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

CQ Transcriptions
Wednesday, January 11, 2006 5:34 PM

The transcript picks up with the testimony of Sen. Lindsey Graham. To return to Part II, click here.

GRAHAM: Thank you, Mr. Chairman.

Judge Alito, maybe we could continue with the Vanguard issue just for a moment. And I know you've been asked every conceivable combination of questions.

But Senator Feingold is very sincere about ethics in government. He practices what he preaches and he's been one of the leaders of trying to make this place operate better.

And my impression of you is that you're a good model for judges in terms of ethical conduct, based on what everybody says who knows you. I mean, I don't claim to be a close associate of yours, but the ABA has looked at this and said that it did not reflect poorly on you.

Three hundred lawyers and judges who know you have said that you're just, really, sort of, what we want in a judge. And maybe that's not enough, but that's a pretty good start.

I don't think you could get 300 people to say that about me or some of us. But the question I have -- the criminal prosecutor or lawyer in me has this question to ask -- why would you make a conscious decision not to recuse yourself?

Why would Judge Alito sit down in the corner of a room and say, I think I've got a conflict, but I'm just going to let it go and hear the case anyway?

GRAHAM: I am baffled as to why you would make a conscious decision in this situation not to recuse yourself. Do you have an explanation?

ALITO: There's no reason why I would make such a conscious decision. I had nothing whatsoever to gain by participating in this case and nobody has suggested that I did.

This case involved some thousands of dollars. Vanguard manages billions of dollars of funds. The idea that the outcome of this case could have some effect on the mutual funds that I hold is beyond preposterous, and I don't understand anybody to have suggested anything like that.

GRAHAM: Well, I've been asking myself that question quietly. What is in it for this guy? Why would he bring all this grief upon himself consciously? Is it to intentionally break a promise to the Senate so you'd go through hell for three days? I don't think so.

(LAUGHTER)

So I'm going to accept you at your word, like the ABA, and I'm going to move on. And I don't know if anybody else will.

Now, your days at Princeton. The more I know about Princeton, it's an interesting place.

(LAUGHTER)

What is an eating society?

ALITO: The eating clubs are privately owned facilities that upper classmen join for the purpose of taking their meals. The first two years, when I was there -- the situation is now a bit more diversified as far as eating is concerned -- but when I was there, and traditionally the freshmen and sophomores ate in university dining halls. And then, as juniors and seniors, they had to find other places to eat, and these were private facilities.

GRAHAM: What is a selective eating society?

ALITO: It's one where you apply to be a member, like a fraternity, and you go through a process that is somewhat similar to that, and they select you if they like you.

GRAHAM: Were you a member of a selective eating society?

ALITO: No, I was not.

GRAHAM: Did people not like you or you just didn't apply?

(LAUGHTER)

ALITO: I didn't apply.

GRAHAM: Well, let me tell you who did apply. Donald Rumsfeld was a member of a selective eating society at Princeton. And that's an interesting comment, I thought. Woodrow Wilson. Jim Leach, good friend of mine over in the House.

Mitch Daniels, the governor of Indiana, was a member of a nonselective eating society. Senator Claiborne Pell was a member of nonselective eating societies.

And other Princeton alumni who are members of Congress could not verify their participation or lack thereof in eating clubs, including Senator Sarbanes, Bond, Frist and Representative Marshall.

GRAHAM: And I promise you I'll get to the bottom of that before this is all done.

(LAUGHTER)

Now, this organization that was mentioned very prominently earlier in the day, did you ever write an article for this organization?

ALITO: No, I did not.

GRAHAM: OK.

And some quotes were shown, from people who did write for this organization, that you disavowed. Do you remember that exchange?

ALITO: I disavow them. I deplore them. They represent things that I have always stood against and I can't express too strongly...

GRAHAM: If you don't mind the suspicious nature that I have is that you may be saying that because you want to get on the Supreme Court; that you're disavowing this now because it doesn't look good.

And really what I would look at to believe you're not -- and I'm going to be very honest with you -- is: How have you lived your life? Are you really a closet bigot?

ALITO: I'm not any kind of a bigot, I'm not.

GRAHAM: No, sir, you're not. And you know why I believe that? Not because you just said it -- but that's a good enough reason, because you seem to be a decent, honorable man. I have got reams of quotes from people who have worked with you, African American judges -- I've lost my quotes.

Judge Higginbotham -- I don't know where they're at. But glowing quotes about who you are, the way you've lived your life; law clerks, men and women, black and white, your colleagues who say that Sam Alito, whether I agree with him or not, is a really good man.

You know why I believe you when you say that you disavow those quotes? Because the way you have lived your life and the way you and your wife are raising your children.

Let me tell you this: Guilt by association is going to drive good men and women away from wanting to sit where you're sitting. And we're going to go through a bit of this ourselves as congressmen and senators.

People are going to take a fact that we got a campaign donation from somebody who's found out to be a little different than we thought they were -- and our political opponent's going to say, "Aha, I got you!"

And we're going to say, "Wait a minute. I didn't know that. I didn't take the money for that reason."

And you know what? I'm going to believe these senators and congressmen for the most part, because that's the way we do our business. We meet people here every day. We have photos taken with people -- and sometimes you wish you didn't have your photo taken.

But that doesn't mean that you're a bad person because of that association.

Judge Alito, I am sorry that you've had to go through this. I am sorry that your family has had to sit here and listen to this.

Now let's talk about another time not so long ago -- and another judge and some of her writings -- and see if the Senate is changing for the better or for the worse.

GRAHAM: Justice Ginsburg, who I need to go have a cup of coffee with because I constantly bring her up and I do not dislike the lady; I admire her.

But let's put it bluntly, under today's environment, from a conservative's point of view, she would have a very hard time because Justice Ginsburg was the general counsel for the ACLU from 1973 to 1980.

And if you want me to tar somebody by their association, I can put up some pretty wild cases from my point of view where she was involved.

But you know what? I respect her because her job as an attorney for the ACLU is to represent the most unpopular causes.

And as far as I can tell during her time with the ACLU, she was honest, she was ethical and she fought for the most unpopular causes. And, for that, I respect her.

But you've put some things down on an application about your view of the law in Roe v. Wade and it's taking an unbelievable effort on your part, I think, to convince people that, when I was a lawyer, I did this, when I applied for a job, I was doing this, and as a judge, I will do this.

