Transcript

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

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Wednesday, January 11, 2006; 1:43 PM

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 think you would say that the American people have the absolute right to know that without condition, without any political considerations; that the most important part of this hearing is that the American people get a chance, through our questions and your answers, to know who you really are.

I would like to hope that you would say the job isn't worth it if we can't do that and do that well. And I believe you believe that.

So I would like to ask how you bring into a sense of harmony some of these things that you have done and said throughout your career which have brought you to this situation in which you are now a person being nominated to serve on the Supreme Court, and some of the positions that you've taken in the last two days, which, in effect, distance you from some of the very things that you have done and stood for over a career that bring you to where you are today.

ALITO: Senator, you mentioned a number of things, and I've tried to jot them down so that I could cover at least the major things that you mentioned. And I guess I'll take them in reverse order of chronology.

You mentioned the statement in the 1985 statement relating to reapportionment. And I've tried to explain what I had in mind.

The statement in the '85 statement talked about what I thought about reapportionment when I was in college. And the reason why I mentioned that -- why would I mention what I thought about constitutional law in college, before I had even been to law school?

ALITO: What I was attempting to do was to explain the development of my thinking about the role of the judiciary and about constitutional law and, in particular, the development of my strong belief in judicial self-restraint.

And the first place in which I saw a theoretical explanation of that doctrine, which I found persuasive at the time, was Alexander Bickel's book, "The Supreme Court and the Idea of Progress," which came out during the time when I was in college. I think it was the first book about constitutional theory, so to speak, that I had read.

And he addressed the issue of one person, one vote. And that linked up in my mind with the experiences of my father and working of the reapportionment of the New Jersey legislature.

And at the time when I was in college, there was an issue that was very much a live issue at the time as to what one person, one vote meant.

Did it mean that you took this principle of one person, one vote and applied it with blinding literalness so that every district was exactly equal in population or very close to that, with a population deviation of under 1 percent, or could other factors that people thought were legitimate factors to be considered in drawing districts, such as respecting county lines and municipal lines -- was it permissible to take those into account?

And that's what I know I was thinking about in reapportionment back in my college days.

I referred, in the statement to traditional values, and I said yesterday, at this point in 2006, I can't say for sure exactly what was on my mind in 1985 when I made reference to traditional values. But I tried to describe some of the things that I probably thought of as traditional values. And I listed a number of them.

And a lot of them had to do with the ability of people to live and raise a family in the sort of neighborhood where I grew up.

ALITO: And I gave a little description of that earlier.

So it would include things like being able to live in peace and safety. I think that's a traditional value, and that was very much at stake when I was in college in the late '60s and early '70s, and in 1985, because these were areas of high crime. And a lot of the work that I had done up to 1985, as an assistant U.S. attorney and working on criminal cases in the Solicitor General's Office, seemed to me to be involved with this issue of protecting people from the threat of crime.

I think I mentioned the ability to raise children the way you want, to instill your values, not to have them subject to certain external threats.

I've tried to think of why would these have been at issue in the mid-'80s, and they were at issue because of things like some of the things I was referring to earlier today about children being able to -- and students being able to express their religious views at school in a nondiscriminatory way, so that religious speech was not discriminated against. And that was very much at issue in the '80s. Congress passed the Equal Access Act at about that time to embody that principle.

So those were some of the things that came to my mind as traditional values.

The 1985 statement in reference to abortion, I have not distanced myself from it. I have said that that was a correct expression of what I thought in 1985 when I wrote it. It was written in 1985, and that was 20 years ago, and there's been a lot of case law in the intervening years. There was Thornburg and there was Webster and Casey, all of which involved direct challenges to Roe, and there were other cases applying Roe.

So that's what I had in mind with respect to the matters that you've covered.

KOHL: Last question: When we met privately, I asked you what sort of Supreme Court justice you would make, and your answer was fair when you said, "If you want to know what sort of justice I would make, look at the sort of a judge that I have been."

Last week, The Washington Post did exactly that in an analysis of your record as a 3rd Circuit judge for the past 15 years. They analyzed 221 cases that you sat on in which the court's decision was divided. I recognize that in every case there is a difference and they must be decided on the facts. Nonetheless, this data reveals patterns and tendencies in your decisions, among other things, as you may have recollected from the Post article.

It was found that in civil rights cases you sided against three out of every four people who claimed to have been victims of discrimination. This was a significantly greater rate than other judges in a national sample of cases.

Of 33 criminal cases the newspaper analyzed, you sided with the criminal defendant only three times. This was a very much lower rate than the national sample.

In immigration cases, The Post also found that you sided with immigrants who were trying to win asylum or block deportation only in one out of eight cases analyzed. This was much less than most judges in a national sample.

Now, The Washington Post was not the only one to perform an analysis of your record. Noted constitutional law professor Cass Sunstein, for example, found that, quote, "When there is a conflict between institutions and individual rights, Judge Alito's dissenting opinions argue against individual rights 84 percent of the time."

So what can we glean from these analyses of Judge Alito, and what might they indicate with respect to your posture on cases should you become a justice of the Supreme Court?

ALITO: On the discrimination cases, Senator, I think that the statistic that Senator Kyl just cited speaks directly to that: a comparison of the number of times in which people claiming discrimination prevailed in the cases won my vote, compared to the average for circuit judges in general.

ALITO: And I think that that my statistics and the statistics for circuit judges in general have to be viewed against the background of -- have to be viewed with a recognition of the way in which these discrimination cases come up through the court system.

Most of them are cases in which the person claiming the violation lost in the district court. And that means that a district court judge -- and they're not always right, but most of the time they're right and they're conscientious people and they apply the same law that we do -- they found that these were not meritorious cases.

And so if you start out with a group of cases that have already been found to be not meritorious, it stands to reason that probably not a very high percentage of them will ultimately be found to be meritorious.

On the immigration cases, I take very seriously -- and I don't know what the statistics are in this area, but I can tell you this: that I take very seriously the scope of review that I'm supposed to perform as an appellate judge.

And that is usually dictated by Congress. In the area of immigration, Congress has spoken clearly.

And as to factual decisions that are made by an immigration judge, what Congress has told us is, "You are not to disturb those unless no reasonable fact finder could have reached the conclusion that the immigration judge did."

And I very often see a record where I think it's doubtful, I say to myself, "I might have decided this differently, if I were the immigration judge." But I wasn't there. I didn't see the witnesses testify personally.

And Congress has told me what my role is there. My role is not to substitute my judgment for that of the immigration judge. My job is to say, "Could a reasonable person have reached the conclusion that the immigration judge did?" And if I find that a reasonable person could have reached that conclusion, then it's my job to deny the petition for review. And that's what I do in those instances.

KOHL: I appreciate that. I would just comment, again, that your siding with immigrants who are trying to win asylum or block deportation -- you sided only in one out of eight cases that they analyzed.

KOHL: And this was much less than most judges in the national sample who were about evenly divided in their decisions on these issues. This was what their analysis indicated.

So, for whatever it's worth, you were one out of eight, and a national sample of judges was about 50 percent. I only bring that up for your comment.

I thank you very much, Judge Alito.

And, Mr. Chairman, I thank you.

SPECTER: Thank you, Senator Kohl.

We have made some inquiries about the issue which Senator Kennedy has raised about the Concerned Alumni of Princeton. As to the letter, I am advised by my chief of staff, Michael O'Neill, that he first saw a computer letter, and that he believes later a letter was delivered to the Judiciary Committee headquarters, apparently near Christmas, perhaps on Christmas Eve. And our custom is to log letters in, and the letter was never logged in.

But I repeat and confirm that I have never seen this letter until I saw a computer printout of it about an hour ago. Mr. O'Neill did talk to me about it over the break between Christmas and New Year's. I traveled to Iraq. That's the first time on the Judiciary Committee schedule I could find a few days to get away.

And Mr. O'Neill reminds me that we talked about it on the phone and I thought the matter was unmeritorious, not worthy of the time of the commission based on all that I knew about it.

SPECTER: Very brief conversation. And we get so many requests and there are so many items that are largely staff driven, not that staff-driven matters aren't important, but if something is of significance, you customarily expect a member to tell you about it.

Senator Kennedy and I frequent the gym at the same time and talk all the time, and never mentioned it to me, nor did he take it to the ranking member.

