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

Part II of III

The transcript picks up with Sen. Kennedy's testimony. To return to Part I, click here.

Senator Kennedy?

KENNEDY: Thank you very much, Mr. Chairman.

KENNEDY: Judge Alito, I hadn't planned to get into Vanguard on this particular round. But I chaired those hearings when you were promoted to the Circuit Court. And I was also the one that filed those questions which you responded to.

And you responded under oath, when you promised the committee that you would recuse yourself on Vanguard issues.

Now I'm just hearing from you that you believe that that pledge was somehow a condition. Unlike my friend -- and he is my friend -- from Iowa, who says, "Well, a pledge is just a pledge; it's like any political pledge around here; it's a political promise and doesn't carry much weight," that's not my opinion, and I don't think it is the opinion of most of the members of this body.

You made a pledge to the Senate -- effectively, to the American people -- that you were going to recuse yourself. Now you say, well, it was just for any initial time, and I think 12 years is more than I really had in mind -- you just qualified your answer.

How long, when you made that pledge and that promise to the committee, how long did you intend to keep it?

ALITO: Well, Senator...

KENNEDY: And when that time was up, did you ever imagine that you would get back to the committee and said, "I believe my time is up on Vanguard"?

ALITO: Well, Senator, the nature of the question that I was responding to did not figure in the way the Monga case was handled. And I thought I made that clear yesterday.

I was following, throughout my time on the bench, the practice of going beyond the code. And had I focused on this issue when the matter came before me, I would have recused myself at this time as I later did.

But in answer to Senator Hatch's question, looking at that question today and looking at the answer, the question was: What you intend to do during your initial period of service? And I think that that's what the answer has to be read as responding to.

But just to be clear, I'm not saying that that's why this played out the way it did. I'm just saying that's how I think the question and the answer -- that's how I think the question and any response to the answer by any nominee needs to be interpreted.

KENNEDY: Well, if there's someone that can just understand what you just told us, I'd be interested in it, because I don't.

HATCH: Well, I'll be glad to explain it.

KENNEDY: Well, if...

(LAUGHTER)

Mr. Chairman.

You, in response to Senator Hatch, did not believe that you are bound by the promise, because you said in your mind that you felt that it was just for the initial aspects of it.

KENNEDY: That's another issue, because initially was meant to include the investments that you had at that particular time. You might have those investments and then discard an investment and, therefore, no longer have a conflict. That is what the asker of the question had intended.

But you've added another wrinkle to it. You've just indicated that when you made a pledge to the committee that you were going to recuse yourself, that you thought that at sometime you were going to be released.

And I'd just like to know how long that was going to be. Was that going to be two years, was it going to be three years, was it going to be five years? When did you feel that you were going to be released, if we followed your interpretation?

ALITO: Senator, I did not rely on that time limitation in relation to what I did in the Monga case. And I hope I've made that clear. If I didn't in my previous answer, I do want to make it clear. I did not rely on that in my handling of the Monga case.

Looking at the question now, where it says initial period of service, I would say that 12 years later is not the initial period of service. But that was...

KENNEDY: When did it stop then? When did you think that your pledge to the committee halted, after how many years? Six months? What did you intend at the time that you made the pledge? What was in your mind at that time? I'm interested in what's in your mind at this time, but what was in your mind at that time?

ALITO: I can't specifically recall what was in my mind at that time, but I'll tell you what I'm pretty sure I had in mind. I was not a judge, and I was being considered for a judicial position.

And what I was trying to express was basically the policy that I followed during all my years on the bench, which is to bend over backwards to make sure that I didn't do anything that came close to violating the code of conduct or give anybody the impression that I was doing anything that was improper.

KENNEDY: The last question on this is how long then -- when you made the promise under oath to the committee that you were going to recuse yourself -- and you understand that now to be in your own interpretation to be just the initial time -- how long did you think that that pledge and promise lasted?

ALITO: Senator, as I said, I can't tell you 15 years later exactly what I thought when I read that question.

It refers to the initial period of service. And looking at it now, it doesn't seem to me that 12 years later is the initial period of service.

KENNEDY: My question to you, which I guess I'm not going to get an answer to, is when did it? Is 10 years? How about three years? Is that?

ALITO: I do not know exactly what the time limitation would be, but 12 years does seem to me to be not the initial period.

KENNEDY: We'll come back.

I just want to mention in fairness to my friend and colleague -- both of my friends, Senator Hatch and Senator Durbin, and to Senator Hatch's quoting of Senator Durbin that you responded on the question of the Roe v. Wade when you were in the circuit court, I have here the record that said of the hearings of Roberts.

And the question was asked by Senator Specter to Judge Roberts during the time of his consideration for the Supreme Court. Senator Durbin can clarify the record, but I wanted that to be clarified so that there wasn't the confusion about it.

In the time that I have, Judge Alito, I listened carefully to responses you gave to Senator Leahy about the CAP organization at Princeton. And I listened to other responses you gave to our colleagues and again to Senator Durbin earlier today.

KENNEDY: But I have just some questions on this to, at least, try to finalize, at least in my mind. And it might be useful in the committee's mind, as well.

You had indicated in your '85 job application that you were a member of the Federalist Society for Law and Public Policy and a regular participant in its luncheon and a member of the Concerned Alumni at Princeton University, a conservative alumni group.

And you said yesterday that you wracked your memory about the issue and really had no specific recollection of the organization; is that correct?

ALITO: I have no specific recollection of joining the organization.

KENNEDY: And you also said yesterday and today to Senator Durbin that you very likely joined CAP because of your concern over the ROTC program being kicked off campus; is that correct?

ALITO: Well, what I said specifically was that I wracked my memory as to why I might have joined. And the issue that had bothered me for a period of time as an undergraduate and in the '80s, around the time when I made the statement, was the issue of ROTC. This was the issue about the administration of Princeton that bothered me.

And I had a high regard for Princeton in many respects, in general, and have participated in a lot of their activities. But this issue bothered me a great deal at various times. And that's what I said.

KENNEDY: And, finally, you said yesterday that you very likely joined CAP around 1985, just before you were applying to the high- level job in the Justice Department under President Ronald Reagan. I think that's correct.

ALITO: Senator, what I specifically said, as I recall, was, if I had done anything substantial in relation to this group, including renewing my membership, I would remember that. And I do not remember that.

KENNEDY: So, I want to ask a few things that I hope can clear this up.

You have no memory of being a member. You graduated from Princeton in 1972, the same year CAP was founded.

KENNEDY: You called CAP a "conservative alumni group."

It also published a publication called Prospect, which includes articles by CAP members about the policies that the organization promoted. You're familiar with that?

ALITO: I don't recall seeing the magazine. I might have seen...

KENNEDY: Did you know that they had a magazine?

ALITO: I've learned of that in recent weeks.

KENNEDY: So a 1983 Prospect essay titled "In Defense of Elitism," stated, quote, "People nowadays just don't seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children."

Did you read that article?

FEINSTEIN: Finish the last line.

KENNEDY: Finish the last line -- is, "and homosexuals are...

FEINSTEIN: No, "And now here come women."

KENNEDY: If the senator will let me just...

FEINSTEIN: Yes, I will...

(LAUGHTER)

KENNEDY: Can I get two more minutes from my friend from...

(LAUGHTER)

Just to continue along.

I apologize, Judge.

Did you read this article?

ALITO: I feel confident that I didn't. I'm not familiar with the article, and I don't know the context in which those things were said. But they are antithetical...

KENNEDY: Well, could you think of any context that they could be...

ALITO: Hard to imagine.

If that's what anybody was endorsing, I disagree with all of that. I would never endorse it. I never have endorsed it.

Had I thought that that's what this organization stood for I would never associate myself with it in any way.

KENNEDY: The June '84 edition of Prospect magazine contains a short article on AIDS. I know that we've come a long way since then in our understanding of the disease, but even for that time the insensitivity of statements in this article are breathtaking.