Here is what Justice Ginsburg said in an article she wrote titled, "Some Thoughts on Autonomy and Equality in Relationship to Roe v. Wade."

"The conflict, however, is not simply one between a fetus' interest and a woman's interest narrowly conceived, nor is the overriding issue state versus private control of a woman's body for a span of nine months. Also, in the balance is a woman's autonomous charge of her full life's course, her ability to stand in relation to men, society and to stay as an independent, self-sustaining equal citizen."

She wrote further, "As long as the government paid for childbirth, the argument proceeded public funding could not be denied for abortion, often a safer and always a far-less expensive course short and long term. By paying for childbirth but not abortion, the government increased spending and intruded upon or steered a choice Roe had ranked as a woman's fundamental right.

"The public funding of abortion decisions denying a requirement of public funding appear incongruous following so soon after the intrepid 1973 ruling. The court did not adequately explain why the fundamental choice, principle and trimester approach, embraced in Roe did not bar the sovereign at least at the pre-viability stage of pregnancy from taking sides and being required to provide funding for the abortions of poor women."

If that writing doesn't suggest an allegiance to Roe, that writing doesn't suggest from her point of view as the author of that article not only is Roe an important constitutional right, that government ought to pay for abortions in certain circumstances.

GRAHAM: If she were here today and a Democratic president had nominated her and we take on the role that our colleagues are playing against you, not only would she not have gotten 96 votes, I think she would have been in for a very rough experience.

And what's changed? Justice Ginsburg openly expressed a legal theory about Roe v. Wade. My question to you: If I am arguing a case that would alter Roe v. Wade, would I have the ability because of her prior writings to ask her to recuse herself based on those writings alone?

ALITO: I don't think you would, Senator. I think it is established that prior writings of a member of the judiciary do not require the recusal of that member of the judiciary.

GRAHAM: I think you're absolutely right, Judge. And let me tell you what she said at the hearing when it was her time to sit where you're sitting. "You ask me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity. It is a decision that she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices."

A sentiment I think our pro-choice colleagues share, a sentiment that I disagree with because I think the decision does affect humanity, and that's the unborn child.

I don't question her religion. I don't question her patriotism. She gave an answer that was very honest and was very direct.

And pro-life Republicans and pro-life Democrats never thought about disqualifying her. She didn't go through what you went through. Pro-life Republicans and pro-life Democrats set her comment aside and judged her based on her whole record and believed she was worthy to sit on the Supreme Court and she got 96 votes.

And what you've said in your writings about the other side of the issue pales in comparison to what she said before she came to this body. I don't know how many votes you're going to get. You're going to get confirmed. And it's not going to be 96. Judge Roberts got 78, and I'm afraid to say that you're probably going to get less.

To my colleagues, I know abortion is important. It's important to me. It's important to you. I know it's an important, central concept in our jurisprudence. But we can't build a judiciary around that one issue.

GRAHAM: We can't make judges pledge allegiance to one case. We can't expect them to do things that would destroy their independence. You can vote yes; you can vote no; you can use any reason you would like.

I just beg my colleagues: Let's don't go down a road that the country can't sustain and the judiciary will not be able to tolerate.

People set aside her writings, set aside her candid statement and gave her the benefit of the doubt that she would apply the law when her time came. She replaced Justice White.

We knew that that vote was going to change. I don't think any Republican had any doubt that, if there was a Roe v. Wade issue, she would vote differently than Justice White. But you never know.

The one thing I can tell the public about you and John Roberts is that you're first round NFL draft picks, but I don't know what you're going to do 10 or 20 years from now because I think you are men of great integrity.

And I may be very well disappointed in some of your legal reasoning, but I'll never be disappointed in you if you do your job as you see fit.

The last thing I'm going to read -- do you know Cathy Fleming?

ALITO: I do. She was an attorney and supervisor in the U.S. Attorney's office in New Jersey.

GRAHAM: Did you ask her to write a letter on your behalf?

ALITO: I did not, no.

GRAHAM: "Judge Alito did not ask me to write this letter. I volunteered."

(LAUGHTER)

I'm glad you said that, by the way.

(LAUGHTER)

"I'm a lifelong Democrat. I am the president-elect of a national women's bar association. I chaired the corporate integrity and the white collar crime group at a national law firm.

"I do not speak on behalf of either my law firm or the women's bar association. I speak for myself only. But, by providing my credentials as an outspoken women's rights advocate and liberal-minded criminal defense attorney, I hope you will appreciate the significance of my unqualified and enthusiastic recommendation of Sam Alito for the Supreme Court.

"Sam possesses the best qualities for judges. He's thoughtful; he's brilliant; he's measured; he's serious; and he's conscious of the awesome responsibilities imposed by his position.

"I cannot think of better qualities for a Supreme Court justice. It is my fervent hope that politics will not prevent this extraordinary, capable candidate from serving as associate justice on the United States Supreme Court."

GRAHAM: I share her hope.

Thank you. I yield back my time.

SPECTER: Thank you, Senator Graham.

Senator Schumer?

SCHUMER: Thank you, Mr. Chairman.

Thank you, Judge Alito.

First I want to go over some of the things you said yesterday. Judge Alito, you testified yesterday that you'd keep an open mind. Isn't that right?

ALITO: I did and I do.

SCHUMER: Now are you aware of any nominee in the history of the republic who has come before the Senate and testified he'd keep a closed mind?

ALITO: I'm not aware of that. But I can only speak for myself.

SCHUMER: Of course.

ALITO: I will keep an open mind on all issues.

SCHUMER: You also testified yesterday that no one, not even the president, is above the law. Right?

ALITO: That's certainly true.

SCHUMER: Yes.

And are you aware of any nominee in the history of this republic, of whatever political philosophy, judicial philosophy or denomination, who has come before the Senate -- party denomination -- and testified that, actually, there are a few people who are above the law?

ALITO: I'm not aware of a nominee like that, Senator.

SCHUMER: Me either.

And you also testified that the court should have respect for the Congress. Isn't that right?

ALITO: Yes.

SCHUMER: Know of any nominees who came before the Senate and said, "The heck with you guys; I don't have any respect for the Congress"?

ALITO: Senator, I can only speak for myself and those are true expressions of what I think.