I make it a point that Senator Leahy's calls are the first ones I return, and I have a fair number, but I return all calls from members very, very promptly. And had this matter been presented to me, I would have given it more attention than I did on that telephone call that I have referred to.

So much for matters which are not quite as relevant as what I'm about to come to.

The New York Times published a story about this on November 26th, and my chief of staff, William Reynolds, talked to David Kirkpatrick, who said he had gone through all of the records. And as the story in the public domain has stated, these are the records that the Library of Congress, the Rusher records, those records and others at the library at Princeton give no indication that Judge Alito was among the group's major donors. He was not an active leader of the group.

SPECTER: And two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role.

Well, the obvious thing to do is to call Mr. Rusher, which Mr. O'Neill did over the lunch hour. And Mr. Rusher said he'd be glad to have us look at his records and that he'd received a request from Congressional Research Service, but it was from an unnamed requester, and he declined.

But he said, had he received a request from Senator Kennedy or some member of this committee, he would have made the records available.

So, in Senator Kennedy's absence, I asked a staffer to tell him that we had moved ahead with it; I didn't want waste any time.

And Mr. O'Neill has contacted Senator Kennedy's staffers and they are en route or at the Library of Congress to look at these records so that we can confirm what the New York Times' David Kirkpatrick has had to say.

I am just a little puzzled at the issue being raised in this manner. We talk all the time. And I'm just a little surprised that Senator Kennedy hadn't talked to Senator Leahy or hadn't talked to me before he made a request for access to the Rusher records, talks about a subpoena, talks about a ruling of the chair, talks about overruling the chair -- just a little tussle.

But the substantive matters are being attended to.

SPECTER: And I share Senator Kennedy's concern that we have all the facts, all the facts, all the facts. And this is a lifetime appointment, it's a matter of tremendous importance, and I wouldn't want to find on some occasion that something comes to light which would bear on this nomination that we could have found out had we had been more vigilant.

Senator Kennedy?

KENNEDY: Thank you, Mr. Chairman.

I welcome the fact that we're going to have the access to those records.

The fact remains, I didn't anticipate -- I thought that since this was a major issue on the 1985 application of the nominee for a new job, this membership with the Federalist Society and the CAP organization, I thought as a matter of routine that we'd have access to those records.

And it was a letter to you, as we would do, with follow up with the staff, which is the usual procedure here. I regret I haven't been down in the gym since before Christmas...

(LAUGHTER)

... so I missed you down there.

But the important fact is we're going to get that information. I think that's what's extremely important.

And, quite frankly, if we had been able to get what I think were more responsive answers by the nominee during the course of the exchange today, I don't think probably it would have even been necessary.

But I don't think you'll be able to look through transcript of the exchanges that we had with the nominee and not feel that we have an important responsibility to follow up.

So I'm grateful we will have that chance to follow up. And look forward to the further considerations of evaluation of the material and further considerations of the hearing.

SPECTER: Enough said.

Senator Leahy, you have a unanimous consent request?

LEAHY: Yes.

Mr. Chairman, as I had understood, we'll be going back to another round. So if I misunderstood, you'll be sure to correct me.

But as I understood Judge Alito, he saw no connection between his unified executive theory and the use of presidential signing statements. In fact, the Wall Street Journal reports the president has cited the unitary executive 103 times in presidential signing statements. So I'd like to put that article, some articles from the Post and the Globe relevant.

In fact, the Defense bill, McCain torture amendment he specifically employed and I'd like to make that part of the record.

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

Senator DeWine, 20 minutes?

DEWINE: Thank you, Mr. Chairman.

Judge, yesterday you and I discussed the concerns that I have about the Supreme Court's willingness to strike down laws passed by this Congress and by state legislators. This lack of what I consider to be appropriate deference by the court endangers our ability to protect the rights of our citizens.

One of the groups that I'm most concerned about in that context is people with disabilities.

Congress has passed a number of laws to assure that people with disabilities have equal access and equal opportunities. I think it's critically important that we make sure that those with disabilities have these opportunities to participate fully in our society in every way possible.

As you know, Judge, the Americans With Disabilities Act was a landmark piece of legislation passed by this Congress in our ongoing efforts to assure that people with disabilities are treated fairly.

The 1999 case of Olmstead v. L.C. was an important Supreme Court case interpreting this law. As you know, Olmstead held that Title II of the ADA required states to serve individuals with disabilities in community settings whenever possible instead of segregating them while providing them with care.

DEWINE: Olmstead was decided after the case of Helen L. v. DiDario, a case which, of course, you're familiar with, a 3rd Circuit case that reached essentially the same conclusion.

Although you were not on the Helen L. panel, you, along with four other judges, voted to rehear the case en banc.

So let me ask you, Judge, if you could, to discuss with us your reasoning behind voting to rehear the Helen L. case. And I'd like to ask you, did that vote to rehear the case mean that you thought that Helen L. case was decided incorrectly, or that you opposed the later holding in Olmstead.

Let me also ask you, now that Olmstead has been decided, do your reasons for voting to rehear the Helen L. case still apply? And do you have any concerns with the Supreme Court's holding in Olmstead that would cause you to question the validity of that particular decision?

ALITO: I certainly don't have any concerns about the decision in Olmstead.

I would have to look at my own file in the Helen L. case -- and I doubt that there is any file in the case at this point -- and see if there's anything in there to indicate specifically why I voted for rehearing in the case.

But I can say this: that I read the decision again and one important part of the opinion in the case attempts to distinguish an earlier 3rd Circuit case that seemed to be somewhat closely related, closely related to the issue that was at hand. And I noted there were five votes for rehearing in the case, and that's quite unusual. It's unusual for there to be that many votes for rehearing.

I would say most of the time when we vote for rehearing, the reason is because we think that there may be an inconsistency in our court case law.
And that doesn't necessarily mean that we think that the decision we're voting to rehear was incorrect.

ALITO: Quite often, we think the decision that we are voting to reconsider is correct but that it is inconsistent with a prior case that needs to be overruled.

And we're very scrupulous about following our own precedents, not ignoring them. So if we have a precedent out there and it seems to us to be wrong and the issue comes up in a later case, then our mechanism is to vote to rehear.

And that happens very often. And my guess, based on what I can tell just from reading the opinion and looking at the votes for rehearing and the judges who voted for rehearing, that that could have been what was going on.

DEWINE: I appreciate your answer, Judge.

As the chair of this committee's, Subcommittee on Antitrust, I have seen that it is very often very hard to draw the line between anti-competitive conduct and, frankly, just good old-fashioned competition.

Let me give you an example that Senator Kohl and I have done a great deal of work on, and, frankly, Senator Kohl has really taken a lead on.

Many hospitals buy their supplies through group purchasing organizations known as GPOs. These organizations purchase products for large number of hospitals at one time, which decreases prices but also gives them extraordinary power over which products get used and which ones don't get used.

Often GPOs reach deals with major suppliers to buy items in bundles; in other words buy a number of different products and those suppliers in order to get discounts on all of the products. Saves money but it also means that smaller companies, which may only offer one of these products, have really a hard time competing with the large discounts being offered. The result is that smaller companies have difficulty getting into the market even if their one specific product may be better or may even be cheaper.

Judge, you had a case that dealt with bundling like this. It was, of course, the 3M v. LePage's case. In that case, 3M, which sells Scotch tape, was selling it as part of a bundle with other products. The result was that LePage's, which was offering a cheaper, competing tape, was having a hard time getting stores to sell its tape because if the stores did, they would have to give up the chance to save money on all the other 3M products that they carry.

The majority ruled against 3M, but you dissented. I wonder if you could please explain your reasoning behind that dissent, and explain what type of bundle discounts you think would violate the antitrust laws.

ALITO: Well, let me preface what I'm going to say by saying that I'm not an antitrust expert, and so I plod my way through these antitrust issues when they come up.

But this was a tough one, and it was a monopolization case. And it required an examination of all the factors that were relevant to the determination of whether 3M was engaging in monopolization.

3M was selling the product, as I recall -- it was selling these products -- it was not selling them below its cost. It was selling them above its cost. But 3M, because of its scale or because it was more efficient and was able to produce its product more cheaply.