It announces that a team of doctors has found the AIDS virus in the rhesus monkeys was similar to the virus occurring in human beings.

KENNEDY: And the article then goes on with this terrible statement: "Now that the scientists must find humans, or rather homosexuals, to submit themselves to experimental treatment. Perhaps Princeton's Gay Alliance may want to hold an election."

You didn't read that article?

ALITO: I feel confident that I didn't, Senator, because I would not have anything to do with statements of that nature.

KENNEDY: In 1973, a year after you graduated, and during your first year at Yale Law School, former Senator Bill Bradley very publicly disassociated himself with CAP because of its right-wing views and unsupported allegations about the university. His letter of resignation was published in The Prospect; garnered much attention on campus and among the alumni.

Were you aware of that at the time that you listed the organization in your application?

ALITO: I don't think I was aware of that until recent weeks when I was informed of it.

KENNEDY: And in 1974, an alumni panel including now-Senator Frist unanimously concluded that CAP had presented a distorted, narrow, hostile view of the university.

Were you aware of that at the time of the job application?

ALITO: I was not aware of that until very recently.

KENNEDY: In 1980, the New York Times article about the coeducation of Princeton, CAP is described as an organization against the admittance of women. In 1980, you were working as an assistant U.S. attorney in Trenton, New Jersey.

KENNEDY: Did you read the New York Times? Did you see this article?

ALITO: I don't believe that I saw the article.

KENNEDY: And did you read a letter from CAP mailed in 1984 -- this is the year before you put CAP on your application -- to every living alumni -- to every living alumni, so I assume you received it -- which declared: "Princeton is no longer the university you knew it to be."

As evidence, among other reasons, it cited the fact that admission rates for African-Americans and Hispanics were on the rise, while those of alumni children were failing and Princeton's president at a time urged that the then all-male eating clubs to admit females.

And in December 1984, President William Bowen responded by sending his own letter. This is the president of Princeton responded by sending his own letter to all of the alumni in which he called CAP's letter "callous and outrageous."

This letter was the subject of a January 1985 Wall Street Journal editorial congratulating President Bowen for engaging his critics in a free and open debate.

This would be right about the time that you told Senator Kyl you probably joined the organization.

Did you receive the Bowen letter or did you read the Wall Street Journal, which was pretty familiar reading for certainly a lot of people that were in the Reagan administration?

ALITO: Senator, I've testified to everything that I can recall relating to this, and I do not recall knowing any of these things about the organization. And many of the things that you've mentioned are things that I have always stood against.

In your description of the letter that prompted President Bowen's letter, there's talk about returning the Princeton that used to be. There's talk about eating clubs, about all-male eating clubs. There's talk about the admission of alumni children. There's opposition to opening up the admissions process. None of that is something that I would identify with.

I was not the son of an alumnus. I was not a member of an eating club. I was not a member of an eating facility that was selective. I was not a member of an all-male eating facility. And I would not have identified with any of that.

If I had received any information at any point regarding any of the matters that you have referred to in relation to this organization, I would never have had anything to do with it.

KENNEDY: You think these are conservative views?

ALITO: Senator, whatever I knew about this organization in 1985, I identified as conservative. I don't identify those views as conservative.

What I do recall as an issue that bothered me in relation to the Princeton administration as an undergraduate and continuing into the 1980s was their treatment of the ROTC unit and their general attitude toward the military, which they did not treat with the respect that I thought was deserving. The idea of that it was beneath Princeton to have an ROTC unit on campus was an offensive idea to me.

KENNEDY: Just moving on, you mentioned -- and I only have a few minutes left -- you joined CAP because of your concern about keeping ROTC on campus.

ROTC was a fairly contentious issue on Princeton campus in the early 1970s. The program was slated to be terminated in 1970, when you were an undergraduate. By 1973, one year after you graduated, ROTC had returned to campus and was no longer a source of debate.

And from what I can tell, by 1985, it was basically a dead issue. In fact, my staff reviewed the editions of Prospects from 1983 to 1985 and can only find one mention of ROTC. And it appears in a 1985 issue released for homecoming that year that says: ROTC is popular once again. Here's the Prospect, 1985: ROTC is popular again. This is just about the time that you were submitting this organization in your job application.

ALITO: Senator, if I...

KENNEDY: So...

ALITO: I'm sorry.

KENNEDY: But the -- briefly, please.

ALITO: It's my recollection that this was a continuing source of controversy. There were people on the campus -- members of the faculty, as I recall -- who wanted the unit removed from the campus.

There was certainly controversy about whether students could get credit for courses, which I believe was a military requirement for the maintenance of the unit.

There was controversy, as I recall, about the status of the instructors; whether they could be given any kind of a status in relation to the faculty.

I don't know the exact dates, but it's my recollection that this was a continuing source of controversy.

KENNEDY: Well, Mr. Chairman, my time is running out.

I had wanted to just wind up on a few more brief questions on this.

But I have to say that Judge Alito -- that his explanations about the membership in this, sort of, radical group, and why you listed it on your job application, are extremely troubling. And, in fact, I don't think that they add up.

Last month, I sent a letter to Senator Specter asking a number of questions about your membership in CAP. And I asked Senator Specter make a formal committee request for the documents in the possession of the Library of Congress as part of the William Rusher papers. Mr. Rusher was the publisher of the National Review, was an active founder and leader of CAP.

Do you have any hesitancy or reason for us not to look at those documents?

ALITO: They're not my documents, Senator, and I have no opinion about it whatsoever.

KENNEDY: Do you think they'd be helpful?

ALITO: Senator, I don't believe I had any active involvement with this group.

I've wracked my memory and I can't recall anything. And if I had been involved actively in any way in the group, I'm sure that I would remember that.

KENNEDY: Well, Mr. Chairman, if I could have your attention, I think we ought to vote on issuing a subpoena to the custodian of those CAP records.

KENNEDY: And I want to do that at an appropriate time. I'd move that the committee go into executive session for the purpose of voting on the issuancing of -- the sole purpose for issuing the subpoena of those records.

SPECTER: Well, we'll consider that, Senator Kennedy. There are many, many requests which are coming to me and many quarters. And, quite candidly, I view the request -- if it's really a matter of importance, you and I see each other all the time and you have never mentioned it to me.

And I do not ascribe a great deal of weight -- we actually didn't get a letter, but...

KENNEDY: You did get a letter. Are you saying...

SPECTER: Well, now wait a minute; you don't know what I got. I'm about to...

KENNEDY: Yes I do, Senator, since I sent it.

SPECTER: Well, the sender does not necessarily know what the recipient gets, Senator Kennedy. You are not in a position to say what I receive.

If you'll bear with me for one minute.

KENNEDY: But I am in a position to say what I sent to you on December 22.

SPECTER: You're in a position to tell me what you sent.

KENNEDY: I renew my request, Senator. And if I'm going to be denied, then I'd appeal the decision of the chair.

I think we are entitled to this information. It deals with the fundamental issues of equality and discrimination.

This nominee has indicated he has no objection to seeing us these issues. We've gone over the questions and we are entitled to get that kind of information. And if you're going to rule it out of order, I want to have a vote on that here on our committee.

SPECTER: Well, don't be premature, Senator Kennedy. I'm not about to make a ruling on this state of the record.

I hope you won't mind if I consider it, and I hope you won't mind if I give you the specifics that there was no letter which I received.

I take umbrage at your telling me what I received. I don't mind your telling me what you mailed. But there's a big difference between what's mailed and what's received. And you know that.

We're going to move on now.

Senator Grassley...

KENNEDY: Mr. Chairman, I'd appeal the ruling of the chair on this.

SPECTER: There has been no ruling of the chair, Senator Kennedy.

KENNEDY: Well what is the -- my request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress -- that purpose and that purpose only.

And if I'm going to be denied that, I'd want to give notice to the chair that you're going to hear it again and again and again and we're going to have votes of this committee again and again and again until we have a resolution.