SCHUMER: I know that. But all I want to say is -- and I don't doubt your sincerity in saying them -- but this morning's newspapers were filled with headlines to the effect you would keep an open mind.

I don't find that really to be news, nor do I find it very helpful in figuring out what kind of justice you would be.

My friends on the other side of the aisle have repeatedly said you've answered over 200 questions. Now it's probably 300. But a response is not an answer. And you've responded to more than 300 questions but, in all due respect, you haven't answered enough of them.

And so, again, I think we ought to make clear that, at least to many of us here, we haven't gotten the answers to questions, yes or no, on some important issues.

SCHUMER: And with that, I'd like to return to Roe, a question, something we discussed yesterday at some length.

You did say yesterday that you'd keep an open mind. You said first you'd look at stare decisis and then you'd keep an open mind after going through stare decisis.

But when I asked you questions about your prior statements to see if you would keep an open mind, so I could make a determination, so the American people could make a determination, you really didn't answer the question.

Now, we've heard pledges about having an open mind before. I want to read you one. It's another hearing; someone who sat in your chair.

"I have no agenda, Senator. I have tried here, as well as in my other endeavors as a judge, to remain impartial, remain open-minded, and I am open minded on this particular issue."

I'll bet you can guess who that nominee was. It's Clarence Thomas on the issue of the Constitution and the right to choose, very issue I've asked you about, when he sat in that chair 15 years ago.

So someone pledging an open mind doesn't tell us very much because I think there are a lot of people on this committee who were surprised -- I wasn't there -- were surprised by how Judge Thomas ruled based on his testimony. Didn't tell them enough.

Now, yesterday, as you know, I asked you whether you believe today that the Constitution protects the right to an abortion, given that in 1985 you flatly said that it doesn't and you didn't answer that question.

Then I asked you whether the Constitution protects the right to free speech and you said yes.

Then I asked how could you answer one and not the other. And your answer as to why you could discuss one and not the other was essentially that the words "free speech" appear in the Constitution but that -- and this is your words -- the issue of abortion has to do with the interpretation of certain provisions in the Constitution, the 14th Amendment.

Now, yesterday, as you know, I asked you whether you believe today that the Constitution protects the right to an abortion, given that in 1985 you flatly said that it doesn't and you didn't answer that question.

Then I asked you whether the Constitution protects the right to free speech and you said yes.

Then I asked how could you answer one and not the other. And your answer as to why you could discuss one and not the other was essentially that the words "free speech" appear in the Constitution but that -- and this is your words -- the issue of abortion has to do with the interpretation of certain provisions in the Constitution, the 14th Amendment.

SCHUMER: Now, Judge Alito, the words "one person, one vote" are not in the Constitution. You know that.

And yet you said yesterday and I think you repeated today to Senator Kohl and maybe Senator Feinstein as well, but what you said yesterday was, quote, "I think that one person, one vote is very well settled now in the constitutional law of our country."

So you were able to answer on the basis of something as to whether it's settled, not being in the -- the words are not in the Constitution. But you were queried by a few of my colleagues and you had a different explanation.

Now, you said you can answer on the other issues because it's settled law; it's not going to come before the court.

So let's go over settled law a little bit.

In case after case, you have been telling us -- you have been comfortable telling us that certain cases are settled and yet you won't use that word with respect to Roe. You've done it in a host of other cases and issues. I'll read a few.

So, "I think that one person, one vote is very well settled now in the constitutional law of our history" in response to Senator Kohl.

"The status of independent agencies I think is settled in the case law." That was in response to Senator Leahy.

"But I do think that most of those commerce clause cases in the years preceding Lopez, the ones that come to mind I think are well settled precedents," reference to Senator Feinstein.

"I think the scope of immunity that the attorney has is now settled by Mitchell v. Forsyth, and that's the law."

So can you answer the question? Is Roe settled or not?

It's less of a concern which way you answer. I just would like you to answer the question.

You can say: Roe is not settled; Roe can absolutely be re- examined. I think a lot of people think that's the answer you want to give but it's controversial. And you may not want to give it because it's controversial, even though some of these other issues will come before the court.

Commerce clause cases will come before the court. Certain types of one man, one vote cases will come before the court. Certain types of administrative agencies will come before the court.

SCHUMER: So, why is it only when it comes to Roe, you can't tell us whether it's settled, whether it's not settled or how it is settled. And you can pick any formulation you want.

Other judges have commented on Roe being settled and Lindsey Graham pointed out -- he's not here -- but Ruth Bader Ginsburg talked about her view and she still got a lot of votes on the other side of the aisle. Same might happen to you.

So, the question, Judge Alito...

(LAUGHTER)

The question, Judge Alito, is: Why won't you talk to us about Roe in terms of whether it's settled or not when you will about so many other issues, even issues that would come before the court?

ALITO: The line that I've tried to draw -- and I've tried to be as forthcoming as I can with the committee. I've tried to provide as many answers as I could. And, obviously, I'm speaking here extemporaneously in response to questions. The line that I have tried to draw is between issues that I don't think realistically will come before the court and on those I feel more freedom to respond. And one person, one vote is an example.

SCHUMER: Sorry to interrupt, but we have limited time. What about commerce clause? Raich came to the court a couple years ago. Raich has roots all the way back in Wickert v. Fillburn.

You talked about commerce clause cases being settled.

ALITO: Well, it depends on which commerce clause cases you are talking about. Certainly, the initial commerce clause cases that moved away from the pre-New Deal understanding of the commerce clause have been on the books for a long time.

Maybe I have been more forthcoming than I should have been in some areas. And, if that's the case in providing these extemporaneous answers, I can be faulted for that.

But the line that I have to draw, and I think every nominee, including Justice Ginsburg, has drawn, is to say that, when it comes to something that realistically could come before the court, they can't answer about how they would decide that question.

ALITO: That would be a disservice to the judicial process.

SCHUMER: I understand your view. I just think there are inconsistencies there, and I would argue you ought to err on the side being more forthcoming. This is the last chance we and the American people will have to make a decision before a lifetime appointment.

I want to move on to another issue, also related to Roe. Now, you did say that in 1985 you believed that the Constitution did not protect the right to an abortion. And at that time you were a mature legal mind. You were 35. You were already a federal prosecutor. You were serving in the Solicitor General's Office. You had a pretty good understanding of the Constitution. You had argued cases related to Roe before the Supreme Court, I think 12 times by 1985. So you were a well-seasoned, mature, established legal mind at that time. Is that fair to say?