And I remember looking at the authorities that had discussed this and the writing of leading antitrust experts on bundling issues.

ALITO: And that factor, taken together with the other factors in the case, persuaded Judge Greenberg and I -- and we were the majority on the case at the panel level -- that there wasn't sufficient evidence of monopolization here.

And then when the case went en banc, the court as a whole came out the other way.

But my understanding of the state of the scholarship on this issue right now and on the way economists view the issue is that I believe that there are many of them who believe that a situation like this does not involve monopolization, that this is not a way in which a company like that can engage in a predatory practice over a period of time.

But there's uncertainty, really, about how the monopolization standard applies to issues of bundling. So I think it's quite up in the air and should it come up again, I think it merits reexamination.

DEWINE: Thank you, Judge.

Judge, you've heard a lot of discussion, and many of us have said that we don't like it when judges legislate from the bench.

For judges to properly perform their function, obviously, it's crucial that they attempt to put their own policy preferences aside in the cases before them. But it seems to me that this is a lot easier said than done.

Our Constitution is not a dictionary. It contains a number of very broad, undefined phrases.

Let me give you some examples. The Fourth Amendment prohibits unreasonable searches and seizures. The 14th Amendment says that the states shall not deprive any person of liberty without due process of law. The Eighth Amendment prohibits cruel and unusual punishments.

And I'm sure you can supply a lot more examples than I am.

When confronted with such broad phrases, like "unreasonable, liberty, cruel, unusual," how do you know whether you are making policy or merely interpreting the Constitution itself?

And what tools will you use as a Supreme Court justice to ensure that your personal views do not play a role in your decision-making?

ALITO: In all the areas that you mentioned, there is now a considerable body of case law. And that is a real limitation on the exercise of judicial power. And that is one of the important reasons for the doctrine of stare decisis.

In the 78th Federalist Paper, when Alexander Hamilton was responding to the people who were worried about this power of judicial review, who thought that it would give the judiciary too much power, he specifically cited the fact that members of the judiciary would be bound up by precedent and this would restrain them; this would keep them from injecting their own views into the decision-making process.

Under the Fourth Amendment, there's an enormous body of case law now, and there are many types of searches that it's established in case law that a warrant is required. There are types of searches where it's established now that the activity can be conducted with reasonable suspicion, a Terry stop, for example. Other types of searches require probable cause. And there are many specialized types of searches, administrative searches, road blocks constructed for certain purposes, border searches and so forth.

Under the due process clause of the Fifth Amendment and the 14th Amendment, there's a great body of case law on procedural due process. And most of the due process issues involve procedural due process, what sort of process is required.

There is a standard for cases involving the substantive component of that.

Under the Eighth Amendment, since the Supreme Court in Gregg v. Georgia ruled that the death penalty is permissible under certain circumstance. There's a very -- a large body and a complex body of case law within which a judge would work in deciding cases in that field.

DEWINE: Judge, let me turn to an area that I talked with Judge Roberts about, and that is free speech in the public square.

DEWINE: To me, there's perhaps no right in our Constitution that is really as important as the freedom of speech.

The heart of the First Amendment is the idea that people have a right to speak their mind but also be heard on matters of public concern.

Traditionally, our citizens have expressed their opinion on public issues by turning to the public square. They do it in parks, in streets, in sidewalks, anywhere that people gather. It's as old as the country and older than our country.

Lately, however, I believe that we're seeing a disturbing trend.

Many cases governments have sought to restrict speech in the public arena; sometimes with success, sometimes without.

Let me give you some examples. One recent case, a Wisconsin woman was kicked off a city bus when she tried to distribute a book containing Bible stories to individuals sitting next to her.

In many towns and cities across the country, individuals are prohibited from placing political signs on their own property. They're told what size they can put out. They're told the times they can put it out, the dates they can put it out, et cetera.

In many public places, individuals have been forced to hold up signs or protest and been confined to free speech zones, far away from the event that they wish to protest. These individuals doing nothing more many times than just standing there with a sign.

These sorts of restrictions concern me because they limit the ability of individuals not only to speak but also to be heard in public places, people who want to talk about politics, religion or any other matter of public concern.

I think we need to be careful as a society before we limit what people can say and where they can say it.

Let me ask you: How do you approach challenges to government restrictions on the ability of individuals to speak and be heard in public places?

And what, Judge, factors do you consider when deciding which restrictions on speech in the public square are proper under the First Amendment and which ones are not?

ALITO: I think that freedom of speech and freedom of the press and all the freedoms set out in the First Amendment are matters of the utmost importance.

ALITO: Freedom of speech is not only important for it's own sake, but it is vital to the preservation of our form of government. And I think that if anybody reviews the opinions that I've written in the area of freedom of expression and other First Amendment...

DEWINE: I've looked at some of them, at least.

ALITO: ... they will see that I strongly support those rights.

The issue of speech in particular places is a daunting issue, where the Supreme Court has addressed it by developing the forum doctrine and they have identified what they call public forum, which would be something like a public street, where people's ability to speak is at the maximum.

At the other extreme, there's a private forum. My chambers would be a private forum; a senator's office would be a private forum. Someone would not have a right to come in from the street and speak in a place like that.

And then there are what they call limits of public forums, or dedicated public forums or fora, places where people can speak freely, but only at particular times on particular subjects, a place that's decided to free speech, but only on a particular subject, for example.

That's the way they analyze it.

Now, some people would say that there are developments in society that have resulted in the shrinking of public fora that make it more difficult for people to express themselves. I know that I'm not up to date on New Jersey case law under the New Jersey constitution, but it's my belief that our state has read this -- has a different forum doctrine in things like shopping centers -- malls that are privately owned are considered to be public fora under a New Jersey state law. I think some other states view it that way and that's a competing way of looking at this problem.

An important principle -- where I have dealt with this in my cases, as I can recall, is the issue of freedom of speech in a limited public forum. And even in a limited public forum, what government cannot do is engage in viewpoint discrimination.

ALITO: If the government opens up a particular forum for discussion of a particular subject, you can't say, "But we're only going to allow people who express this viewpoint and not another viewpoint."

Viewpoint discrimination really goes to the heart of what the First Amendment is intended to prohibit, so that even in a limited public forum, where people are restricted with respect to what subject that they can talk about, government can't impose a viewpoint discrimination.

DEWINE: Well, it just seems to me, Judge, that we could talk about this issue all day, and we're not going to, obviously, but that there is a shrinking public forum, and the opportunities many times are going away.

I guess you could make the other argument that because of modern technology, there are other opportunities, with the Internet, et cetera, that they are opening up for people to communicate and to make their point well known.

But a lot of the places that people historically have talked and made their point well known are shrinking. You talked about the malls, which certainly in most states are totally off limits to any kind of display of that kind of debate.

Let me turn to commercial speech, if I could. Under current law, commercial speech is protected by the First Amendment, but it has never had the same level of protection as other forms of speech, such as political speech. The difference in treatment has puzzled a number of commentators and judges.

In reviewing your cases, I noticed that you are certainly familiar with the issue of commercial speech. In Pitt News case, for instance, you struck down a Pennsylvania statute that barred paid alcohol advertisements in newspapers affiliated with colleges and universities.

Let me ask you, Judge, based on your experience with this and other cases, what is your view about the distinction between commercial speech and noncommercial speech, and is there a common- sense difference between these two types of speeches? And have you found that case law supports any distinction? And how, if confirmed, will you approach the so-called commercial speech claims under the First Amendment?

ALITO: Well, there's a debate about how much protection commercial speech should have.

There are those who argue that the distinction between commercial speech and noncommercial speech should be eliminated. The Supreme Court views commercial speech differently. And while it is strict about any limitation regarding accurate information about prices it limits, it permits greater restriction of commercial speech under current case law than it does with respect to other types of speech.

And the theory, as I understand it, is that commercial speech is more durable. At least that's part of the theory. In other words, there's such a great incentive for people who are selling things to engage in advertising and other forms of commercial speech that it's less likely to be driven out than speech on other issues where the financing may not be as extensive.

In the Pitt News case, what I had to apply was the question of whether there was sufficient tailoring.

There was a compelling interest for what was done there, which was to restrict advertising about alcohol in a publication that was affiliated with an educational institution. But based on the facts there, it just did not seem to be tailored at all.

