory of government, one could argue that he has an absolute right to ignore a law that the Congress has written. What kind of weight do you think should be given to signing statements?

ALITO: I don't see any connection between the concept of a unitary executive and the weight that should be given to signing statements in interpreting statutes. I view those as entirely separate questions.

The question of the unitary executive, as I was explaining yesterday, does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive. So those are entirely different questions.

The scope of executive power gets into the question of inherent executive power.

LEAHY: Let me go into that little bit. Because back in the days when I was prosecutor, I was very shocked what happened on the Saturday Night Massacre.

LEAHY: The president orders certain things to be done. The attorney general says, "No, I won't do it." He fires him.

The deputy attorney general -- he said, "OK, you do it." And the deputy attorney general wouldn't, saying it would violate the law. Fires him.

They keep on going down. Finally, they find one person, a person you have praised -- Robert Bork -- who says, "Fine, I'll fire him. I'll do what the president says."

You have criticized Congress for allowing these independent agencies to refine and apply policies passed by Congress. You said that insofar as the president is the chief executive, he should follow their policies, not Congress.

So let's take one for example.

The Federal Election Commission, independent agency. They make policy. Suppose the president, whoever was the president, didn't like the fact they were investigating somebody who had contributed to him. Could he order them to stop that investigation?

ALITO: Senator, I don't think I've ever said that -- I don't think I've ever challenged the constitutionality of independent agencies.

My understanding...

LEAHY: No, but you said -- I want to make sure I -- my understanding is you've chastised Congress for giving so much power to them when the power should be in the president or in the executive.

ALITO: Senator, I don't think I've never said that, either.

I said that I thought that there was merit to the theory of the unitary executive. And I tried to explain how I thought that should play out in the post-Morrison world.

Accepting Morrison as the Supreme Court's latest decision, in a resounding 8-1 decision on the issue of removal, how should the concept of the unitary executive play out in the post-Morrison world?

ALITO: On the issue of removal, my understanding of where the law stands now is that Myers established that there are certain officers of the executive branch whom the president has the authority to remove as he sees fit.

LEAHY: Of course, he could fire his whole Cabinet today if he wanted to. We all accept that.

ALITO: Well, that was the issue that was presented by the Tenure in Office Act that led to the impeachment of the first President Johnson. And in Myers, Chief Justice Taft, although the act -- that controversy was long passed -- Chief Justice Taft opined that the Tenure in Office Act had been unconstitutional.

LEAHY: But let's not go off the subject of these independent agencies that we have set up, using the example of the FEC, the Federal Election Commission. Could the president, if he didn't like somebody they were investigating, a contributor or something, could he order them to stop?

ALITO: What Morrison says is that Congress can place restrictions on the removal of inferior officers, provided that those removal restrictions don't interfere with the president's exercise of executive authority.

So they adopted a functional approach. And that was the court's latest word on this question.

They looked back to Humphrey's Executor and Wiener, which had talked about categories, and they -- categories of quasi-judicial and quasi-legislative officers -- and they reformulated this as a functional approach. And that's the approach that would now be applied.

LEAHY: Do you believe the president has the power to curtail investigations, for example, by the Department of Justice? The Department of Justice is under him.

ALITO: I don't think the president is above the law.

ALITO: And the president is the head of the executive branch. And I've explained my understanding of the removal restrictions that can and cannot be placed on officers of the executive branch.

LEAHY: But could he order them to stop an investigation?

ALITO: Well, you would have to look at the facts of the case and the particular officer that we're talking about.

LEAHY: Could he order the FBI to conduct surveillance in a way not authorized by statute?

ALITO: The president is subject to constitutional restrictions and he cannot lawfully direct the FBI or anybody in the Justice Department or anybody else in the executive branch to do anything that violates the Constitution.

LEAHY: I'm speaking now of statute. Could he order our intelligence agencies to do something that was specifically prohibited by statute?

ALITO: Well, my answer to that is the same thing. He has to follow the Constitution and the laws of the United States. He has to take care that the laws are faithfully executed.

If a statute is unconstitutional, then the Constitution would trump the statute. But if a statute is not unconstitutional, then the statute is binding on the president and everyone else.

LEAHY: But does the president have unlimited power just to declare a statute -- especially if it is a statute he had signed into law -- to then declared that unconstitutional, and he's not going to follow it?

ALITO: If the matter is later challenged in court, of course, the president isn't going to have the last word on that question. That's for sure. And the courts would exercise absolutely independent judgment on that question. It is emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the court.