I think it's...

SPECTER: Well, Senator Kennedy, I'm not concerned about your threats to have votes again, again and again. And I'm the chairman of this committee and I have heard your request and I will consider it.

And I'm not going to have you run this committee and decide when we're going to go into executive session.

We are in the middle of a round of hearings. This is the first time you have personally called it to my attention, and this is the first time that I have focused on it. And I will consider in due course.

Now we'll move to Senator Grassley for 20 minutes.

GRASSLEY: Well, we have gone over the same ground many times. I suppose maybe to some extent both sides are guilty of that. But we have an old saying in the Midwest about if a horse is dead, quit beating it.

GRASSLEY: And I think several horses have been beaten to death, particularly on the other side. And you've been very consistent in your answers, and I thank you. And I think that that speaks to the intellectual honesty of your positions.

It's kind of like we're in the fourth quarter of a football game and you're the quarterback and your team is way ahead here in the fourth quarter and opponents are very desperate, trying to sack you and aren't doing a very good job of it. And they haven't hit you all day, now for two days.

And you're going to keep getting these last-minute Hail Marys thrown at you. So just bear with us.

I want to compliment you, first of all, before I ask some questions, and I just did, to some extent, about the consistency of your testimony, but I think it's been good. I think under very difficult circumstances you've handled yourself very well -- being responsive, forthright, thoughtful.

I sense in you a person that's very sincere. And, obviously, I don't know you except this appearance here and the small period of time we spent in the office. Seems like you have modesty, that's a breath of fresh air, demonstrating a command of and very much a respect for the law and the Constitution, of course.

GRASSLEY: And this is all stuff that we ought to be looking for in the tradition of Alexander Hamilton saying the role of the court -- or the Senate is to make sure that only competent people get on the court and that political hacks do not get on the court.

You are surely no political hack, and you are very competent. And that's been demonstrated with your fair and open-minded approach to your being a judicial person.

It is too bad that we are getting this misconstruing of your record or the answers, the claim that you have not written a single opinion on the merits in favor of a person of color alleging race discrimination on the job in your 15 years on the bench.

I have looked at a lot of opinions you have given, and it is just not true. Your record shows that you ruled in favor minorities making allegations of racial discrimination in employment not once, but in a number of cases.

The claim that you acted unethically in the Vanguard case is just not true. You did nothing improper and actually went beyond the rule to ensure compliance.

The claim that you would support an unchecked executive is just not true. Your record shows that you have repeatedly ruled against the government and that you have told us no one, including the president, is above the law.

The claim that you have ruled in a vast majority of time against the claims of individual citizens in favor of the government and large corporations is just not true. The reality, as I see it, that you have found in favor of the little guy in numerous cases but because of who was right and who was wrong, not just because you have a bias one way or the other.

GRASSLEY: Your critics are, I think, grasping at any straw to tarnish your record, and that's unfortunate.

Judge Alito, in your opening statement you said -- and I hope I quote you accurately -- "No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law."

You didn't go into detail about what you meant. I think it's quite clear above the law. But give us that diverse opinion, above the law versus beneath the law.

ALITO: Every person has equal rights under the law in this country, and that involves includes people have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens.

Everybody is entitled to be treated equally under the law. And I think that's one of the greatest things about our country and about our legal system.

GRASSLEY: You've been criticized for being hostile to voting rights based upon a statement that you wrote 20 years ago when you were applying for a job with the Justice Department during the Reagan years.

In fact, yesterday some of my colleagues repeated that assertion, but it's apparent to me that it's off the mark.

Specifically, in your 1985 statement you wrote that he became interested in constitutional law and went to law school in part because you had some disagreements over Warren court decisions, including some regarding reapportionment. Of course, that's understandable because the Warren court had handed down very many decisions on reapportionment, and they had been criticized as unworkable, and that in fact the Supreme Court backed away from some.

So there was disagreement. There was debate over those issues at that time. Probably a lot less today, but still recently there's going to be a case going to the court.

Some have questioned your 1985 statement regarding the electoral reapportionment, that is how districts are drawn. They suggested that you're hostile to the principle of one person, one vote.

Clarify for me, nowhere in your '85 statement did I find that you wrote that you ever disagreed with the principle of one person, one vote. Did you?

ALITO: I never disagreed with that principle, Senator. What I disagreed with when I was in college was the application of the principle in some of -- the elaboration of the principle in some of the late Warren court decisions.

And this grew out of my father's work with the New Jersey legislature. He had been the secretary to the state constitutional convention of 1966, which redrew the provisions of the state constitution relating to the composition of the legislature in an effort to bring it into compliance with the one person, one vote standard.

ALITO: These provisions, however, because they tried to respect county and municipal lines, as I recall, resulted in population deviations of under 10 percent, but those deviations were much higher than the ones that the Supreme Court said in the late decisions that I'm talking about would be tolerated regarding congressional districts.

There was a belief that that principle would be applied across the board, both to congressional districts and to legislative districts, and that would have wiped out the plan that had been adopted.

And I was quite familiar with all of this. And it seemed to me an instance of taking a good principle, which is one person, one vote, and taking it to extremes, requiring that districts be exactly equal in population, which did not seem to me to be a sensible idea.

GRASSLEY: Isn't it true that the words "one person, one vote" weren't even in your statement?

ALITO: Those words are not in my statement.

(CROSSTALK)

ALITO: ... Senator, that this issue of how nearly exact the districts had to be a was an issue that was working its way to the Supreme Court -- maybe it had actually been there; I've forgotten the exact chronology -- at the time of the 1985 statement in Karcher v. Daggett, which involved the New Jersey congressional districting plan.

GRASSLEY: Well, just to make sure that there's no lingering confusion, then, let me ask you straight out: Do you believe in the principle of one person, one vote?

ALITO: I do. I think it's a fundamental part of our constitutional law.

GRASSLEY: I find it curious that the same people who are questioning your integrity are either asserting or implying that you took a position against the principle of one person, one vote, when it is demonstrably false that you ever did.

GRASSLEY: Further, on another point, some have suggested that you're hostile to women and minorities. Obviously, I don't think that's the case. I think you've demonstrated that sincerity in just very recent statements today.

Now, in the Washington Post article, Alberto Rivas, a criminal defense lawyer and a Democrat, said you, quote, "took steps to diversify an office" -- this was when you were U.S. attorney -- "You took steps to diversify an office that had a reputation as something of a white boys' club."

Rivas said that when you hired him at the U.S. Attorney's Office in New Jersey, he was the only Latino lawyer in the office, and by the time you left that office, Rivas said there was four Latino lawyers, as well as African-American lawyers.

Your commitment also included advancing women attorneys and promoting them into senior positions during your tenure as U.S. attorney.

And I understand that when you started in that office, only two of the 15 divisional leadership attorneys, chiefs or deputy chiefs or attorneys or in charge, were women. And two years later you had more than doubled that number. And five of the 17 divisional leadership attorneys were women.

Now, on the federal bench, you've hired many women and minorities to serve as law clerks.

GRASSLEY: And you had a discussion with Senator Brownback earlier, mentioning some very complimentary things that Cathy Fleming, your former deputy chief and acting chief of special prosecution units, in New Jersey office, and David Walker, a former lawyer in that office, had to say about you and your treatment of women and minorities.

They both, being lifelong Democrats, vouched in those statements for your qualities as a judge and your respect for individual rights.

And, Mr. Chairman, if these letters -- and they may have already been put in the record, but if they aren't in the record, I'd like to have those put in the record.

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

GRASSLEY: Several of your dissents have been referred to today -- or not -- in the last two days. And so I wanted to comment on the suggestion that you're way out of the mainstream because you've written a lot of dissenting opinions.

I don't find that you've written so many as a percentage of your total thing. But whatever reason you did it, you did it with good reason.