This was a newspaper that, I think, 75 percent of the people who received it in its connection with the University of Pittsburgh, were people over the drinking age.

And maybe even more to the point, this publication was distributed free on campus and in newspaper boxes next to a number of others that contained commercial publications.

And they both advertised establishments and events in the area of the university. And the others were full of information about alcoholic beverages and those were free too.

So while the problem of underage drinking and abusive drinking on college campuses is a very serious issue, and the Pennsylvania legislature recognized that and we certainly didn't question that -- it is an issue of critical importance -- it seemed quite unrealistic to think that this regulation, which only applied to the Pitt News and not to these other publications, was tailored sufficiently.

DEWINE: I thank you, Judge.

Interesting set of facts. I thank you, sir.

SPECTER: Thank you, Senator DeWine.

Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman.

I want to try one more time.

First of all, let me just say this. Senator Durbin said that Justice Roberts retired the trophy on performance.

If that's true, you've retired it on equanimity. I really think you're to be congratulated.

This is this morning's Washington Post: "Alito says he will keep an open mind." But what concerns me -- and obviously this is on Roe -- is that despite 38 tests, despite 33 years, despite the support of a majority of America, you also said yesterday that, "precedent is not an inexorable command." And those are the words that Justice Rehnquist used arguing for the overturning of Roe.

So my question is, did you mean it that way?

ALITO: The statement that precedent is not an inexorable command is a statement that has been in the Supreme Court case law for a long period of time. And sitting here, I can't remember what the origin of it is, but I would bet that it certainly has been used in cases in which the court has invoked the doctrine of stare decisis and refused to go ahead and overrule.

FEINSTEIN: I always believe everything I read in The Washington Post.

(LAUGHTER)

ALITO: Well, that is an important principle.

(LAUGHTER)

FEINSTEIN: I don't know about that one, but...

ALITO: And I -- not the principle of believing everything in The Washington Post, but the principle that stare decisis is not an inexorable command, because then we would be stuck with decisions like Plessy and they couldn't be overruled except through a constitutional amendment.

But when an issue is one that could realistically come up, the people who would be making the arguments on both sides of the issue have a right to have a judiciary of people with open minds. And that means people who haven't announced in advance what they think about the issue and, more importantly, people who are not going to reach a conclusion until they have gone through the judicial process.

ALITO: And it's not a facade, it's not a meaningless exercise. It's a very important one.

FEINSTEIN: Let me try this: I'd like to read a line of questioning, of questions, that Senator Specter asked now-Chief Justice Roberts. And then I would like to ask this question: How do you disagree with this?

Here's the questions: Specter: "Judge Roberts, in your confirmation hearing for the circuit court your testimony read to this effect, and it's been widely quoted. Quote, 'Roe is the settled law of the land,' end quote. Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?"

Roberts: "Well, beyond that. It's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes."

Specter: "You went on to say then, quote, 'It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision, so it has added precedental value.'"

Roberts: "I think the initial question for the judge confronting an issue in this area, you don't go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding."

And Specter says: "And you went on to say accordingly, 'It's the settled law of the land," using the term 'settled' again."

And then your final statement as to this quotation: "There's nothing in my personal views that would prevent me from fully and faithfully applying the precedent as well as Casey."

Where do you differ? Since Justice Roberts made that statement in a confirmation hearing -- he not only got confirmed, he's the chief justice -- it seems appropriate for to you comment on it and say where you might differ with it.

ALITO: Well, the statement covers a lot of ground. And let me try to remember the major points. I certainly agree with the point...

FEINSTEIN: I can give it to you if you'd like?

ALITO: Certainly. I'd be happy to.

FEINSTEIN: Would that be helpful? Would somebody take it down to him? Show him the place.

(CROSSTALK)

(UNKNOWN): Be on the front page tomorrow?

(LAUGHTER)

ALITO: Well, Senator, I certainly agree with the point that the chief justice made about separating any personal views he has from anything that he would do as a member of the Supreme Court. I emphatically agree with that. That's the essence of what a judge has to do.

I certainly agree that Roe and Casey and all of the other decisions in this line are precedents of the Supreme Court. And they are entitled to respect under the doctrine of stare decisis. To the extent that some of the earlier decisions have been modified, then obviously the most recent ones are the relevant provisions of the Supreme Court.

I've agreed, I think, numerous times during these hearings that when a decision is reaffirmed, that strengthens its value as stare decisis. I agree that when the Supreme Court entertains a challenge to a prior decision and says, "We're not getting to a re-examination of the merits of the issue, we think stare decisis counsels against our going to that point," then that is a precedent on precedent. That seems to me to be entirely logical.

And we have a long line of precedents now relating to this issue. I have said that stare decisis is a very important legal doctrine and that there is a general presumption that decisions of the court will not be overruled. There needs to be a special justification for doing it, but it is not an inexorable command.

FEINSTEIN: But you do not agree that it is well settled in court?

ALITO: I think that depends on what one means by the term "well settled."

FEINSTEIN: I actually agree with you because others have said that and then gone out and voted to overthrow it. So it's like, "I have no quarrel with it."

ALITO: Well, let me just say this: As a judge on the court of appeals or if I'm confirmed as a justice on the Supreme Court, it would be wrong for me to say to anybody who might be bringing any case before my court, "If you bring your case before my court, I'm not even going to listen to you; I've made up my mind on this issue; I'm not going read your brief; I'm not going to listen to your argument; I'm not going discuss the issue with my colleagues. Go away. I've made up my mind."

That's the antithesis of what the courts are supposed to do. And, if that's what "settled" means, then I think that's not what judges are supposed to do. We are...

FEINSTEIN: Let me interrupt you for a moment, if I may.

You were willing to give your view on one man, one vote. And yet there are four case pending in the court right now on one man, one vote.

And that's where I have a hard time. The cases are LULAC v. Perry, Travis County v. Perry, Jackson v. Perry and G.I. Forum of Texas v. Perry.

That's where I have a hard time. If you're willing to say that you believe one man, one vote is well settled and you agree with it, I have a hard time understanding how you separate out Roe.

I understand why. If you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know.

ALITO: I don't think it's appropriate for me to speak about issues that could realistically come up.

And my view of Brown v. Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged, not within the legitimate scope of constitutional debate any longer that there should be facilities that are segregated on the basis of race.

ALITO: And that's where I've tried to draw the line. If an issue involves something that is in litigation, then I think it's not appropriate for me to go further than to say that I would be very respectful of the doctrine of stare decisis and I would not reach a decision on the underlying issue if one were to get to it without going through the whole decision-making process.

FEINSTEIN: OK, I'll let you off the hook on that one.

One of the reasons that some of us are so concerned about the commerce clause is because we see major law being overturned if the Rehnquist court continues its march. Let me give you an example in the environment. And these are cases that will be before you, so I don't expect you to comment on the case but to understand.

The Clean Water Act was passed in 1972, and it included a provision permitting citizens or citizen groups to bring lawsuits for violation of the act. In Public Interest Research Group of New Jersey v. Magnesium Elektron, a citizens environmental group sued a chemical manufacturer under the Clean Water Act for polluting a river used by members of the group.

The trial court found that the defendant committed 150 Clean Water Act violations. On appeal you were the decisive vote in a 2-1 decision overturning the trial court's decision, even though it was undisputed that the defendant committed the 150 violations of the Clean Water Act.

Your decision, as I understand it, was based upon your conclusion that the environmental group did not have standing to sue under the Clean Water Act because even though members of the environmental group had stopped using the river due to the pollution, they did not prove any injury to the environment.

The decision, if broadly applied, would have gutted the citizen lawsuit provision of the Clean Water Act.

Now, three years later, in Friends of the Earth v. Laidlaw, the Supreme Court, in a 7-2 decision, rejected this reasoning and held that a citizen only needed to show that he or she was harmed by the Clean Water Act violation. And didn't need to prove a broader injury to the environment.

FEINSTEIN: So you see where the concern comes with respect to overthrowing something on a technicality that can have enormous implications.

Do you agree with the Supreme Court's decision in Friends of the Earth v. Laidlaw.