ALITO: Well, Senator, most of what you said is certainly correct, but I had not argued any case involving Roe v. Wade before the Supreme Court.

SCHUMER: You argued 12 cases before the Supreme Court. Sorry.

ALITO: Yes, that's correct.

SCHUMER: OK. Now, let me ask you this. When you wrote that statement, you did not -- as we discussed yesterday -- when you wrote that the Constitution does not protect the right to an abortion, you had no exceptions. So that would mean, at least in 1985, your view then, there would be no constitutional protection for a woman to terminate her pregnancy even if the termination was needed to preserve her future ability to have children, right?

ALITO: Senator, it was a general statement that didn't go into -- it didn't...

SCHUMER: But it had no exceptions. You didn't make that...

ALITO: It was one sentence, and it certainly didn't represent...

SCHUMER: There was no -- you didn't write any exception for that situation. Correct? It just said the Constitution does not protect. It was without exception. And, yesterday, you didn't argue me when I mentioned that without exception.

ALITO: I don't recall your using the words without exception.

SCHUMER: I think I did.

(CROSSTALK)

SCHUMER: If you believe...

ALITO: Could I just answer that question? It's one sentence and it certainly is not an attempt to set out a comprehensive view of the subject.

SCHUMER: No, I understand that. But it was a very strong statement. It didn't talk about any exceptions at all. And the way I read that statement, even if a woman was raped by her father, she'd have no constitutional protection to have an abortion and terminate that pregnancy. If you believe the Constitution protects no right to an abortion that would follow, wouldn't it?

ALITO: I think the statement speaks for itself, and it's one sentence and it's not an effort to set out a comprehensive view of...

SCHUMER: Knowing these examples, do you still refuse to distance yourself in any way from a broad, unqualified statement, without exception, that the Constitution does not protect the right to an abortion? No ands, ifs or buts, is my words.

ALITO: What I actually said was that I was proud of my participation in the Thornburg case in which the government made the argument that it made in the Thornburg case...

SCHUMER: But you said in the previous sentence to that statement that you personally held those views.

ALITO: That's correct. But what I was talking about there was the Thornburg case and nothing more than the Thornburg case.

SCHUMER: I understand. But you haven't rethought the position at all, even knowing these extreme cases and the hardship that it might cause?

ALITO: Well, what you have pointed out is exactly why, if the issue were to come up, and one were to get beyond stare decisis, the whole judicial decision-making process would have to be gone through.

SCHUMER: You didn't think that through in 1985?

ALITO: I was not involved in...

SCHUMER: When you wrote the statement. When you wrote that statement.

ALITO: And when I wrote the statement what I was saying was that I was proud of what I had done in relation to the Thornburg case, which was to write the memo that the committee is aware of, which did not argue that Roe should be overruled, did not argue that the government should argue that Roe should be overruled, but that the decision should be challenged on other grounds that were quite similar.

SCHUMER: I understand what you wrote, but you also -- we can bring the statement up here, but I don't want to go over the thing of yesterday. I would just ask you to think of all the consequences of a broad statement, even from 1985, that the Constitution does not protect the right to abortions. Not an exception of health of the mother, not an exception of rape or incest, not an exception of any of these others.

SCHUMER: I didn't see any of those in your job application. But I want to conclude on...

ALITO: Senator...

SCHUMER: Go ahead, please.

ALITO: It was one sentence. And I think what you're saying highlights the importance of not addressing this until the judicial process takes place where all of this complexity would be taken into account.

SCHUMER: In all due respect, sir, I think it highlights the importance of an obligation to discuss it, particularly in light of a strong statement before.

But we'll have to differ on that.

I want to go back to the CAP issue in conclusion, because some of the statements just don't add up and I just want to try to figure this out a little better.

You graduated from Princeton in 1972. I'm just going to state -- to save us a little time -- a time a series of facts here. You filled out the application to apply for the job in the Reagan administration in 1985 where you mentioned membership in that group.

Now, is it fair to say you joined some time around 1972?

ALITO: I think that's very unlikely.

SCHUMER: Unlikely.

ALITO: Very unlikely.

SCHUMER: When do you -- you have no idea when you joined?

ALITO: I don't. But if I had done anything substantial in relation to this, including renewing membership or being a member over a lengthy period of time, I feel confident that I would remember that.

SCHUMER: OK. So you don't remember renewing membership, writing out a check at a certain time, getting a magazine -- this Prospect magazine --once a month, once a quarter, once a year? You have no recollection of any of that?

ALITO: I don't.

SCHUMER: OK.

Well here's what the -- and let me just ask you one other question. I take it, in 1985, you were a member of a whole lot of different groups. I mean, you were a member of the Bar Association. You might have been neighborhoods -- you're a neighborhood guy. I respect that. Maybe the neighborhood association in New Jersey where you lived. Maybe other Princeton alumni organizations.

In your 1990 application, there are a bunch of other organizations you list as being members of. So you were members of a whole lot of groups?

ALITO: I was a member of some other groups, not a whole lot of them.

SCHUMER: OK. A bunch. More than two?

ALITO: Some other groups.

SCHUMER: Yes. OK.

Here's what I don't understand. I think here's what a lot of people don't understand. You're a member of other groups, you hardly have any recollection of this organization. And yet, somehow, in 1985, you put it on your application.

Why did you? Why did you list that particular organization on your application when you have such vague recollection of it? Why didn't you put the American Bar Association or one of the other groups that you were a member of?

It wasn't a long list where you were trying to list -- you somehow plucked this group, which you now say you have almost no recollection about, and put it on the application. And this group, as we've heard, is controversial.

Just try to give us some understanding of your state of mind in 1985. Why that group, with its tawdry history, even public then -- although you said in all fairness you didn't know about it -- but why that group? Why was it plucked out and put on the application?

ALITO: Well, I deplore all of those statements that were shown on the chart.

SCHUMER: Understood.

ALITO: I would never associate myself with those...

SCHUMER: What made you pick that group?

ALITO: ... statements?

SCHUMER: I understand. I'm not trying to do that.