But judges disagree all the time, and that's to be expected. And, obviously, there's nothing wrong with that. And, in fact, the Supreme Court has agreed with your dissents on several occasions, I recall, from reading a synopsis of your opinions.

And the reality is, as I see it, you don't disagree with majority opinions more frequently than most federal appeals judges do in similar cases. And of more than 4,800 cases -- and that we got from the Washington Post -- but of more than 4,800 cases that you decided during your tenure on the 3rd Circuit, you dissented only in 79 cases, which would only be one in six-tenths percent of all those cases.

So, you know, I don't think that there's anything very extraordinary about the number of dissents or the dissents, particularly when the Supreme Court has agreed with your opinion in reversing the 3rd Circuit.

I'd like to go to the issue of some historical basis for our constitutional law.

GRASSLEY: The role of historical precedent in constitutional laws I find very interesting.

For example, qui tam lawsuits have been a feature of Anglo- American law since the Middle Ages and have been a common feature of federal statutory law even since the first Congress, yet their constitutionality has never been clearly adjudicated by the Supreme Court.

What role does long-standing historical practice play in assessing the constitutionality of a government act or practice?

ALITO: Well, it can be very relevant in many instances.

One place where this has come up is when a statute was passed by the first Congress, and this has happened in a number of occasions. The first Congress, which was responsible for the Bill of Rights, passed a number of statutes relating to provisions of the Bill of Rights, and the Supreme Court has often looked to those and said, "This is the same Congress that proposed the Bill of Rights and they did this in enacting a statute so that gives us a good indication of what they had in mind."

And when there has been a legal practice that predated the Constitution, then that certainly is relevant in considering its constitutionality.

GRASSLEY: I'd like to have you think about legislative history and how you might use it or how often you might use it, or maybe if you got a rough quantifiable answer, how often you might use it.

The Supreme Court, I think, has quite often stated legislative history of a particular bill would be critical in their interpretation of it. What's your position with respect to legislative history? How important is it to you? And how have you utilized history in interpreting statutes?

ALITO: I have often looked to legislative history in the cases that I have written concerning statutory interpretation. I think if anybody looks at those opinions they will see that.

When I interpret a statute, I do begin with the text of the statute. I think that certainly is the clearest indication of what Congress, as a whole, had in mind in passing the statute.

And sometimes, the language of the statute is dispositive, and is really -- the decision can be made based on the language of the statute itself.

But when there's an ambiguity in the statute, I think it's entirely legitimate to look to legislative history. As I said, I have often done that. I think it needs to be done with caution: Just because one member of Congress said something on the floor, obviously that does not necessarily reflect the view of the majority who voted for the legislation.

It has to be done carefully, and I think with a realistic evaluation of the legislative process. But I'm not one of the judges who thinks that you should never look to legislative history. I think it has its place.

GRASSLEY: Are you familiar with the legal arguments that some opponents of the False Claims Act have made to the effect that its qui tam provisions are unconstitutional under Articles II and III? And if you do, do you have any opinion on those arguments that are used, without prejudicing any review of it you might give?

ALITO: Well, the issue has not come up before me. I have a little bit of familiarity with the arguments.

And I think that all I can say on the question is that the qui tam statute is of historical origin, as you pointed out. We have seen what it has produced in terms of tangible results in the cases that have been brought under the statute in recent years.

ALITO: And should an issue relating to its constitutionality come before me, either on the 3rd Circuit or the Supreme Court, then I would have to follow that whole judicial process that I've described and evaluate the arguments and certainly study the question much more thoroughly than I have done up to this point.

GRASSLEY: You may have just answered this question, but I'd like to get it expressly on the record: Have you ever written or spoken publicly about the issue of the constitutionality of qui tam or any other provision of False Claims Act? And if so, the circumstances and the context?

ALITO: I'm quite sure I've never written or spoken about its constitutionality.

GRASSLEY: Do you feel that you have any bias against False Claims Act or Whistleblower Protection Act that would impact the ability of you to fairly decide cases involving those issues?

ALITO: I certainly don't, Senator.

GRASSLEY: I'd like to ask you about the opinion you authored in Mistic (ph).

As author of the legislation that we call the False Claims Act, it's returned billions of dollars to the federal government and has become a very effective tool in combating fraud against the American taxpayers. So I follow court cases on this as much as I can.

The False Claims Act contains a provision that jurisdictionally bars lawsuits based on public disclosure, including such things as administrative reports and investigations.

The purpose of this provision is to prevent an individual who has read about a description of a fraud in a newspaper report, public document, government report, from simply taking that material and using it as a basis for a case.

In Mistic (ph), the qui tam relator had made a FOIA request and utilized some of the documents he received in response to FOIA in filing that qui tam case.

GRASSLEY: Your opinion, you determined that the qui tam relator had based his False Claims Act lawsuit on public disclosure made in an administrative report or investigation.

To come to that conclusion, you had to equate that the qui tam relator, who was acting on behalf of the government, as the public. But I think it's clear that Congress did not equate such qui tam relators with the public when it wrote the public disclosure bar provision. That's because, if Congress had done so, then everything qui tam relators know is known to the public, which doesn't make any sense.

So because my time's run out, I don't want to go on with a question, but, so you see what I'm getting at? Could you react to that?

ALITO: I do. And I understand that's a very strong argument.

I remember that I found that a very difficult issue to deal with and I spent a lot of time on it. And my view of the matter elicited a strong and a very persuasive, I think, dissent by one of my colleagues.

So it's a tough issue. And if that were to come up again, I would have to really reconsider.

GRASSLEY: Just in your last sense, you gave pretty much the same answer that Judge Roberts did. He had dissented in a case too. And it kind of worries when we get two of you on the court that may have unfamiliarity with congressional intent on false claims.

Thank you very much.

SPECTER: Thank you, Senator Grassley.

That will be all. We'll recess until 2:00.

KENNEDY: Mr. Chairman?

SPECTER: Yes, Senator Kennedy?

KENNEDY: Just as a quick matter of personal privilege, I'd like to include in the record the response from your staff to me, this letter that I wrote to you on the 22nd, and also my staff response to your staff's response to the letter and include that in the record.

SPECTER: Like all requests for unanimous consent for the record, they're granted.

DURBIN: Mr. Chairman? Mr. Chairman?

SPECTER: I just want it known that we're now into the lunch hour.

But go ahead, Senator Durbin.

DURBIN: Mr. Chairman, I sent you a note, and you were kind enough to come and speak to me about it.

I just ask for two minutes time to respond to comments made by members of the committee mentioning my name after I asked questions this morning. You've asked if I would wait until Senator Coburn returned to the committee, and in deference to the respect to my colleague, I will do that.

LEAHY: Could I also, Mr. Chairman, on this...

SPECTER: I appreciate it very much waiting for Senator Coburn. I think it is a good practice, when comments are made about other members, to do it while they're here or to ask their rejoinder. And that's why, if you have something to say to Senator Coburn, I want him here. Otherwise, he'll have something to say when you're not here.

DURBIN: He did already, Mr. Chairman.

SPECTER: Now, Senator Leahy is recognized into the lunch hour.

LEAHY: Into the lunch hour.

Mr. Chairman, if I might, I came very close to objecting when Senator Coburn was speaking and referring to Senator Durbin. Senator Coburn is a new -- he's a valued member of the committee, of course, but new, and I wanted -- but I really think -- I've been here for 30 years. I've always made it a point, if I wanted to raise something, to give word to the other party.

I think it's a good way of doing it. And you have been totally fair on that.

And I would urge senators, if we're going to start quoting each other, that maybe we have a quote time or something like that. Senator Durbin's absolutely right in wanting to be able to respond to what was said.

SPECTER: Well, I think that we might agree on best practice. But when you deal with senators, my view is to give senators great latitude as what they want to undertake to do.

And if Senator Coburn wants to make a comment without Senator Durbin here, I think that's going to be his call, although my preference would be to the contrary.