ALITO: Well, it's a precedent of the court, and I have respect for it. And as you mentioned, it's governed by stare decisis, and as you mentioned, it was decided after the decision of my court in the Magnesium Elektron case, and I haven't gone back and thought about the question of whether Laidlaw creates doubt about the soundness of the decision in Magnesium Elektron.

If it does, then it does, and if the issue were to come up again before the 3rd Circuit, for example, and I sat on the issue, then I would follow Supreme Court precedent if I concluded that it was in conflict with the decision of a prior court of appeals decision.

Our jurisdiction under the Constitution is limited to cases and controversies. The Supreme Court has said that means you have to have a plaintiff who has suffered injury in fact.

And although there was a disagreement on the panel about the procedure we should use going forward, everybody on the panel agreed -- Judge Roth and I who were in the majority and Judge Lewis who dissented on a procedural point that I'll get to -- that the plaintiffs in that case had not even alleged personal injury.

They alleged that they enjoyed the Delaware River in a variety of ways. As I recall, they walked along the canal path, they ate fish from the river, they drank water from the river. But there was no evidence that the discharges into a creek some distance upstream from the river had had any effect whatsoever on the river and, therefore, there was nothing to support a claim that they were personally injured by the discharges of this plant.

ALITO: Now, there would presumably be other people who could take legal action against the plant for its violations of the law, and nobody would condone that. But our obligation under Article III is to confine ourselves to cases within our constitutional jurisdiction.

FEINSTEIN: Of course, you're going have two cases challenging the application of the Clean Water Act to nonnavigable waters under the commerce clause. And as you probably know, we have lost 90 percent of the wetlands in the United States. This is a very big deal.

And there are many of us that would hate to see wetlands be made virtually impossible because it's very difficult to prove when something becomes navigable as opposed to nonnavigable, which is the question before the court.

I only say that because if this march to restrict Congress, you could strike down the Endangered Species Act, you could strike down the Clean Water Act, you could strike down the Clean Air Act, and I think that would be catastrophic for the United States.

If I can, let me just switch to another topic. And a year ago, all of us became very concerned and involved and some horrified with the Terry Schiavo case.

As I recall the case, the local courts held that her life support could be turned off, the state supreme court held the same thing, and then there was an effort, and I think a federal district court held it to bring it up to the Supreme Court.

What do you believe the role of the federal courts should be in the arena of end-of-life decisions?

ALITO: There's a constitutional issue, certainly, at the bottom of that, and there are issues of jurisdiction. There are statutory issues. And Congress specifies the jurisdiction of the lower courts. And so Congress can give us a role in decisions of this nature or Congress can keep the federal courts out of it and leave it to the state courts where, for the most part, issues in this area have been adjudicated.

But if there is a federal constitutional right involved then, of course, the federal courts have traditionally been a forum for the adjudication of federal constitutional rights.

The underlying statutory, I'm sorry -- the constitutional issue is the one that the Supreme Court addressed in the Cruzan case and in the case of Washington v. Glucksberg.

And this is obviously one of the most sensitive issues that comes up in our legal system. It involves something that a lot of people have had to face and a lot more people are going to have to face, decisions involving the end of life.

ALITO: And with the advances in medical technology, this is going to be a very tough issue for an awful lot of people.

In Cruzan, the court proceeded on -- they said: We assume that there is a constitutional right to refuse medical treatment that a person doesn't want. And there certainly has long been a common law right to refuse medical treatment that a person doesn't want.

If somebody gives you medical treatment and you say I don't want it, and they perform an operation on you or do something like that, that's a battery under the common law and you can be sued.

And the Supreme Court assumed that that was a fundamental right under due process, but said that there wasn't a violation of the right under the circumstances in Cruzan, where the state of Missouri had imposed certain regulations that had to be complied with before a person who was comatose could be taken off life support.

And then in Washington v. Glucksberg, they addressed the issue of whether there was a constitutional right to assisted suicide, and they concluded that there was not but there were -- and they applied the standard to be applied under the due process clause for its substantive component, whether a right is firmly rooted in the traditions of our country and implicit in the concept of ordered liberty.

But there were some concurring opinions that recognized that these were issues that were on the cutting edge of medical technology -- let me put it that way -- or that they were issues on which more empirical evidence might become relevant in the future.

FEINSTEIN: Thank you very much.

I notice I just have 40 seconds left.

Will we have another round, Mr. Chairman?

SPECTER: Well, that's something that we'll talk about.

I would very much like to finish today.

SPECTER: As I said earlier, that may be an ambitious schedule, but let's talk about it.

FEINSTEIN: Thank you.

SPECTER: Senator Sessions?

SESSIONS: Thank you, Chairman Specter.

Judge Alito, I want to thank you for your patience and good spirit and your thoroughness in answering questions, and you've been very forthcoming. I think very few people could disagree that, on case after case that you've been asked about, you've gone as far as you legitimately should go to express your understanding of the law and what's important there.

I know your entire record has been examined extensively. You think about it -- the FBI does a background check, they found out every place you've lived and talked to your neighbors and checked your criminal histories and the Department of Justice has a big inquiry that they do before they submit your nomination to the president or the president submits your nomination to the Senate.

American Bar Association has interviewed 300 of your colleagues before they made their recommendation that you were a well-qualified in a unanimous vote.

The Senate has its questionnaire. Outside groups look at it and create studies and data. They read everything you have written to find things that they might be unhappy with.

And so I think all in all, you're coming through this with very little mud upon you, for which I congratulate you. I think it's something that you can be proud of. Most of us on this side of the aisle would not like to have our record scrutinized in the way yours has been.

I know some us have made mistakes in our statements already in the hearing that we have to admit. And I'll admit that I was one of them. I first said that you were ranked number four in being the most independent judge out of 900 judges in the country. As I see the numbers more clearly, you were number 4 out of 98 appellate judges examined in that system.

But that still shows that you're an independent, nonideological judge. One of the factors you used was whether or not you always agree with nominees of your party.

SESSIONS: I think that speaks well for your record, and that's why you've gained such a broad respect of your colleagues.

You know, just want to briefly mention some of these studies that go into your background. People have looked at it incredibly to the most minutest detail.

And you asked earlier about -- saying that you rule only one out of eight times for immigrants seeking asylum, but in looking at the asylum cases nationwide, most of those are -- the government's position is affirmed. It's already been decided by a lower court or administrative body. You're simply reviewing their decision.

But in immigrant asylum cases nationwide, the court of appeals generally rule for the asylum seeker 11 percent of the time. During your record on the bench, you ruled for asylum seekers 18 percent of the time. And in and your published opinions -- the average court of appeals judge in America ruled for immigrants 8 percent of the time; in your published opinions you rule for them 19 percent of the time.

So I think this not only shows the charges against you there are not well placed, it shows just how carefully your record is being examined by people as you move through the system.

Another example, civil rights. I think your critics have cherry- picked from some of your 4,800 cases that you've ruled on. In your opinions on civil rights, your panel was unanimous 90 percent of the time. And when you sat on a panel where both the other judges were Democratic appointees your decision was unanimous 100 percent of the time.

So I think that speaks well for your overall record on civil rights. Certainly it would indicate that you're not hostile to a legitimate civil rights complaint.

SESSIONS: You were asked about one environmental case by Senator Feinstein. And you ruled on that case based on standing. That's an important issue in the legal system. Don't you agree?

ALITO: It is.

SESSIONS: Well-recognized principle.

ALITO: It's a constitutional principle.

SESSIONS: It does not have to do with whether you were for or against the environmental issue in question but simply whether the person bringing the suit was a legitimate person to bring that suit.

ALITO: That's right. And it doesn't have anything to do with Congress' power to regulate the environment under the commerce clause. That's a separate question.

Congress -- it's totally separate. One has to do with the scope of congressional power; the other has to do with who can bring the suit.

SESSIONS: And with regard to environmental cases, you have rendered, according to one of these studies -- you've authored six environmental opinions; you sided with the environmental regulatory body in five of those six opinions.

Indeed, Professor Cass Sunstein, who had served as an adviser to the Democratic members of this committee on changing the ground rules of confirmation -- which was really a precursor to the commencement of a filibuster -- Professor Cass Sunstein said this about you, quote, "This is a judge who, if the text is pro-environment, he's very likely to follow it. This is not someone who, like some judges, has a kind of pro-business orientation in his approach to the law."