ALITO: I think you have to look at the question that I was responding to and the form that I was filling out. I was applying for a position in the Reagan administration. And my answers were truthful statements, but what I was trying to outline were the things that were relevant to obtaining a political position.

ALITO: I mentioned some very minor political contributions.

I didn't mention contributions to charitable organizations. And that's not because the contributions to charitable organizations were unimportant. It's just that...

SCHUMER: Well, can you reach back, because it is an important an important issue now -- it's become one -- and try to figure out your state of mind then and what made you pick this organization?

I mean, I see why you picked the Federalist Society. That's obvious. Why did you pick this one?

ALITO: Well, Senator, since I don't remember this organization, I can't answer your question specifically.

But I think that the answer to the question lies in the nature of the form that I was filling out and the things that I put, I think the illustration of the political contributions goes right to the point.

Why did I mention small political contributions and not charitable contributions? It wasn't that the charitable contributions were less important. It was that they were not as relevant to obtaining a political position.

SCHUMER: Why didn't you put it on your application in 1990?

ALITO: I didn't remember it.

SCHUMER: But you remembered it from 1972 to -- or whenever you joined to 1985, formed in '72 -- why I think you probably joined earlier is because of what you said about ROTC which is a much bigger issue in its early history than its later history.

And you remember that. You remember it up until '85 and then by 1990, you had forgotten it.

Let me just say, I'm glad -- this is by way of explanation. That's why Senator Kennedy made his request. I'm glad, Senator Specter, that you have acceded to it.

I think there are unanswered questions here that we really have an obligation to answer. And maybe -- maybe -- the documents we get will give us some of those answers.

Thank you, Mr. Chairman.

ALITO: Well, Senator, I have told the committee everything that I can about this organization. And the most important thing I want to tell the committee is that I have no association with those comments that were made, even if they were made in letters to the editor or in articles that simply represented the views of the authors of those articles.

ALITO: They're not my views now; they never were my views. They represent things that I deplored. I have always deplored any form of racial discrimination or bigotry. I was never opposed to the admission of women to Princeton. After I had been there for a few months I realized the difference between the non-coeducational atmosphere that was there and the coeducational atmosphere that I had had throughout my prior schooling. When it came time for me to join an eating facility, I choose one that was one of the most coeducational facilities on the campus.

SCHUMER: I just can't figure out why you put this group on.

SPECTER: Senator Schumer your time is up, Senator Schumer.

Senator Cornyn?

CORNYN: Judge Alito, let me tell you how desperate your opponents are to defeat your nomination. Late last Wednesday or excuse me, last Thursday, a name of a witness was listed relative to this whole issue of Concerned Alumni at Princeton that included the name of a man named Steven Dujack. Does that name familiar to you?

ALITO: Not other than from seeing a witness list.

CORNYN: Well, by the end of the day on Friday, his name was gone from the witness list of those witnesses intended to be called by the other party.

As it turned out, it was revealed that in April of 2003 that he had authored an op-ed piece for the Los Angeles Times entitled "Animals Suffer A Perpetual Holocaust." And in that article he wrote this, he said, "like the victims of the Holocaust, animals are rounded up, trucked hundreds of miles to the kill floor and slaughtered.

"Comparisons to the Holocaust are not only appropriate, but inescapable because whether we wish to admit it or not, cows, chickens, pigs and turkeys are capable of feeling loneliness, fear, pain, joy, and affection as we are. To those who defend the modern day Holocaust on animals by saying animals are slaughtered for food to give us sustenance, I ask: If the victims of the Holocaust had been eaten would that justify the abuse and murder?

"Did the fact that lamp shades, soaps and other useful products were made from their bodies excuse the Holocaust? No. Pain is pain."

Judge Alito, I read that to point out to you the desperation of your opponents. This was to be a principal witness who was going to come in and say why your membership in Concerned Alumni of Princeton was a terrible thing. But the fact is, that I think they have stumbled by their overreaching, by demonstrating the desperation that they feel and how few ways they have to criticize your testimony, your career, your integrity and who you are as a person based upon the facts. And I think it speaks volumes.

It's clear to me, at least, that part of the reasons or the rationale given for a no vote against you by some on this committee and perhaps on the floor of the Senate will be that you have not been responsive to questions.

We have a chart here that I think is instructive. This is as of 3 p.m. on day two -- we couldn't get any more current than that. But as this indicates, so far in this hearing, you have answered -- or 441 questions have been asked and 431 have been answered, or 98 percent.

Justice Ginsburg -- and we've heard a lot about her and what she would answer and would not answer, and what her philosophy was, her beliefs, before she was confirmed by the Senate with only three votes. She had 384 questions asked and she answered 307 of those, for an 80 percent answer rate.

You know, listening to the back and forth about whether you've been responsive to questions reminds me of a saying that I heard recently. I can answer the question, but I can't understand it for you.

In other words, I think you've done to the best of your ability and to the limits of your ethical responsibility, tried to be responsive to the questions here.

Obviously, no one can make that decision but the senators who will ultimately vote on that. But certainly the public and the world, people all across this great country, who may be listening to this hearing and will be judging for themselves both the fairness of the proceeding and your responsiveness to the questions, I believe, that they will conclude that not only have you been responsive, but that you have been very forthcoming in answering the questions that have been asked of you, but that like Justice Ginsburg and others before her, you believe that it's important to maintain the independence of the judiciary, that you're not willing to make the judiciary subservient to the Senate or the Congress in order to get a vote for confirmation.

CORNYN: And I applaud you for that.

You know, yesterday I made a mistake. I know Senator Sessions confessed a mistake, and as it turned out I went over and talked to Senator Biden, because I quoted him, and it turned out I didn't quite quote him accurately. But I told him we've corrected the record to make sure it reflected his words, because it's important to me to make sure that we're accurate and we're clear.

But yesterday I made a mistake and referred to you as Judge Scalito, and I was embarrassed by that, and I beg your pardon for that.

And for those who may not be in on the joke, I mean, the idea is the argument by some is somehow you're a clone of Judge Scalia.

Well, I've found for myself everything we've heard, everything I've come to learn about you is that you're a clone of no one, that you're an individual who is particularly gifted and talented and experienced and someone who is, notwithstanding the abuse that you suffer during the confirmation process, willing to offer yourself for public service in a very important role. And that is as a member of the United States Supreme Court.