But when Senator Durbin wants time to respond, I immediately sent word to him he would have the time that he requested. And then I sent for Senator Coburn. And Senator Coburn was in a meeting that he couldn't leave, but we'll get the two of you together fairly promptly.

DURBIN: Thank you.

SPECTER: Lunchtime. Now we get lunch.

(RECESS)

SPECTER: And it is now Senator Biden's turn for his second round, for 20 minutes.

Senator Biden?

BIDEN: Thank you very much, Mr. Chairman.

Judge, good to see you. As I said to you, we happened to run into each other in the hallway coming in, what I'd like to do, if I may, is go back and revisit two areas that you were questioned on yesterday, and a little bit maybe even today. I don't recall actually. I think it was yesterday.

And one is the Casey case. And I want to make sure I understand because I'm still a little bit puzzled by your reasoning.

But let me start off and make it clear, from my perspective, the abortion issue is -- I'm trying to figure out how you arrived at interpreting a justice's -- a Supreme Court justice's standard that was being applied and how it came out differently than others.

Yesterday you said, when I think it was Senator Kohl asked you, that you agreed with Justice O'Connor, quote, "that you look at the group that's affected, not the group that's unaffected."

But when you wrote your dissent, you said, and I quote, "It seems safe to assume that some percentage, despite an initial inclination not to tell their husbands, would notify their husbands without suffering substantial ill effects, acknowledging some would suffer substantial effects."

Can you tell me -- rationalize yesterday's statement and your dissent for him? Tell me -- explain it to me.

ALITO: Well, I think what you look at is the group that is required to notify. You don't look at the group that's not required to notify. So unmarried women are not examined here because the notification requirement obviously does not apply to them.

Then, my understanding of Justice O'Connor's standard, which was the "more than some women" standard -- let me put it that way, although she didn't put it quite that strongly. She said that it is insufficient that some women are inhibited from having an abortion as a result of the requirements.

So you look at the people who are affected by -- who are within the scope of the provision.

ALITO: And then you would see how many of the people within the scope of the provision would be inhibited from having an abortion as a result of what was involved.

You don't look at people who aren't regulated at all, and you don't just look at the people who would be inhibited, because both of those would not be the right thing to look at.

So let's take the case of informed consent requirement. You'd look at everybody who was required to receive the information that was within the informed consent provision and then you ask how many of the people, how many of the women who are regulated by this, would be inhibited from having an abortion as a result of the requirement.

That was my understanding and that is my understanding of what she was talking about.

BIDEN: Now, you referenced in your dissent in Casey the Thornburg case. What was the issue in Thornburg?

ALITO: Thornburg concerned...

BIDEN: Excuse me. That prompted her to come up with the statement that you referenced, which was that, you know, it doesn't have to affect everyone.

ALITO: Well, she was setting out her understanding of what the standard was, of the undue burden standard.

Now, in Thornburg, there were several provisions of a previous version of the Pennsylvania statute at issue. There was an informed consent provision, as I recall. There was a provision relating to health insurance. There was a provision relating to notification of a minor's parents. There were a number of provisions involved.

ALITO: My recollection is that when she made this statement, she was talking about the undue burden standard itself. It was an explanation of what she meant by the undue burden standard.

BIDEN: As I look back and read it, my understanding was -- and I won't, in the interest of time, read her entire two paragraphs here -- but the part of Casey which she found to be a particular problem as being declared unconstitutional by her colleagues was where an obstetrician would have to read to a woman certain verbiage that would explain the pros and cons about an abortion, or at least the down sides of an abortion.

And she said the state has an interest in promoting life, and so even though some women might be offended by that, it was still OK. It was still constitutional.

And that language is the language that the discussion about, even though some women would be affected, you transposed in good conscience to a case where notification to a husband was required.

One of the things that I had some difficulty with is whether or not there really were comparable issues here.

In one case, it was about whether or not a woman would fear for her life, for example, an exception was given, if she informed her husband. In another case it was not about that, that O'Connor was referring to, she was referring to whether or not it put an undue burden on the woman to be told, by the way, this can happen when you have an abortion and this is the state the fetus is, et cetera.

That is the part that kind of disturbs me, or that perplexes me anyway, about the real world here.

Senator Specter referenced the Violence against Women Act. We did a lot of work on that. There is overwhelming evidence that there are women who would be fearful of going home and telling their husbands they are going to have an abortion. Not fearful physically; fearful that the husband had all the economic power, would say, "I'm divorcing you and I'm taking the kids and having a custody battle, and you do not have the money to hire a lawyer."

BIDEN: Are they comparable ill effects? That is, that kind of ill effect on a woman that, if she tells her husband, he is going to sue for divorce and seek custody of the children, knowing that he has all the economic horsepower and she has no ability to go out and hire a significant lawyer?

Is that comparable to the doctor saying: By the way, if you have an abortion, here is what happens?

ALITO: The informed consent provision presented an easier -- easier isn't even the right word -- a less difficult question than the spousal notification provision.

I don't think there is any question about that. They both involve the same standard, which was the undue burden standard. And, therefore, I thought, and I still think, that what was said in reference to one provision is relevant in determining what the standard was.

The big issue, when this case was before us, was whether the standard was undue burden or not. It's funny how cases look different after they have progressed through the Supreme Court than they do when they are first presented to the court of appeals.

That was the most hotly contested argument before us. Had there been any change in the Supreme Court's case law -- and the plaintiffs argued strenuously that there had not -- but our panel, after some effort, determined under the Marks standard for determining what the holding of a case is when there is no majority opinion, that the standard was the undue burden standard.

And there just was not a lot to go on. I think I said that yesterday. I look for whatever guidance I could find.

BIDEN: Well, again, I am not questioning the sincerity of your search.

Again, it gets down to the thing that keeps coming up with me is not that you don't care about the little guy and all of that, but that your reading of statutory language, Supreme Court precedent, the Constitution, seems to me to not reflect some of the genuine real life differences that exist.

BIDEN: The idea that you acknowledge that some women would suffer ill effects, substantial ill effects from informing their husbands, but because it was only a small percentage that met the undue burden test -- that didn't meet the undue burden test -- seems to me -- well, anyway, a majority disagreed with you. And I happen to disagree with you because I guess -- maybe it's because we've been so exposed to how so many women, within their relationships, can suffer significant consequences for challenging a position that their husband does not want to accept, whether it has to do with abortion or what school their child goes to, and it's pretty consequential.

But that's my problem with how you arrived at your reasoning -- your reasoning of how you arrive at your conclusion.

Let me move on to another area in the interest of time here. Yesterday there was discussion about Family Medical Leave Act. And you correctly stated there were two distinct parts of the act, and the Hibbs case dealt with one, and the case which you -- Chittister dealt with another. Can you explain that again for me?

ALITO: Yes. Hibbs concerned a provision that required employers to give employees leave to be out of work to take care of a family member.

ALITO: And there was a record that state employers had given more leave for this purpose to women than they had to men, and that was based on the stereotype that when somebody in the family gets sick and somebody has to leave work to take care of the family members, it's the woman and not the man.

And it reinforced the stereotype, of course, because having such a policy would encourage, would put pressure on women to leave work for this purpose as opposed to the man. If there was a woman and a man in the family and somebody had to leave work to take care of a sick family member, and you have a plan like this, this is going to pressure the woman to do that.

So the Hibbs court found that that was a sufficient record of gender discrimination to justify the passage of legislation under Section 5 of the 14th Amendment.

Chittister concerned a provision that related to leave for personal illness. And there is no reason to think that men or women get sick more often one than the other, or what was to the point, that state employers had given men more sick time than women or women more sick time than men.

And so with that record it was the conclusion of my court -- and I believe seven other circuits -- that this was a different issue, these cases were decided before and after Hibbs, and that that could not be justified if you accept the congruence and proportionality standard.