I think that's also a statement that you can take pride in. I would offer for the record, Mr. Chairman, another article by Stuart Taylor of the National Journal, Monday December 12, in which he, in a very effective way, dismisses much of the complaints that have been made against Judge Alito.

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

SESSIONS: This is his quote: "A systemic slanting, conscious or unconscious, of this and many other news reports have helped fuel a disingenuous campaign by liberal groups and senators to caricature Alito as a conservative ideologue. In fact, this is a judge who, while surely too conservative for the taste of liberal ideologues, is widely admired by liberals, moderates and conservatives who know him well as a fair-minded, committed to apolitical judging and wedded to no ideological agenda other than restraint in the exercise of judicial power," close quote.

SESSIONS: And I would offer that for the record.

Also, with regard to your challenges on Vanguard, on matters that have impacted your integrity, I would like to quote from the American Bar Association's interview questionnaires that they did on you among those who know you well.

This is what they put in their conclusion. "Conclusion: We accept his explanation and do not believe these matters reflect adversely on him." Talking about those conflicts allegations.

They go on to say: "To the contrary, consistent and virtually unanimous comments from those interviewed include, 'He has utmost integrity,' 'He's a straight shooter,' 'Very honest and calls them as he sees them.'" These are quote from different lawyers and judges.

"His reputation is impeccable." "You could find no one with better integrity." "His integrity and character are of the highest caliber." "He is completely forthright and honest." "His integrity is absolutely unquestionable." "He is a man of great integrity."

And then they conclude: "On the basis of our interviews with Judge Alito and with well over 300 judges and lawyers and members of the legal community nationwide, all of whom know Judge Alito professionally, the Standing Committee concluded that Judge Alito is an individual of excellent integrity."

So congratulations on that finding.

Judge Alito, many important decisions of the Supreme Court in recent years touch on the deepest values of the American people. They deal with things like Kelo and the property that they own, matters of faith and morality, decency and pornography.

SESSIONS: Do you have a sense of where the American people are with regard to these issues? Can you indicate to us that you have any appreciation for legitimacy of some of those concerns?

ALITO: Well, I do, Senator.

SESSIONS: Regardless of the technical laws it involves, but just that fundamental policy.

ALITO: I think I have an appreciation of people's concerns -- certainly with respect to Kelo, which is a recent decision and I can't comment on how I would rule on any matter concerning that; and it involves the power to take property for public use through eminent domain.

I certainly understand that what occurred in that case which, as I understand it, was the taking of the homes of people of modest means for the purpose of building a large commercial facility that was thought by the city to be beneficial to the economic welfare of the city, that this is an enormous blow to the people whose homes are being taken.

People live in homes and they have a sentimental attachment to them. They have memories that are attached to the homes. They can remember what happened in particular rooms. The neighborhood means something to them. The neighbors mean something to them. The things in the home mean something to them.

And taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people.

So I certainly can appreciate what they feel in that respect.

SESSIONS: Well, let's talk about that a little bit, because this is a matter of real power and it's a matter that the Congress gets drawn into sometimes whether we want to be drawn into it or not.

We've discussed Roe v. Wade. People remain concerned about that. The polling numbers continue to drift against that decision.

We talk about the district court opinion. I believe Senator Brownback raised federal court on marriage, on redefining the traditional statutory definition of marriage contained in states and in state constitutions around the country.

In Kelo, it's pretty clear to me that the court just changed the meaning of the words.

SESSIONS: The Constitution said you could take property for public use. The court felt that was too restrictive, basically, and a majority just changed it to say you could take property for a public purpose, which includes some private redevelopment of the area in their minds.

See, that's not founded in the Constitution. That's an overreach, in my opinion.

On the Pledge of Allegiance case, the Neubauer (ph) case, the 9th Circuit, which includes 40 percent of the people in the United States, ruled that the Pledge of Allegiance was unconstitutional.

The Supreme Court sort of sidestepped the fundamental issue and said that there was not standing on behalf of Mr. Neubauer (ph) and sent that back to a lower court. He now got him some plaintiffs that apparently have standing. He's taken it to the District Court in California, and he's won that case.

They've concluded, and the 9th Circuit law remains in effect, so that 40 percent of the population of the United States really are not able, if you follow that opinion, to render the Pledge of Allegiance.

Yet, we have chaplains and "In God we trust" in the Senate chamber and those kind of issues.

So I don't believe that that is founded in the Constitution. I think the American people do not. And they are asking some real questions of us.

So I guess I won't try to get you drawn into those.

But I want to do this. The doctrine of judicial review, Marbury v. Madison -- you already indicated Hamilton didn't favor that. But the court found that it's not expressly stated in the Constitution, is it?

ALITO: No, it's not.

SESSIONS: And it definitely shifts the balance of power between the branches, because the court now has the power to, by a stroke of its pen, five of its nine members to strike down any law they say violates the Constitution.

That's true, is it not?

ALITO: They decide constitutional questions, and the doctrine has been established since Marbury v. Madison. That's right.

SESSIONS: But they're in explicit powers given to the Congress. And Senator Coburn raised some of those, Article III, Section 2 has these words: "In all of the other cases before mentioned" -- this is a constitutional grant of power to the courts -- "the Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as the Congress shall make." Now those words are in the Constitution, are they not?

ALITO: Yes, they are.

SESSIONS: And as you said, if the words are expected to have some meaning, you would give them some meaning, at least, would you not?

ALITO: I think that's undisputed, that they have a meaning.

SESSIONS: And so Congress has some power here. We've not exercised that power and certainly in recent years. In Ex Parte McCardle, the Supreme Court in 1869 agreed that though the judicial powers conferred by the Constitution is conferred under such exceptions as Congress shall make.

Then there is the impeachment power. The good senator mentioned that. And then the establishment of lower courts -- Article III, Section 1 says the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time establish. That indicates that Congress can establish or disestablish courts, does it not?

ALITO: I think it's undisputed that the so-called inferior courts -- and I don't particularly like the term as a judge of court of appeals -- but the so-called inferior courts are totally the creation of Congress.

SESSIONS: I'll just ask you to comment on this thought. Chief Justice Roberts in his hearings, and I asked him some questions similar to this, indicated that he was concerned about activism by the court, overreaching by the court, and he felt that this overreaching created a danger that it could undermine respect for law in our country.

SESSIONS: Do you share that view?

ALITO: I agree that overreaching by the courts can undermine respect for law. Our authority is based on the belief that what we are doing is different from what Congress is doing, because otherwise why would people tolerate our functioning? Nobody elects us. And we have a system of government that is fundamentally democratic. It's based on the sovereignty of the people. So how do you explain an unelected branch of government making decisions?

So all of our authority is based on the idea which was expressed in Marbury v. Madison that the Constitution is law. It's not conceptually different from statutory law. And our job is to interpret the Constitution, it has a meaning, and you apply it to the situations that come up.

SESSIONS: Well, right now there is a strong feeling, that I share, that the court on some very important issues that people care deeply about is exceeding its authority. They're calling on me and those of us in Congress to do something about it. I got a lot of letters saying, "Withdraw jurisdiction? Why aren't you supporting legislation to do that?"

And Congress, I think, has shown restraint. But I hope that when you become a member of this august body, the Supreme Court, and I believe you will, that you will take those concerns with you and share with the members of the court that their views on policy issues are of no greater value than mine, frankly, at least in my opinion they're not, and that the Congress has been showing some restraint here. But we really want the court to be more modest and to draw back from some of its intervention and policy issues that are causing much angst around the country.

You want to comment on that?

Otherwise, Mr. Chairman, I would yield my time.

ALITO: Well, Senator, I think your policy views are much more legitimate than the policy views of the judiciary because members of Congress are elected for the purpose of formulating and implementing public policy and members of the judiciary are appointed for the purpose of interpreting and applying the law.

SESSIONS: Thank you very much.

SPECTER: Thank you, Senator Sessions.

We will now stand in recess until 4:20.

(RECESS)

SPECTER: The hearing will resume.

And we now turn to Senator Feingold for 20 minutes.

FEINGOLD: Thank you, Mr. Chairman.

Good afternoon, Judge.

I hope, if nothing else, you associate me with breaks in the proceedings, because it seems to happen every time my questions are up.