LEAHY: Now, that is an answer I agree with. Thank you.

In other areas, SEC, can he order them to stop an investigation if it's if somebody doesn't want to investigate it?

ALITO: Well, the independent agencies are governed by Humphrey's Executor and cases that followed that. And there has been restrictions placed on the removal of commissioners of the independent agencies and they have been sustained by the Supreme Court.

And that is where the Supreme Court precedent on the issue stands.

LEAHY: Is that settled law?

ALITO: It is a line of precedent that culminated, I would say -- there have been a few additional cases relating to this, the Edmund case and the Freitag case -- but I would look to Morrison, which was an 8-1 decision involving a subject of considerable public controversy, the removal of an independent counsel, removal restrictions on an independent counsel.

LEAHY: I'm still having some difficulty in statements you've made about the unitary form of government and how you would apply it.

You suggested an answer to a question I asked. When people's rights are violated they should have their day in court. The court's are there to protect the rights of individuals. I don't think anybody in this room would disagree with that.

It's the practice we look at.

In PIRG v. Magnesium Elektron, you concluded the Congress didn't have the constitutional authority to authorize citizens to bring a suit against a polluters under the Clean Water Act.

Whether the people had justiciable claims or not, there were a number of people downstream from the Magnesium Elektron. They said the water had been polluted. They brought a suit. You threw it out. Judge Lewis dissented; said it should have gone back to the lower court on the question of facts.

I'll give you a two-part question. One, why did you send that back? And do you accept Laidlaw as being settled law?

ALITO: Well, Magnesium Elektron presented the question of whether we had a case or controversy under Article III -- and that's the fundamental limit on our jurisdiction.

The Supreme Court has said that we do not have a case or controversy before us if we do not have a party that has constitutional standing, which requires injury in fact.

ALITO: And the issue was whether the plaintiffs in that case had established injury in fact.

There was a plant that was discharging certain things into a creek which eventually emptied into the Delaware River. And the plaintiffs in the case alleged that they enjoyed the Delaware River in a variety of ways -- they ate fish from the river, they drank water from the river, they walked along the river -- but there was nothing in the evidence -- and Judge Lewis agreed on this -- Judge Roth wrote the opinion. I agreed with Judge Roth and Judge Lewis with us on this point.

There was nothing in the record...

LEAHY: But didn't Judge Lewis agree with you on the legal point, but he suggested sending it back to the lower court to determine whether there were facts to give standing?

I mean, we all agree, you can't be in a case if you don't have standing. But didn't Judge Lewis say, "Send it back to the lower court so they can determine on the facts whether there might be standing"?

ALITO: The evidence that was before us did not show that there was any standing on the part of the plaintiffs. There was no evidence of harm to the Delaware River in any way from the discharges and that was the basis of Judge Roth's opinion with which I agreed.

As I recall, Judge Lewis's point was that the case should go back to the district court so that the plaintiffs could have an opportunity to present additional evidence.

But as I recall, they were not even arguing before us that they had additional evidence. They were not arguing before us, as I recall, that, "We have additional evidence and we would like the opportunity to go back to the district court to present it."

That's my recollection of the matter.

LEAHY: And the other part of my question is Laidlaw settled law?

ALITO: Well, Laidlaw is a precedent on the Supreme Court. And my answer to the question there is the same: It is entitled to the respect of stare decisis.

SPECTER: Thank you, Senator Leahy.

Senator Hatch?

HATCH: Judge Alito, I just want to clarify a few matters.

In his questioning this morning, Senator Durbin from Illinois, I think apparently misstated what Chief Justice Roberts said during his confirmation hearings.

HATCH: Senator Durbin claimed that the chief justice -- now the chief justice said that Roe was the settled law of the land.

In fact, that exchange that Senator Durbin referred to was made during the confirmation process for Judge Roberts to the Circuit Court of Appeals for the District of Columbia, where he would have to admit that that would be settled law for him in that court. It's beyond question that for a circuit court nominee the Supreme Court's pronouncements on specific questions are binding precedents and will be the settled law of the land.

Moreover, contrary to the distinguished senator from Illinois' suggestion, then-Judge Roberts' testimony, his recent confirmation hearing, and your testimony today and yesterday, you've both been entirely consistent in this particular matter.

I just wanted to clarify that, because there's a difference between a nominee for the circuit court of appeals saying that something is settled law that he or she has to be bound by than by somebody who is a nominee for the Supreme Court. And that's just a matter of clarification that I would like to make at this time.