BIDEN: Well, on the congruence and proportionality standard, we in the Congress felt we were speaking to that. Were you aware or your colleagues -- well, speak for yourself, actually; I know you can't speak for them -- that one in four people taking sick leave under the act are women for pregnancy-related disabilities. We, when we wrote the law, said explicitly that we wanted the bill to protect working women from the dangers that pregnancy-based distinctions could be extended to limit their employment opportunities.

BIDEN: I mean, the practical world is that a fair number of women who are pregnant are told in the last -- and I yield to my doctor at the end of the dais on the other side -- but it's not unusual for a woman to be told that she needs the last month of pregnancy or two months of pregnancy have bed rest.

And that if that counts against her 12 weeks, you know, employers -- we did establish there's a record where employers say, "Hey, look, man, we're going to give men and women the same leave," notwithstanding the fact that women, in fact, in many circumstances -- and one in four of them are pregnancy-related -- need more time because of the pregnancy.

I mean, was that discussed by you guys or women?

ALITO: I'm quite certain it never was. I would have made a reference to it in the opinion if that had been mentioned.

And I'm not aware of that coming up in the other circuit opinions on the issue.

We are, to a degree -- we can't know everything about the real world. And we are dependent on the arguments that are presented to us to a degree. I don't believe that argument was ever presented.

BIDEN: Well, Congress expressly stated that the purpose of the act was, quote, "to minimize the potential for employment discrimination by ensuring generally that leave is available for eligible medical reasons, including maternity-related disability."

And that's why the decision confuses me. I think all you probably have to do is turn to your wife and say, "Hey, you know, the real world, when you're pregnant, does that sometime inhibit the amount of time you're able to -- you're required to be away from your job?"

BIDEN: Fortunately, most women, like my wife and my daughters- in-law, my daughter-in-law, work up to the time, but a lot can't.

Let me suggest also, as I said to you in the hallway, I want to, kind of, set the record straight on Princeton. One of the reasons why I'm perplexed and many of us are perplexed by your answers regarding CAP, the organization, is that it doesn't fit with your background. It doesn't fit with your background.

As we both said in the hallway, I read your opening statement again, where you said that, "A generation earlier I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton." And I pointed out to you -- I'm about 10 years older than you -- that's how I felt. That's what I was referencing yesterday about my Irish Catholic kid from Claymont.

The thing that surprises -- or at least puzzles -- me is that it was, I thought, a pretty widely known debate that in the Ivys, the one, sort of, last holdout, fighting to not admit as many women and fighting not to admit as many minorities, was Princeton. And there was a whole battle over it, as you heard referenced in terms of the Wall Street Journal and mailings to alumni.

I noticed someone in the press saying -- I want to be able to continue to wear the hat given to me, by pointing out that the reason I can wear this hat proudly today, after being on campus as much as I have at Princeton, is today 28.7 percent of Princeton's undergraduate population is minority.

BIDEN: And today, the class of '05, 47 percent -- 47 percent -- are women. And so, that's what that battle was all about, a lot of us thought.

You know, I'd be proud of my daughter at Princeton Graduate School, instead of Penn now, although I am very proud she is at Penn. But that's what this debate was about, Judge, and that's why it still confuses me.

And I'm going to ask you a straightforward question and I hope it doesn't offend you.

When you listed CAP, was part of your rationale for listing that on the application that you thought that would appeal to the outfit you were applying to, the people looking at your resume?

ALITO: Well, Senator, as I've said, I don't have a recollection of having anything to do with CAP. So all I can say is that I put it down on the '85 form and, therefore, I must that been a member at around that time. And that's -- I can't even...

BIDEN: I'm not even suggesting about whether you were or were not remembering, but, was part of the reason -- I mean, one of the explanations -- I'm looking for a reason.

You know, I'm looking to be able to say -- because you don't impress me as someone -- especially from your background -- that would want to keep Princeton as -- I won't go back and read the quotes -- keep Princeton as, you know, "Imagine my father's 50th reunion, having 40 percent women. Isn't that awful?" You don't impress me to belong to that club.

ALITO: I wasn't.

BIDEN: And so, the only explanation I can think of -- and you're a very informed guy.

BIDEN: I mean, you're sitting up there in north Jersey as a U.S. attorney. As I said, it's in the Wall Street Journal. It's a debate going on. You're getting letters.

The only thing I can figure is you figure that, you know, a relatively conservative Reagan administration Justice Department would say: Hey, maybe that's the kind of guy I want.

I can't understand why else you'd put it down. But if that's not the reason and it's just you just listed the outfits you belonged to, that still perplexes me. But, anyway...

ALITO: Well, Senator, I wasn't a member of that club, as you referred to it.

By the time I entered Princeton, there were many minorities in my class. The practice of not including minorities had ended. My class was not coeducational when we were admitted. And as I said yesterday, I had never previously attended a non-coeducational school.

BIDEN: You had about 300 women, if I'm guessing right, when you got admitted roughly.

When were you admitted?

ALITO: I was admitted in 1968. It was not coeducational. It went coeducational while I was there.

BIDEN: '71 -- '70, '71, there were 300 women; now there is 2,100 in that same class.

Anyway, I thank you very much, Judge.

I yield the floor.

SPECTER: Thanks very much, Senator Biden.

We now have both Senator Durbin and Senator Coburn present.

Senator Durbin, you've asked for two minutes as a matter of personal privilege. You have two minutes.

DURBIN: Thank you very much, Mr. Chairman.

And I will make it brief.

In a courtroom and in a committee room, it's not unusual to try to rehabilitate a witness. And when hard questions are asked, people come back with information.

Mr. Gillespie and his team is down there providing information and others. Perfectly acceptable. We'd do the same thing if the shoe were on the other foot.

Two personal references to me after I left the room -- and I apologize for leaving the committee room -- one related to the fact that I had earlier been in a pro-life position in my political life, and it is true. I made reference to this in my opening statement.

I've stood for election more than 12 times in the House and Senate, general and primary, stating my position as pro-choice. So the voters of Illinois know that.

I had asked Judge Alito whether his position had changed from 1985; that was the nature of my questions to you this morning. I don't consider that to be a shortcoming, if you would concede it changed. Although, at this point, you have not made that concession.

Abraham Lincoln was once accused of changing his position on an issue, and he said, "I'd rather be right some of the time than wrong all the time."

DURBIN: And so I don't think changing your mind is necessarily a condemnation.

The second point I'd like to make specifically is my reference to settled law. Roe v. Wade is settled law. And I'm sorry that Senator Hatch is not here at the moment, but I would like to read into the record exactly what was said on September 13th, 2005, before this committee, when Senator Specter said...

SPECTER: Does this involve Senator Hatch, Senator?

DURBIN: It does. Senator Hatch raised the question that I had said that this position...

SPECTER: Shouldn't we have Senator Hatch here?

DURBIN: If you want to wait, I'll wait.

SPECTER: Yes, I'd like to wait for Senator Hatch to arrive. That way we may be able to conclude this not in two minutes, but in less than two hours.

I have made inquiries on the rush issue over the lunch hour and I have some things to say about it, but I'm not going to say them until Senator Kennedy arrives.

(LAUGHTER)

So I've asked staff to inform Senator Kennedy that I await his arrival.

And, in the meantime, if it pleases this august body, we'll proceed with the hearing.

Senator Kyl?

KYL: Thank you, Mr. Chairman. I do want to tie some loose ends up, and one of them makes reference to something Senator Kennedy read. Would it be OK if I proceed with that? I think it would be fine.

And this has to do with this last matter that Senator Biden was also discussing, and that's the Princeton alumni group, just to make sure that the key facts are understood here.

You believe you joined, Judge Alito, around 1985 because of a concerned threat to ROTC at Princeton university. Is that correct?

ALITO: Well, Senator, I don't recall joining, but I do remember that that was the issue relating to the administration that was bothering me for a period of time, including that period.

KYL: And just for the record, Mr. Chairman, I'd ask unanimous consent to insert a quotation from the Princeton packet.