Judge, yesterday I asked you about your preparation for these hearings over the past few months with a variety of practice sessions. You confirmed that you had had these sessions and that a great variety of subjects came up in them, and that's fine. I know this is not an easy process, and I would certainly expect you to prepare in this way.

What I want to ask now, though, is simply if you can provide a list of all the people who participated in any of those practice sessions? And I would request that the folks here sitting behind you and back at the Department of Justice help you put that list together this evening and get it to us tomorrow morning so that we have time to ask about it during tomorrow's session, if necessary.

Can you do that for me judge?

ALITO: I certainly have no objection to that.

FEINGOLD: Thank you very much.

Now, I want to get into a subject that really requires some attention here and hasn't had much attention, given the important role it plays in the job of Supreme Court justice, and that is the issue of capital punishment or the death penalty.

Judge Alito, the idea that defendants are entitled to effective legal representation is a fundamental part of our criminal justice system. In fact, of course, it's enshrined in the Sixth Amendment's guarantee that the accused have, quote, "the assistance of counsel for his defense," unquote.

Nowhere is this guarantee obviously more important than in cases where the defendant's life is on the line. In a death penalty case you decided in 2004 called Rompilla v. Horn, you rejected the defendant's argument that his attorneys had failed to do an adequate investigation to prepared for his sentencing hearing. As a result, key mitigating evidence about his horrible childhood was never presented to the sentencing jury which ultimately sentenced him to death.

FEINGOLD: As you know, the Supreme Court reversed your decision, ruling that the defense attorney's failure to even review evidence they knew the prosecution was going to introduce at sentencing violated the Sixth Amendment.

This case was one of several Supreme Court cases in recent years to express particular concern -- particular concern about the adequacy of indigent representation and the fairness of the capital sentencing process.

In fact, in several recent decisions, including Rompilla, the court has overturned death sentences because defense attorneys did not do adequate investigations to turn up potential mitigating evidence and because jury instructions did not clearly allow jurors to consider any and all possible mitigating evidence.

And Justice O'Connor, who you have been nominated to replace, has of course often been the author or the deciding vote in these cases.

Judge, what are your views on these issues? Is the court's recent emphasis on the importance of fully developing and considering mitigating evidence in capital sentencing proceedings headed in the right direction?

ALITO: It is vitally important that all criminal defendants receive effective representation, and I could not agree with you more strongly that this is of the utmost importance in death penalty cases where so much is at stake.

In the Rompilla case that you mentioned, we had to apply the standard of review that is set out in the habeas corpus statute as revised by Congress. And where there has been a determination on the merits by the state courts on an issue like whether a defendant receives effective representation within the meaning of the Sixth Amendment and where the state courts have applied the correct legal standard, we are not allowed to disturb their decision unless what they did was unreasonable.

FEINGOLD: Well, let me ask you, then, because you're obviously pointing out the fact that you approached the Rompilla case as an appellate court judge bound by prior Supreme Court precedent, and yet you found that no constitutional violation had occurred.

And I believe when we discussed this case in my office, you indicated you still think your decision was correct.

So the question now is would your approach have been any different as a Supreme Court justice? What about your decision on the outcome of the case?

ALITO: Well, my decision -- and I spoke directly to the issue in the Rompilla case as I saw it when it came before me, and my evaluation of the performance of the attorneys in that case was fully set out in the opinion that I wrote.

ALITO: One of them was a very experienced criminal defense attorney. He was the head of a public defender's office. And there was no dispute whatsoever that this was an attorney of competence and experience and great dedication to the defendant in this case.

And that attorney was assisted by another attorney in the office and, together, they were extremely dedicated to this case.

Now, a number of judges took a look at this. All of the Pennsylvania judiciary, with the possible exception of one justice -- I can't remember clearly whether there was one justice who disagreed -- thought that there had been effective representation provided in this case.

FEINGOLD: But this really isn't about the difference between being on the Court of Appeals and the Supreme Court. You apparently would have, based on what you know here, would have ruled the same way had you been on the Supreme Court.

ALITO: Well, my evaluation of the facts of the case would be the same. Now, if...

FEINGOLD: In other words, if there was not a violation of Sixth Amendment?

ALITO: But I should add, however, that if a case came up in the future, the Supreme Court's decision in that case is a precedent that I would have to deal with. And they...

FEINGOLD: Fair enough.

ALITO: ... expressed the view as to how the standard applies to the facts of the case. It was a 5-4 decision. But it would be a precedent that I would follow.

FEINGOLD: Well then let's go back to my original question, which is: Do you think the Supreme Court has been heading in the right direction in these cases?

ALITO: I think that the Supreme Court is correct in viewing this as a very important part of the criminal justice system and in particular a very important part of the representation of clients in Eighth Amendment cases.

FEINGOLD: Isn't the court doing more than that? The court is moving in a direction of giving greater recognition and ruling on the inadequacy of counsel in these cases?

ALITO: And I think it's entirely appropriate that there be a searching review in every case as to whether a defendant in any criminal case but in particular, of course, in a capital case, has received the representation that the defendant is entitled to under the Sixth Amendment.

FEINGOLD: Do you think your replacing Justice O'Connor will change the direction of the court in this regard?

ALITO: I would approach these cases under the law that the Supreme Court has established in this area with the recognition that I've attempted to explain of how important I believe this right is in all cases and in death cases in particular.
When the Supreme Court reviews a case that's come up through the federal system in a habeas proceeding, then the Supreme Court, just like my court, should apply the standards that are set out in the habeas corpus statute.

FEINGOLD: Let's go to a different one. Wiggins v. Smith is a Supreme Court case decided in 2003 also addressing inadequate mitigation investigation. In that case Justice O'Connor, writing for the majority, found trial counsel ineffective for failing to conduct an adequate investigating into possible mitigating evidence that could be presented at sentencing.

Had the attorney done adequate investigation, he would have found abundant evidence of childhood physical and sexual abuse, as well as diminished mental capacity.

Do you think that case was rightly decided?

ALITO: I discussed Wiggins in Rompilla, and I thought that it was distinguishable. Wiggins, as I recall it, was a case where the attorney simply didn't conduct an investigation, without any sound strategic reason for not investigating a particular matter.

FEINGOLD: So you have no sense that that was wrongly decided?

ALITO: I have no sense that that was wrong. I thought it was different from the Rompilla case.

FEINGOLD: According to two independent studies, your record in death penalty case has been more anti-capital defendant even than most Republican-appointed judges. In fact, in every disputed capital case that you heard -- that is, cases in which a panel of three judges did not all agree -- you would have ruled against the defendant.

How do you explain this seeming tendency to favor the government in capital cases?

ALITO: I've only sat on a handful of capital cases, and in some of them I voted to uphold the death penalty and in a number of them I voted to strike down the death penalty. In Carpenter v. Vaughn, I voted to strike down the death penalty.

In the most recent death penalty case I sat on, the Braunstein case, I voted to strike down the death penalty because of the procedure that was followed at the penalty phase in that case.

In the Cruzan case, I was part of a panel that vacated a decision of the district court rejecting the claim of a habeas petitioner. There have been other cases where I voted to uphold the death penalty.

FEINGOLD: Justice Stevens recently gave a speech at the American Bar Association in which he raised a number of serious concerns about the administration of the death penalty.

FEINGOLD: He pointed to aspects of capital proceedings that he believes unfairly tilt the balance in favor of the prosecution, both at the trial and sentencing stages.

Specifically, he raised concerns about the jury selection process, arguing that jurors are questioned so extensively about the death penalty that they might assume their role is primarily to decide the sentence for a presumptively guilty defendant.

He also argued that representation of indigent defendants remains an issue that has not been adequately addressed. And he noted that elected state judges may have a, quote, "subtle bias," unquote, in favor of death because they have to face re-election.

Now, I know all of us on this committee have the greatest respect for state court judges, but we all can understand the pressures of a re-election campaign.

So, what are your views on the potential of these three issues -- the jury selection, the inadequate representation and an elected judiciary -- to skew a capital prosecution against the defendant?

And do you share these concerns that Justice Stevens outlined?

ALITO: I certainly share a concern that there should be a fair procedure for the selection of jurors. That certainly is a concern.

The issue of the election of judges at the state level or the appointment of judges at the state level is a matter for state legislatures to decide.