Now, yesterday, you were asked some 340 questions by 15 senators, and you're getting a bunch today. And I'm told that you felt that you had to decline to answer only about 5 percent of them. That's even lower than previous Supreme Court nominees, by far, in most cases.

Now, this hearing has hopefully provided an opportunity for you to address our concerns and answer some of the criticisms from members of this committee. But, of course, there's always a battle waged outside of this committee room by the special interest groups who are also making charges and launching, really, unfair attacks on you.

Now, these attacks typically go directly across the airwaves or the Internet with hardly a chance to even catch them, let alone address them or rebut them or correct them. So I want to give you a chance to respond to some of these attacks by some of these left-wing groups, many of which are certainly less than responsible, in my view, pretty reprehensible in what they do in these matters.

HATCH: One group says in a press release that in the Chittister case, and at other times in your career on the bench, you go out of your way to rule against workers.

Now, this group claims that what it calls your views and biases are strong evidence that you would, in their words, quote, "rarely rule in favor of those seeking justice in the courts," unquote.

I think that's a good example of how misleading some of these groups can actually be, where they're looking only for results in certain cases rather than upholding of the law itself in those particular cases.

And, in that particular case, they're apparently willing to ignore two things about the cases they discuss. They ignore the facts, they ignore the law, and that's all, just the facts and the law. But they also ignore what you've written, and they ignore what you've said here today.

How about that criticism, Judge? In Chittister did you go out of your way to rule against workers? What were the facts and the law in the case? And why did you think that they required the result that you finally upheld in that case?

ALITO: I thought the result was dictated by Supreme Court precedent, and I wasn't the only one who thought that. That was a unanimous decision of our panel. Judge McKee and I believe Judge Fullum (ph) from the district court in Philadelphia were on that panel. They all agreed.

And it is my recollection that seven other courts of appeals had decided the case the same way. More than 20 court of appeals -- that issue the same way. More than 20 court of appeals judges, including judges appointed by all recent presidents, have reached that decision.

And I think when you look at the law and the facts of the case, it becomes clear why there is so much unanimity on the question.

ALITO: Whether one likes the test or not, the test that we on the lower courts have to apply in this area is the congruence and proportionality test from City of Boerne. And therefore what we had to do was to see whether there was a record of discrimination relating to the particular provision that was at issue in Chittister, which had to do with leave for personal illness.

So there would have to be some evidence that state employers had given more leave for personal illness to men than women, or more leave for personal illness to women than men. And there was no evidence whatsoever on this issue, and that's why all of these courts of appeals reached the conclusion that they did in Chittister.

HATCH: When somebody takes an unfair crack at me, I can come back at them as a member of the United States Senate. But because you're a judge and not a politician, you really don't have the opportunity, really, to address fully these misrepresentations of your views. And there have been plenty of them in this process that you've had to undergo.

So I wanted to give you some opportunity to here. For example, one liberal group sent an e-mail around just yesterday that claimed you were not responsive to a question about whether the president can immunize executive branch officials who directly violate the law.

Now, is it an accurate representation of your views to suggest that you argued that executive branch officials should be fully immunized for their violations of the law?

ALITO: No, it's not a correct expression of my views. The president, like everybody else, has to follow the Constitution and the law. He has to follow the Constitution at all times. And he has to follow all the laws that are enacted consistent with the Constitution. That's clear.

Now in the Mitchell v. Forsyth case which they may be referring to, I was simply saying that a certain argument relating to immunity from civil damages was an argument that had been made before and it was an argument that was being requested by our client in the case, who was being sued in his individual capacity.

ALITO: And I recommended that we not make the argument, but said, "I don't dispute this argument." And that's all that was involved there.

HATCH: Let me say just this: I want to allow you to respond to a tactic that has been used by several of our colleagues here in these hearings.

They observed results in some past cases and then they expressed concerns that entire groups or categories of litigants might not be able to get a fair shake by you in the court.

One of them, yesterday, wondered whether the average citizen, quote, "can get a fair shake from you when the government is a party," end quote.

Another did the same thing this morning. It's one thing to express disagreement with your decisions. And, of course, as I said before, to look only at results and ignore the facts and the law is fundamentally misguided. And it's a misleading way of evaluating judicial decisions.

But let's be clear what is being floating around here with this type of tactic.