KYL: And I'll just quote it here: "Prospect editor Denise DeSousa (ph), added that CAP is concerned about the formation of a Third World center, a campaign to eliminate the Army ROTC program, and what it perceives as the decline of Princeton athletics."

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

KYL: Second, on this matter -- and I refer to this as the very scurrilous material read by Senator Kennedy, that I suspect we would all agree was scurrilous material -- had you ever heard of any of that material that he read a while ago, before today?

ALITO: No, Senator.

KYL: I believe you said you vehemently disagreed with it; is that correct?

ALITO: I do. I deplore those statements.

KYL: And would disavow it?

ALITO: I disavow it. I would never associate myself with those statements.

KYL: Did you know that such things had been published by the CAP when you were a member of it or when you joined it?

ALITO: Absolutely not. I would never be a member of an organization that took those positions.

KYL: Also, Mr. Chairman, unanimous consent for the record to contain the disclaimer which the editors of the Prospect include in the magazine. It reads, "The appearance of an article in Prospect does not necessarily represent an endorsement of the author's beliefs by the Concerned Alumni of Princeton."

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

KYL: Now, let's return to your 15 years as a judge and how matters might come before you in United States Supreme Court.

I just wanted to also refer to something that I put in the record yesterday.

It is a very difficult thing to look at 4,000 cases and conclude, when you have ruled on both sides of issues, depending upon different fact situations, as we've talked about before, that you necessarily favor one side or the other.

KYL: One of the areas of concern was in the area of discrimination. I just want to read one sentence of what I inserted in the record yesterday regarding employment discrimination and see if you have any other comment on it.

"A 2003 study of employment discrimination claims in federal court fond that federal appeals court judges sided with employment discrimination plaintiffs in only 13 percent of the cases. Judge Alito's record of four out of 18, or 22 percent, is actually more favorable to plaintiffs."

Do you know that to be incorrect, or do you have any other comment on it?

ALITO: I don't know -- I'm not familiar with the statistics.

The way the appeals system is set up, I think that's what results in the statistics that you mentioned, the low rate of success for plaintiffs. Because these cases are generally cases in which summary judgment has been granted for the defendant.

If the district court denies summary judgment for the defendant, then the case will go to trial, and very often is settled, or there's a trial and there's no appeal after the trial.

So most of the cases that we get are cases that have been looked at by a conscientious district judge and found not to be cases that should go to trial, and I think that's what produces those statistics.

KYL: And that's an interesting lesson, I think, for all of us to be able to explain why certain cases come to courts and why they would be more on one side than the other. And it's an important lesson I think both for lawyers and non-lawyers to appreciate that kind of dynamic. Because otherwise, if you just look at raw statistics and don't know the background, you can come to different conclusions. So I appreciate that.

In another area, it is apparent to me that you're simply not going to be able to satisfy some of my colleagues because you will not absolutely commit to rule the way that they want to on a couple of key issues; for example, on the issue of abortion.

You've repeatedly confirmed the significance and the role of precedent, in this case Roe v. Wade. You also noted situations in which as a 3rd Circuit Court judge, you adhered to the Roe v. Wade precedent. But you have declined to announce your constitutional view of Roe today, despite repeated attempts by some of my colleagues to get you to do that in these hearings.

KYL: Implied in your answer is the point that to do that here would commit you to a particular result, something you cannot ethically do.

Are there cases regarding abortion that you believe may come before the United States Supreme Court?

ALITO: There certainly are cases that may come before the Supreme Court. There's a case involving abortion before the court this term, and they come up with some regularity. Many of them involve the application of Roe. Most of them involve the application of Roe or the application of other precedents that build on Roe. But it is entirely possible that a case involving Roe itself could come up at some point in the future.

KYL: I said in my opening statement that I would defend your right to decline to say in advance how you would rule on matters that could come before you.

But kind of along the same lines that you did a moment ago, perhaps you could tell us the reason for the rule. In other words, to elaborate on the damage that would be done if judges indicate in advance how they might rule on cases. What's the reason for that rule?

ALITO: To my mind, the most important reason is that to do that would undermine the entire judicial decision-making process. We have a process for deciding legal issues, and it is critically important that we stick to that process.

And that means that when an issue comes before us, the briefs are not a formality, the arguments of the attorneys are not a formality. We should read those very carefully, and we should study the issue, and we should study all of the authorities that are cited to us and carefully consider all of the arguments are presented to us, both in the briefs and in the attorneys' oral presentation, and then go into the conference and discuss the case among the members of the court.

And we shouldn't decide legal questions without -- questions that are not going to -- not just abstract questions without -- questions that are going to -- not just abstract questions as if we were in a constitutional law seminar, but cases that are going to have an impact in the real world.

ALITO: We shouldn't decide those questions, even in our own minds, without going through that whole process. If a judge or a judicial nominee announced before even reading the briefs or getting the case or hearing the argument what he or she thought about the ultimate legal issue, all of that would be rendered meaningless, and people would lose all of their respect for the judicial system and with justification, because that is not the way in which members of the judiciary are supposed to go about the work of deciding cases.

KYL: I have talked about this image that we have of Lady Justice, the blind figure with the scales of justice in her hand, and tried to describe why she has the blindfold across her eyes.

I just marvel at our judicial system and, having represented clients in court for 20 years myself, how we in America are willing to literally put our lives, sometimes, certainly our freedom and our fortune, in the hands of a person, one judge frequently -- sometimes a jury, sometimes not, sometimes more than one judge -- but frequently, a judge.

How would people possibly have the trust to put everything they own or their own freedom in the hands of a person, if we as a country had not established over 200 years of adhering to this rule of law, this notion that justice is blind, that the facts of your case and the law will decide whether you win or lose and nothing else?

It is a remarkable phenomenon, if you stop to think about it, and not all countries do that. Even the countries that have judicial systems, I don't think one can have near the confidence in it that we do here in the United States.

So it is a critical, critical principle that plays itself out in courtrooms around this country every day. And it's something that I think we have to fight to preserve, as much as we possibly can.

And I appreciate your explanation of that.

Just a couple of final things, and I'm going to be able to yield back some of my time.

KYL: I just can't resist pointing out one little irony here, and it has to do with the precedent that I spoke of before, Roe v. Wade, that is so important to several members of this committee.

Was written by a justice who himself, at least in some cases, willing to throw off precedent. Do you remember who wrote the opinion in Roe v. Wade?

ALITO: That's Justice Blackmun.

KYL: Justice Blackmun.

And in, one might say, an infamous 1994 dissent from a denial of cert in the case of Collins v. Collins, Justice Blackmun wrote that he would refuse to follow all Supreme Court precedent on the death penalty, which has been ruled constitutional by the court, of course, by saying that he would, and I'm quoting, "no longer tinker with the machinery of death," end of quote.

I suspect that's not the way to deal with precedent. If you have a comment on it, fine. But, again, I think it ironical that -- or ironic that the decision perhaps most in focus here was authored by a judge who himself was quite willing to throw off precedent, I would argue in a rather cavalier way in a situation in which he didn't like it.

Let me just close by putting something in the record and making a comment. Mr. Chairman, I ask unanimous consent to insert the following statement into the record, but I'd like to read it because it's a statement of the majority leader of the Senate, Bill Frist.

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

KYL: And let me briefly read it: "As a Princeton alumnus, I had concerns about CAP, but I have no concerns about Judge Alito's credibility, integrity and is commitment to protecting the equal rights of all Americans. Judge Alito has condemned discrimination and his record of more than 15 years demonstrates his commitment to equal rights for women and minorities.

"Old documents of a now-defunct organization will not tell us more than Alito's statements and record already have.

"Further, the views that the Democrats attribute to Alito through CAP were the views expressed by an individual member in a magazine who was not speaking for the organization and certainly not for Judge Alito.