But yesterday I heard my colleague from New York put up some quotes. Now, it was late in the day. And I think most of the press had gone, and maybe that's a good thing. People had gotten tired, but you had to still sit here and listen to the questions and respond to those.

But he put up a quote, which was relatively innocuous on its face, and it asked about things like: Do you believe that continuity in the law is important? And you said yes. And it seems unarguable to me. But then he said: Well, that was a quote from Clarence Thomas.

CORNYN: And I suppose that was going to attribute to you all of the baggage that those on the left feel that Justice Thomas carries and all of the views that he has espoused and all of his performance on the bench.

Later he asked whether you agreed with another quote -- and here again it was a sort of black letter law, good government quote. And you agreed that, yes, you agreed with that quote. And he said, "Aha! Judge Bork said that" -- meaning somehow that you are carrying whatever baggage people on the left feel that Judge Bork carries and you somehow embrace or subscribe to everything he believes.

I want to give you an opportunity, Judge Alito, to tell us whether you feel like you're a clone of Judge Scalia, Judge Thomas, Judge Bork, or whether you believe that you are your own man, you come to your own conclusions based on careful study and your experience in the law.

Would you comment on that for me, please?

ALITO: Yes, Senator. I am who I am. And I'm my own person. And I'm not like any other justice on the Supreme Court now or anybody else who served on the Supreme Court in the past.

I don't think any jurist is a duplicate of any other jurist.

I think that the committee and anybody who's interested in the sort of judge I am can get a very clear picture of that by looking at my record on the court of appeals. And I've been on the Court of Appeals for 15 years and have sat on over 4,000 cases.

And most of the cases that come to the court of appeals never go any further. We're the last stop in 99 percent of the cases -- probably higher than that. And we know that when we're deciding those cases.

ALITO: And I think, if anybody reads the opinions that I've written and the opinions that I've joined, they can see exactly the sort of jurist that I am.

They will find some opinions, I'm sure, that they will disagree with but, if they look at the whole set of opinions that I've written or joined, they can get a very clear picture of me.

And I'm not like anybody else. I don't claim to have the abilities of some of these distinguished members of the Supreme Court now or in the past. I have whatever abilities that I have. But they are my own.

CORNYN: Let me tell you what Cass Sunstein has said about you. You may be familiar with an op-ed piece that was written in the Akron Beacon Journal on November the 3rd, 2005.

This is -- of course, you know Professor Sunstein from the University of Chicago, a brilliant and liberal legal scholar. But he concludes in this op-ed -- and this is how he describes you based upon his review of your life's work as a judge.

He said, "Alito sits on a liberal court" -- and this is an analysis of your dissents -- "Alito sits on a liberal court, so his dissents can be from relatively liberal rulings. None of Alito's opinions is reckless or irresponsible, or especially far-reaching.

"His disagreement is unfailingly respectful. His dissents are lawyerly, rather than bombastic. He does not berate his colleagues. Alito does not place political ideology at the forefront.

"He doesn't claim an ambitious or controversial theory of interpretation. He avoids abstraction. He has not endorsed the view associated with Justices Antonin Scalia and Clarence Thomas that the Constitution should be interpreted to fit with the original understanding of those who ratified it.

"Several of his opinions insist on careful attention to governing legal texts, but that approach is perfectly legitimate, to say the least."

Judge Alito, I think it's important for people who are listening to understand that you are, indeed, your own man, and that you do the very best job that you can with the skills and the talents God has given you -- and that you're willing to serve.

And we ought to respect and applaud you for that.

And it is really, to me, demeaning to suggest some sort of guilt by association or that you must be a clone of some other judge or someone who outside groups hold up to disrespect and ridicule.

So I hope that, as I say, those listening -- both in the Senate and outside -- will make up their mind about you based upon the evidence that we've heard, and it's available, and not based on those sort of specious comparisons.

CORNYN: Now let me ask, you know, believing as I do that you have been responsive and expecting as I do that those who vote against you will claim that you've been nonresponsive -- notwithstanding the chart I showed you and your willingness to respond to the questions.

You know, Senator Schumer, who's an enormously talented and very bright lawyer in his own right, was pressing you on whether Roe v. Wade is settled.

And, you know, I've really tried to analyze for myself when is it that judges and nominees are willing to go out on a limb, so to speak, and say yes, that's settled law, or to talk more expansively about an issue? And when is it that they feel less comfortable, less free, more constrained by their ethical obligations or their desire to preserve the independence of the judiciary?

And what I've concluded -- and I'd like to get your reaction to this -- is the more settled, to use the word Senator Schumer has, the more accepted in the society and our culture, the more free nominees feel to talk about it.

But the more a nominee feels like this is an issue that not only is going to come back, it's going to come back soon -- as a matter of fact, it may be on the court's docket now -- the less free, the more bound by your ethical obligations you feel, the more you feel it's important to preserve your independence as a judge.

And we've mentioned a couple of them. Brown v. Board of Education, which expresses a commitment to equal justice under the law that all Americans embrace -- virtually speaking. You felt free to express a view on that case, have you not, sir?

ALITO: I have. The line I've tried to draw is whether something realistically could come up in litigation before the Court of Appeals or before the Supreme Court.

CORNYN: Does that mean that you don't expect Brown v. Board of Education to be attacked or someone to come before the court and ask that it be overruled?

ALITO: I don't. There's no realistic possibility of that, so I felt freer to talk about something like that.

CORNYN: But you do believe, and I think with good cause, that there will be continuous attempts to address the abortion issue because of its divisive nature and because Americans are so divided on that issue, or at least some aspect of the issue.

To what extent, for example, can the Congress pass laws which ban the barbaric practice of partial-birth abortion? To what extent can Congress or the states pass laws that provide for minors to seek -- requiring them to provide their parents notice, with an appropriate judicial bypass for those who are abused or neglected or abandoned by their parents?

That is an issue that is at the forefront of America's consciousness, and really, I think, sort of the subtext under which a lot of the wars over judicial nominations are fought.

Would you agree with that more or less?

ALITO: It's an issue that is in litigation now, and I think you can look at the course of litigation over the past 20 years and you can see a number of cases -- and, of course, this has been highlighted -- in which the Supreme Court has been asked to overrule Roe and it has repeatedly refused to do that.

But there's nothing, there's no comparable pattern, for example, with respect to Brown v. Board of Education or one person, one vote.