Those who say, "Because you ruled this way in the past, litigants cannot get a fair shake in the future," are saying, Judge, that you are biased, that you prejudge these cases, that you are less than fair and impartial -- something that virtually everybody who knows you, including all of the people who testified before the American Bar Association, say is false -- that you prejudge these cases, you're less than fair and impartial.

You know, that's a very serious charge even if it is cloaked in suggestions and innuendo.

Judge, you previously mentioned your oath of office, an oath before God to do equal justice to everyone without regard to who the parties are.

How do you react to this suggestion that the way you've ruled in the past shows or even suggests that you're biased and that entire categories of litigants may not get a fair shake before you?

ALITO: Well, I reject that.

ALITO: I believe very strongly in treating everybody who comes before me absolutely equal.

I take that oath very seriously. And I have tried my very best to abide by that during my 15 years on the bench.

And I don't think a judge should be keeping a scorecard about how many times the judge votes for one category of litigant versus another in particular types of cases. That would be wrong. We're supposed to do justice on an individual basis in the cases that come before us.

But I think that if anybody looks at the cases that I voted on in any of the categories of cases that have been cited, they will see that there are decisions on both sides. In every type of employment discrimination case, for example, there are decisions on both sides.

HATCH: But most employment discrimination cases really are decided at the lower level.

ALITO: Most of them are.

HATCH: And when they get up to your level it's generally decided on technical or a procedural basis. Am I wrong in that?

ALITO: No, that's correct, Senator.

HATCH: And sometimes you have to uphold the law even though you may be uncomfortable with the law yourself.

ALITO: We have to decide the cases on the facts that are in the record and the law that applies.

HATCH: Well, that's right.

Well, let me just ask you about a few of your cases. Because, you know, it's easy to cherry-pick these cases and find a sentence here you don't like and a sentence there you don't like and criticize you, in the process, as though you're not being fair, when, in fact, everybody who knows you knows your impeccable reputation for fairness, dignity, decency and honor, and capacity.

And that's why you got the highest rating from the American Bar Association. And deserve it. And you've twice got that. And I know how tough they can be.

But let me just give you a couple illustrations.

HATCH: Zubi v. AT&T. You were the lone dissenter in that case. What did you dissent from?

ALITO: I dissented from a majority decision that held that Mr. Zubi, who was claiming racial discrimination, would not have his day in court because of the statute.

HATCH: You would have given in his day in court, right?

ALITO: I would have.

HATCH: If it had been up to you?

ALITO: Yes.

HATCH: All right, how about U.S. v. Kithcart? I don't expect you to remember all these cases -- and if you don't, just raise your hand and I'll try and recite them.

But this was a Fourth Amendment case. You held that the Fourth Amendment does not allow police to target drivers because of the color of their skin; is that right?

ALITO: That's right. That was essentially a case of racial profiling. And I wrote an opinion holding that that was a violation of the Fourth Amendment.

HATCH: That was even after a police officer received a report that two black men in a black sports car had committed three robberies. And she pulled over the first black man in a black sports car she saw. But you ruled for the defendant and against racial profiling in that case.

ALITO: That's correct, Senator.

HATCH: OK. And Thomas v. Commissioner of Social Security -- just to mention a few of these cases that show that you're going to do what's right, regardless. And sometimes in these employment cases and even other cases, when they get up on appeal, they're fairly technical in nature and you have to do what is right under the law.

But in Thomas v. Commissioner of Social Security -- do you recall that case?

ALITO: I do.

HATCH: What'd you do there?

ALITO: That was a case where I think the Supreme Court thought that my opinion had gone too far in favor of the little guy who was involved there.

HATCH: This was a woman with disabilities, right?

ALITO: That's right. A woman who was trying to get...

HATCH: And she sought Social Security benefits.

ALITO: ... Social Security disability benefits. And in order to be eligible for those, she had to be unable to perform any job that existed in substantial numbers in the national economy.

HATCH: She had a job as an elevator operator if I recall correctly.

ALITO: That's right.

As the case was presented to us, the only job that she could perform was her past job, which was as an elevator operator.

And what I said was that you can't deny somebody Social Security benefits because the person is able to do a job that no longer exists in any substantial numbers in the national economy. You can't deny benefits based on a hypothetical job. It has to be based on a real job.

And the Supreme Court didn't see it that way, but it seemed to me that the way that we ruled was consistent with what I thought about it.

HATCH: So in other words, although you stood up for the person seeking rights here, the Supreme Court overruled you.

ALITO: That's right.

HATCH: Oh, my goodness.