"This is another transparent attempt by Democrats to wage an unfair smear campaign against an exceptionally qualified nominee."

KYL: And, Mr. President (sic), I read that not to attribute the views to any member of this committee. But I think it's important that the reputation of this fine jurist be based upon his actions as a jurist for over 15 years -- as I said in my opening statement, longer than any other justice of the United States Supreme Court, except for one, 70 years ago, on the Circuit Court of Appeals, with a record of over 4,000 decisions and an ample opportunity to know what kind of a person he is, what kind of a judge he has been and, I would argue, what kind of a judge that he would make.

I do not believe that his answers to questions have been inconsistent or unforthcoming.

I believe that, as a matter of fact, Judge, you have been very forthcoming in your answers to questions, including getting right up to the edge on a lot of matters that arguably could come before the court. But you did not try to dodge or duck those questions at all.

In fact, let me just read for the record two or three statements relating to your performance here at this hearing, if I could, please.

Well, Senator Biden isn't here, so I won't read what he has said but it's on the chart. And I appreciate what he said, by the way.

KYL: Joe Zuckman (ph), who writes in the Chicago Tribune, "'Judge Alito has gone farther. And I think that's given a lot more substance to these hearings,' said Specter," meaning our distinguished chairman, Arlen Specter.

And then, Dana Milbank, writing in The Washington Post, "Unlike John G. Roberts Jr., who made frequent attempts to soften his views and dodge many of the questions, Alito took almost every question."

Now, I'm not going to subscribe to the first part of that last quotation with respect to Judge Roberts.

But I think it is true that you have taken the questions, you have answered them to the best of your ability, and you have only stopped short when not to do so would be to commit to a decision in a case that you are not ethically permitted to do so and that would do injustice to the rules of law and the parties that might come before the court.

So I want to commend you for being so forthcoming, for answering our questions, and for testifying in a very thoughtful and, has been apparent to everybody, without any notes or materials or referring to any other people here, with great knowledge about both the matters on which you have worked in the law, generally.

Thank you, Judge.

ALITO: Thank you, Senator.

KYL: I'll yield back.

SPECTER: Thank you very much, Senator Kyl.

Senator Kohl?

KOHL: Thank you very much, Mr. Chairman.

Judge Alito, after the first day of questions, it seems very clear that you believe there are certain bedrock principles in American constitutional law, principles like the right of one man, one vote in redistricting, the right of children not to have to go to schools unless they are integrated schools, the right for people to have privacy in making decisions about contraception and other rights.

KOHL: Even though these are cases where the principles are raised and their application is debated on the margins, or even more fundamentally, I believe you have said and you're willing to say that you will not question the underlying principle involved on these issues.

And I commend you for that. We are assured, and I believe that you clearly do stand by those principles.

And yet when you are asked about Roe v. Wade and the following case of Casey, cases that say the government should not place an undue burden on a woman's right to choose, when we asked about principles of that sort, you are unwilling to make the same statement of support.

Now, I understand that there will be cases where plaintiffs argue on the margins about Roe and Casey, where there are efforts to narrow or broaden these principles, just as there are cases that narrow or broaden the principles of one man, one vote, or the issue enunciated in Brown v. Board of Education, or Griswold.

But you are willing to stand by those other legal principles, and yet you're not taking the same position with regard to the principles embodied in Roe and Casey. Could you explain that, please?

ALITO: Senator, I think it's important to draw a distinction between issues that could realistically come up before the courts and issues that are still very much in play, which is to say is subject of litigation in the courts.

And I felt comfortable about commenting on one person, one vote and, of course, Brown v. Board of Education, because those are not issues that are any longer the subject of litigation in our country, not the fundamental principles that are embodied in those decisions.

And the Griswold case, likewise, concerns an issue that is not realistically likely to come before the courts.

Roe, on the other hand, involves an issue that is involved in a considerable amount of litigation before the courts, and so that's where I feel that I must draw the line.

ALITO: Because on issues that could realistically come up, it would be improper for me to express a view and I would not reach a conclusion regarding any issue like that before going through the whole judicial process that I described.

KOHL: I think there's strength to what you say. But I also believe it's not inaccurate to say that these other issues on the margins, just as Roe on the margins, are still coming up and may yet come up before the court.

And I still feel that while you are prepared to take a position on these other issues, which is almost, bottom line, clearly bottom line, you're not prepared to take that same position, which you could if you wished. You could take that position if you wished.

And I think what that does suggest is that what you are saying is that it is possible, if a case comes before you, that you would take a look at the principles underlying Roe and Casey and see them in a way that would overturn Roe and Casey.

Now, you may say, "Well, obviously, the answer is yes," but I just want to get that clarified for the record.

ALITO: Well, what I would do if a case like that were to come before me, if I'm confirmed, is to follow the two-step process that I've talked about; which is first to consider the issue of stare decisis.

And there's been a considerable body of case law now on this issue going back to Roe and, in particular, over the last 20 years. And in the Casey opinion, that was where the joint opinion began and where the joint opinion ended.

ALITO: And then only if I got beyond that issue would I consider the underlying issue.

And that's what I would do if the issue were to come up. And I don't believe that it would be appropriate, and it wouldn't even be realistic for me to go further than that.

KOHL: That is correct.

And in your mind, you're not prepared to say that the principle embodied in Roe and Wade or the principle embodied in Casey is clearly established law that is not subject, in your mind, to review.

ALITO: Well, in light...

KOHL: I mean, that is not your position, which I think you have said. But I think, at least for me, a clarification of that would be of some importance.

ALITO: Well, in light of the current state of litigation relating to the issue of abortion -- and as I said, there's an abortion case before the Supreme Court this term and there are undoubtedly abortion cases before the lower federal courts; I know there are -- I don't believe that it's appropriate for me to go further than that in relation to that issue.

KOHL: All right.

Judge Alito, the president nominated you for the Supreme Court because of your record as a person and as a judge.

Groups and individuals, particularly on the right, quickly endorsed you soon after your nomination because they feel comfortable with your record as you have established it over several decades now, where you've come from and where you are on the issues that are important to them.

We also assume that you yourself are very proud of your record, as you should be.

As a man of principle in conviction, which we believe you are, you worked on issues throughout your career as a Justice Department attorney that you believed in, that you cared about, that mattered to you. And I'm certain you would say that if you didn't believe in these things, you would not have gone to work for that particular Justice Department under that particular administration.

And yet yesterday, during the hearing, you seemed to walk away from a lot of your record.

For example, when asked about an interview where you supported Judge Bork, calling him, quote, "one of the most outstanding nominees of this century," you answered that you were just supporting the administration's position; that that wasn't your position.

KOHL: And even then, you distanced yourself from a number of his views, after having said that he was one of the most outstanding nominees of this century.

You are a man of conviction, I am sure you are, and you are not just a mouthpiece for people. You never have been and you never will be, which is to your credit.

When asked about the strong position you took opposing a woman's right to choose in your job application, you said that only reflected how you felt then and did not suggest anything of what you believe now. What you felt then, you felt as a full-grown man, and you're saying that is not how you necessarily feel now.

When asked about your membership in a radical organization at Princeton, a group that you cited with pride on your job application, you said that you could not remember anything about the group at all.

When asked about the citation in your job application where you refer to the importance of traditional values and what you meant by traditional values, and then you answered, somewhat incomprehensibly, when you said that you were protecting children from, quote, "psychological threats that come from elements in the atmosphere is a traditional value," unquote.

I also ask you about your statement on your job application that you disagreed with the Warren court's rulings on reapportionment, rulings that stand for the basic principle of one person, one vote. Indeed, you said your disagreement was so strong that it contributed to your decision to pursue a legal career.

Yesterday, you stated that you, in fact, did not disagree with the principle of one person, one vote; not then, not now.

So, Judge, this is the only time that the people of this country are going to have an opportunity to get a sense of who you are, what you believe in, what you stand for, who you are as a person.

KOHL: I