CORNYN: Well, in the closing two and a half minutes that I have, I mentioned the Cass Sunstein op-ed which, from my reading, even though I'm sure you and Professor Sunstein don't see eye-to-eye on all legal issues, he seems to be highly complimentary of you, is the way interpreted those two paragraphs I read out of the op-ed piece.

Now, a national newspaper, The Washington Post, on January the 1st -- that's The Washington Post, not National Review -- did an analysis of your voting record on the 3rd Circuit. They found that in virtually every type of case, whether labor, employment, you name it, that your record was no different than the average Republican- appointed judge.

And to me that is -- said another way, that means that you're within the conservative mainstream in terms of your judicial philosophy.

Now, I know that you and other legal scholars have some trouble with this approach by political scientists to try to survey your opinions and categorize them and say, well, this is who you are -- because you don't decide cases that way, do you? You decide individual cases based upon the legal arguments, the merits and the facts.

CORNYN: Isn't that correct, sir?

ALITO: That's right.

And it would be a bad thing if judges started keeping these score cards and said, "Oh, I've ruled a certain number of times in favor of one side; when the next case comes up, I better rule on the other side."

That's exactly what we don't want judges to do.

CORNYN: You anticipated my next question and that would be, if somehow it disqualifies you because of how political scientists have somehow ranked your sympathy with certain types of cases, how often you ruled in favor of one type of litigant and another as opposed to an individual case-by-case decision-making process contemplated by the Constitution, I doubt it will be long before prospective nominees to the federal judiciary will be keeping that kind of chart.

And when litigants come into court they're going to be tempted to look at that and say, "Well, I've ruled for too many plaintiffs; I better rule for a defendant this time," or, "I've shown too much sympathy for civil rights plaintiffs; I better rule for the government this time," which would totally skew your responsibility as a federal judge, in my view.

Judge Alito, my time has run out. Thank you for your response to my questions.

ALITO: Thank you, Senator.

SPECTER: Thank you, Senator Cornyn.

We'll take now another break for 15 minutes.

I've had requests from two senators on the Democratic side for a third round. We have three more senators to question on the 20-minute round.

LEAHY: We have several more than the...

SPECTER: Well, Senator Leahy, that's what I'd like to ascertain so that we can figure out the schedule for the balance of the evening. We have one hour more for three senators at 20 minutes.

I want to figure out what we're going to do the rest of the evening. But I want to figure out when we're going to bring on the outside witnesses who...

KENNEDY: Mr. Chairman?

SPECTER: ... are available tomorrow.

So if there are other requests, I'd like to have them.

But now we'll stand in recess until 5:55.

(RECESS)

SPECTER: We'll proceed now to the last three senators who have not had a second round of 20 minutes, Senator Durbin, Senator Brownback and Senator Coburn.

As I mentioned before, I've had requests from two senators for a third round. Senator Leahy advises that there are others. And I'd like the specification.

Senator Biden is prepared to proceed, has requested 20 minutes, and is prepared to proceed. Senator Feinstein has requested 10 minutes, and she has a doctor's appointment, so she won't be able to be here this evening. And we will accommodate her on that.

But I would like to know who else wants time so we can plan what we're going to do for the balance of the evening and hereafter. I've had requests on my side of the aisle as to whether we're having a Friday session, and I've had a request as to whether we're having a Saturday session. And I told both of those requesters to stand by.

And I do piece (ph) work, so I'm here for the duration.

Senator Leahy?

LEAHY: Mr. Chairman, I've been told that each one of the people on this side want another round. I know I want to look at the transcript this evening, and I will have a few more questions.

Obviously you can do what you want. I mean, Judge Alito has shown he has the stamina of Hercules. I'm not sure that all the rest of us do. Senator Coats is hanging in there. But he's able to bail out now and then.

I would suggest you finish with the senators who are here tonight. That would get us out of here around 7 or a little later. Come back in the morning. This is very similar to what we did with Chief Justice Roberts. Come back in the morning. I have a feeling that whatever rounds it takes, we could probably wrap it up in relatively expeditious order, but then we wouldn't be looking like we're trying to ram this through. It is a lifetime appointment, after all. We'd get it done. I think most of the outside witnesses have been told that they were going to testify on Friday anyway, in all likelihood.

I mean, that's what I suggest.

SPECTER: That's not true. There are people who can't be here on Friday among the outside witnesses who are looking at Thursday.

LEAHY: Well, they may -- who knows -- we'll probably wrapped up in time that we can get him in here some time Thursday.

SPECTER: Well, Senator Leahy...

LEAHY: It's up to you.

SPECTER: The only way we'll know what's going to happen -- I want to know who wants more time, so I can see what's going to go on tomorrow, if we're going to go beyond Senator Feinstein tomorrow.

We had this exact same situation with Chief Justice Roberts. And we worked on into Wednesday evening and then we got an understanding as to what we're going to do on Thursday.

LEAHY: Well, we're into Wednesday evening already. So, I mean, we've done...

SPECTER: Why don't we proceed with our three witnesses so as not to spend any more time and, if I could have the advice from you, Senator Leahy, and from Senator Kennedy, who are here, Senator Durbin has 20 minutes. He probably has more time than he needs.

LEAHY: I've yet to find a situation in this committee, Mr. Chairman, that you and I haven't been able to work things out because you have always been eminently fair.

SPECTER: OK, well, to put all the cards up on the table, the only compelling force, if there is such a thing as a compelling force with senators, is to figure out how to avoid working this evening by telling me what you want to do tomorrow. That's a fairly simple formula.

LEAHY: Who is the leader, Mr. Chairman, who once said moving -- moving the Senate around is like transporting bullfrogs in a wheelbarrow.

SPECTER: Senator Baker, who is the author of the "Herding Cats."

Senator Durbin, you're recognized for 20 minutes, to be on with it.

DURBIN: Thank you very much.

And, Judge Alito, if I'm not mistaken this is how we started the day. I think we're now into about our 8 1/2 hours which means we're both on overtime by any measurable standard of the workplace in America.

Thank you for your endurance and to your family as well. I know it's a stressful and tough situation.

Let me say at the outset, I asked you a question earlier today about settled law and John Roberts's statement before the committee. I've spoken to one of your cornermen over here, Mr. Gillespie. He and I have a difference of opinion about what it says in the record.