In the landmark case Fatin v. INS, this involved Iranian women who refused to conform to their government's gender-specific laws and social norms; whether or not they should be granted asylum in America.

How did you rule in that case?

ALITO: I think that was one of the first cases in the federal courts to hold that requiring a woman to be returned to a country where she would have to wear a veil and conform to other practices like that would amount to persecution if that was deeply offensive to her, and that subjecting a woman to persecution in Iran or any other country to which she would be returned based on feminism would be persecution on the basis of political opinion.

HATCH: Well, I've got another nine or 10 cases and perhaps even more that I could go through. But the point is that whenever they deserve to win, they win, regardless of whether they are rich or poor, whether they're powerful or not. You have basically upheld the law in these cases, is that correct?

ALITO: That's what I have tried to do.

HATCH: And where you've been in dissent, you've tried to do it to the best of your abilities.

ALITO: That's right, Senator.

HATCH: OK.

Let me just mention one other thing. This business of the Vanguard, when you signed that back in 1990, 12 years before the matter for which you are being criticized -- not by anybody who has any ethical, professorial, or other knowledge, not by the American Bar Association, not by the vast majority of lawyers to look at these matters -- that particular statement said will you, during your, quote, "initial service," unquote. It seems to me those are important words.

Now, you haven't tried to hide behind that. You've just honestly explained that basically you made a mistake, which really wasn't a mistake according to all the ethics people and according to the American Bar Association.

And now, instead of the original accusation or the original implication, you're being accused of not being forthcoming because of that our original statement and your application to the committee questionnaire.

HATCH: But the fact of the matter is that, quote, "initial service," doesn't mean 12 years away, does it, when there's no chance in the world that you could ever receive any monetary benefit from Vanguard?

ALITO: Well, I don't think initial service means 12 years away.

HATCH: Neither do I and neither does anybody who cares about justice and what's right in this matter.

So to blow that out of proportion like your adversaries have done is really pretty offensive. I could go on and on, and maybe be stronger on that, but the fact of the matter is I just wanted to make that, "initial service," unquote, pretty clear.

Now, let me just say that sometimes I just can't make sense of what some of your critics are saying. On the one hand, they want to portray you as some sort of a robotic patsy for big government who does not think for himself.

Yesterday, one of my Democratic colleagues even suggested that the Bush administration was trying to manipulate you to give responses favorable to them in this hearing.

Now, you quite rightly said, and I think you were fairly restrained about saying it, that you have been a judge for 15 years and are quite capable of thinking for yourself.

On the other hand, your critics then turn it around and attack you for supposedly dissenting too much, as if you should actually stop doing all that thinking for yourself and just fall in line with the majority in all of your cases.

Now, Judge, I know that appeals court judges, that the appeals court themselves are collegial bodies, but how do you view dissenting from your colleagues?

How you decide when to do it? How did you know how often you dissent from your court, or do you know often you dissent in your court and whether it's out of step with your colleagues?

HATCH: Could you give us some answers there?

ALITO: Yes.

I think that it's important for a multi-member court to issue a judgment and to speak clearly to the lower courts and the parties.

And so when I've been in a position where taking an independent position would result in the absence of a judgment, I have gone out of my way to make sure that there was a judgment, that there was a majority opinion.

And an example of that is the Rappa case, where we were really divided three ways and my position was close to Judge Becker's opinion. And Judge Becker had the opinion writing assignment and I issued an opinion saying, "I don't completely agree with the way Judge Becker analyzed this issue, I would analyze it differently, but I'm joining his opinion so that there is a majority opinion, so that there is a clear statement of the law for the guidance of the parties."

I think that's the first principle.

The second is that judges should be respectful of each other's views, and I have tried never to write a dissenting opinion or respond in a majority opinion to a dissenting opinion in a way that was not completely respectful of the views of the other members of the court.

It's useful to dissent if there's a chance that the case may go en banc, and that's happened in a number of cases where I've dissented. It's useful to dissent if there is a chance that the case may go to the Supreme Court and so that the Supreme Court will have the benefit of a different expression of views. And there have been cases...

HATCH: Would it surprise you to know that you've dissented only 79 times in nearly 5,000 cases in which you've participated?

That comes out to about 1.6 percent, which is considerably lower than most others who have been on the appellate courts.

And I would observe that the Washington Post concluded in an editorial that your dissenting opinions, quote, "are the work of a serious and scholarly judge whose arguments deserve respect," unquote.

I certainly agree wholeheartedly with that assessment.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Hatch.

The transcript continues in Part II.

Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved


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