And, within my circuit, we have three states. In New Jersey and in Delaware, the state judiciary is appointed. In Pennsylvania, the state judiciary is elected.

And I've had the opportunity to view the work of all three of the supreme courts in those states and I think they all are of a very high quality.

I think the elected judges in Pennsylvania do a conscientious effort to carry out their responsibilities. And I have a high regard for the judiciary in all of those states.

So, based on my experience, I think you can have highly competent and, certainly, conscientious state judges who are appointed and the same sort of judges who are elected.

And, of course, we do have habeas corpus. And it is important to make sure that constitutional rights are respected.

ALITO: And the scope of the review that we conduct under habeas is up to Congress.

Congress reformulated the standards in AEDPA, in the Antiterrorism and Effective Death Penalty Act of 1996, limiting our review, and it is our obligation to conduct the kind of review that Congress has indicated we should be conducting.

FEINGOLD: Judge, it sounds like you perhaps have a lesser level of concern about some of these matters than Justice Stevens. The only thing I would note is one of the most striking things about the history of justices that have gone to the court sometimes who are pro death penalty, an amazing number have come to the conclusion that this is the one area where once they get there, they realize that these problems are much more severe than they might have thought before they became Supreme Court justices.

Should you be confirmed, I look forward to how you react to these issues after you have become a Supreme Court justice, should you do so.

In the past few years, the Supreme Court has limited the application of the death penalty based on the Eighth Amendment's ban on cruel and unusual punishment. In Atkins v. Virginia, the court ruled that mentally retarded inmates cannot be executed. And in Roper v. Simmons, it held that individuals who were minors when they committed capital crimes cannot be executed as punishment for their actions.

Do you agree with these decisions?

ALITO: Those decisions applied the standard that the Supreme Court formulated sometime earlier in determining whether the imposition of the death penalty on particular categories of defendants would violate the Eighth Amendment and they looked to evolving standards of decency. And that is a line of precedent in the Supreme Court, and those are precedents of the Supreme Court, and they're entitled to the respect of stare decisis.

FEINGOLD: Can you just tell me what your general approach to the Eighth Amendment would be in the context of the death penalty?

ALITO: My approach would be to work within the body of precedent that we have. As I mentioned earlier, the Supreme Court has devoted a lot of attention to this issue since 1976 when it held that the death penalty is permissible provided that adequate procedures are implemented by the states so that the decision about who receives the death penalty and who does not is not arbitrary and capricious, so that there is a rationality to the selection process. And the rules in this area are quite complex. But I would work within the body of precedent that is available.

FEINGOLD: Let me go to a topic we've talked about before. We had a good discussion of the recusal issue in the Vanguard case yesterday, and I hadn't intended to ask more about it, but your discussions with Senator Kennedy and Senator Hatch today make further questioning a little bit necessary.

Senator Hatch noted that the committee's questionnaire asked about financial conflicts of interest during the period of your initial service as a judge. Now, the reason for wording the question like that, of course, is that nominees have no way of knowing when they are up for confirmation whether they will have the same investments five, 10, 25 years later.

The committee obviously can't ask for a comprehensive list of possible future financial conflicts. So, for example, if you have stock in Microsoft and you list that as a financial conflict on your questionnaire, you still have to recuse yourself from a Microsoft case 15 years later if you still have the stock. Isn't that right?

ALITO: If you're required to recuse yourself, if you have stock in Microsoft, even one share...

FEINGOLD: You still have to recuse yourself even if it's 15 years later, right?

ALITO: Certainly that's true.

FEINGOLD: So the Senate questionnaire about financial investments is not time limited based on the question being about initial service on the court, is it?

ALITO: Well, I want to be clear on my answer respecting this as it bears on the Monga case, the Vanguard case, because that's what we're discussing.

The wording of the Senate questionnaire was not the reason for the way I handled the case.

FEINGOLD: No, I accept that.

I just want to know if there's any -- you have any question in your mind why the question is phrased that way in the questionnaire?

ALITO: Reading the question, it does seem to me that an initial period of service is a temporal limitation.

FEINGOLD: I want to be sure we don't leave the impression from these hearings that people don't have an obligation to recuse themselves from a financial conflict just because of the passage of time. You've already indicated if that financial conflict continues, that's an indefinite and permanent restriction until that financial holding is gone. Isn't that correct?

ALITO: Absolutely.

And that's under the Code of Judicial Conduct, Canon 3C(3) I think it is. If you have a financial interest, you must recuse yourself, and that's of course a continuing obligation.

FEINGOLD: It's not temporal?

ALITO: The obligation to comply with the code of conduct for federal judges applies to every federal judge for as long as they serve.

FEINGOLD: OK. And that's why I have to say that I'm a bit frustrated that people are trying to obscure what I think was pretty clear testimony by you yesterday by bringing up this period of initial service issue.

In response to Senator Kennedy, you made it clear again that your failure to recuse in the Vanguard case had nothing to do with the suggestion that your promise was time limited.

But I want to get this on the record again. And hopefully, this will lay any confusion to rest.

This idea that your promise to the committee was somehow limited to your initial service on the court, that was not the reason you failed to recuse yourself from the case in 2002, was it?

ALITO: It was not the reason in 2002.

I do think reading the question, it has a temporal limitation. If that wasn't the intent, I think people could read it -- certainly, when you say initial period of service, people will read that to mean...

(CROSSTALK)

FEINGOLD: This has nothing to do with why you didn't recuse yourself?

ALITO: It did not have to do with what I did in the Monga case.

FEINGOLD: And it's not as if you noticed that Vanguard was a party, remembered your promise to the committee, and then made a specific decision not to recuse because the promise had expired?

ALITO: No. It was not that at all.

FEINGOLD: And you finally added Vanguard to your standing recusal list in December 2003 and it's on your list today -- isn't that right?

ALITO: It is on my list today.

FEINGOLD: Do you plan to recuse yourself from Vanguard cases that come before the Supreme Court as long as you keep your Vanguard mutual funds?

ALITO: Well, if I'm confirmed, I will very strictly comply with the ethical obligations that apply to Supreme Court justices. Supreme Court recusals are a bit different from recusals in the court of appeals. And so the obligation to sit when you're not recused is one that has to be considered very seriously by somebody on the Supreme Court or, I would think, on a state supreme court, for example.

FEINGOLD: Is there any question, if still have holdings in Vanguard and a case comes before the Supreme Court, that you should recuse yourself?

ALITO: Well, under the Code of Judicial Conduct, I don't believe that I am required to recuse myself in Vanguard cases. And I would strictly comply with the ethical obligations that apply to a Supreme Court justice.

FEINGOLD: But you're not going to make a promise here that you're not going to rule on Vanguard cases while you have holdings in Vanguard when you're on the Supreme Court?

ALITO: Well, what I want to say about recusals on the Supreme Court is that the decision-making process on the Supreme Court or any court with a fixed membership, a fixed number of jurists who sit on each case, recusal in that situation affects the decision-making process, because instead of having nine justices, you have eight; you have the potential for a tie.

On the court of appeals, that is a much less significant consideration because we always sit in panels of three, we have many judges on our court and many cases. So if I don't sit on a case involving Vanguard, it just means somebody else will sit on the case involving Vanguard. It will still be decided by a three-judge panel.

FEINGOLD: I would add on that point that that may be true, but it's also true that the Supreme Court is the last stop, and if somebody doesn't recuse himself, there's really no remedy. And that is why it's so important that somebody would recuse themself.

ALITO: It is very important for somebody on the Supreme Court to fulfill, strictly, the obligation not to sit when the person should not sit. But it's also important for -- given the matters that I just discussed -- for a justice to sit if the justice is not required to recuse.

FEINGOLD: Judge, my time is up.

Mr. Chairman, we don't yet have the communication from Judge Alito to the clerk on December 10, 2003, that caused Vanguard to be added to his standing recusal list.

And whether that was an e-mail or a form that Judge Alito filled out or something else, we've requested it. So, I'm just asking for the assistance of the chairman in getting that document so we can complete the record.

SPECTER: Senator Feingold, we'll take a look at it and see what the facts are.
FEINGOLD: Thank you.

Return to Part I. Part III of the transcript continues here.

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


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