DURBIN: I commend to my colleagues the record itself, September 13th, 2005, page 145, and I stand by my earlier statement. Enough said about that.

I want to ask you about two substantive issues. We're not going to go to Princeton or any other place.

Unitary executive: The reason it's important is that there are some people, even on the Supreme Court, who believe the unitary executive theory -- I don't know if it's always associated with the Federalist Society but sometimes associated with the Federalist Society and their members -- but the unitary executive theory gives the president extraordinary power.

And under that scope of power theory, some argue that a president, particularly in A war time situation can ignore and violate laws as commander in chief. Critically important and timely, as we debate eavesdropping and the like.

You have made it clear that when you spoke to the Federalist Society in 2000, you were not talking about scope, but you were talking, instead, as to whether or not he would have control over the executive branch. I hope I'm characterizing your statement correctly.

ALITO: That's exactly correct. And I think in the speech I said there's a debate about the scope of what is meant by the executive power, but there isn't any debate that the president has the power to take care that the laws are faithfully executed, and that was the scope of the power I was discussing.

DURBIN: My question to you is this, what about those who do argue the unitary executive scope theory? Do you agree with their analysis? Do you disagree? Would you be joining Justices Scalia and Thomas, Justice Thomas in particular in his dissent in Hamdi, in arguing that this situation a president has more power than the law expressly gives him?

ALITO: I don't think that the unitary executive has anything to do with that. Let me just say that at the outset. And if other people use that term to mean the scope of executive power, that certainly isn't the way that I understand it.

DURBIN: That's not your point of view. You don't accept that point of view.

ALITO: No, I think...

DURBIN: If an argument is made that that's how they're going to expand the power of president, as you testified today, that's not your position or your feeling -- say it in your own words.

ALITO: When I talk about the unitary executive, I'm talking about the president's control over the executive branch, no matter how big or how small, no matter how much power it has or how little power it has.

To me, the issue of the scope of executive power is an entirely different question and it goes to what can you read into simply the term executive. That's part of it.

Of course, there are some other powers that are given to the president in Article II, commander in chief power, for example, and there can be a debate, of course, about the scope of that power, but that doesn't have to do with the unitary executive.

DURBIN: So when Hamdi draws that line and Justice O'Connor makes that statement about no blank check for a president in times of war when it comes to rights of American citizens and there's an dissent from Justice Thomas who argues unitary executive, scope of powers, more power to the president, you are coming down on the majority side and not on the Thomas side of that argument.

DURBIN: Is that fair to say?

ALITO: Well, I'm not coming down -- I don't recall that Justice Thomas uses the term of unitary executive in his dissent. It doesn't stick out in my mind that he did. If he did, he's using it there in a sense that's different from the sense in which I was using the term.

DURBIN: Fair enough.

Let me move to another area. I hate to return to that infamous 1985 memo, but there's one elements of it we've really not asked you about, and that is your reference to the establishment clause. So instead of going into that memo, let me just try to explore with you for a moment your feelings about religion.

You've heard some questions about religion in our diverse society under the Constitution. You've heard some questions from the other side about it, from Senator Brownback, Senator Cornyn and others. And I would like to try to get into this a little bit.

There seems to be a debate within the court between two standards for judging conduct as to whether it's constitutional in relation to freedom of exercise of religion, as well as establishment. And the two theories, if I can describe them quickly, are the Lemon theory, which has three tests, that the Burger court came out with in 1971, and the new coercion theory.

Are you familiar with both of those theories?

ALITO: I am. And there's actually a third theory, the endorsement test.

DURBIN: Where do you come down? So you subscribe to any one of those as an accurate analysis of what the founding fathers meant under the establishment clause?

ALITO: I don't think the court has settled on any single theory that it applies in every case. There are cases in which it finds the Lemon theory, the Lemon test, which now has two parts, whether the statute has -- whether whatever is at issue has a secular purpose and whether the primary effect is to advance or inhibit religion. There are instances in which it applies that. It tends to apply that in cases involving funding.

There is the endorsement test, and it applies that in certain cases. Typically, it applies those in cases involving things like the displaying of symbols that have religious significance.

So it itself has not found a single test that it applies in all of these cases.

DURBIN: Well, where are you? If the court is divided, and it appears it is, where do you come down? Please tell me.

ALITO: Well, I do not myself have a grand, unified theory of the establishment clause. As a lower court judge, of course, my job has been to apply those precedents. And this is an area in which I think the court has been -- you can just see by the number of cases that it has decided, it has been attempting to find the best way of expressing its view of what the establishment clause requires.

ALITO: I certainly agree that it embodies a very important principle and one that has been instrumental in allowing us to live together successfully as probably the most religiously diverse country in the world and maybe in the history of the world. It's a very important principle. But I, myself, do not have a grand unified theory of this.

DURBIN: Let me ask you a few starting points: The question was asked of John Roberts about his personal, religious and moral belief. And I would ask you, in the most open-ended fashion.

We all come to our roles in life with life experience and with values. When you are calculating and making a decision, if you were on the Supreme Court, tell me what you are personal, religious, or moral beliefs -- what role that will play in that decision process.

ALITO: Well, my personal religious beliefs are important to me in my private life. They are an important part of the way I was raised and they have been important to Martha and me in raising our children.

But my obligation as a judge is to interpret and apply the Constitution and the laws of the United States and not my personal religious beliefs or any special moral beliefs that I have.

And there is nothing about my religious beliefs that interferes with my doing that. I have a particular role to play as a judge. That does not involve imposing any religious views that I have or moral views that I have on the rest of the country.

That is virtually the same answer given by Justice Roberts. And I think, from my point of view, that is the right answer. It's the same challenge many of us face on this side of the table with decisions that we face.

Now, I asked Judge Roberts the following: Does the free exercise clause, in addition to the establishment clause -- does it protect the right of a person to be respected in America if they have no religious beliefs -- the nonbelievers?

ALITO: Yes, it does. It is freedom to worship or not worship as you choose. And compelling somebody to worship would be a clear violation of the religious -- the religion clauses of the First Amendment.

DURBIN: Let me go to a specific case: Black Horse Pike Board of Education case, which you were involved in. And it's an interesting case. And I hope this fact pattern I described to you is correct.

The school board policy allowed the seniors at this school to vote on having a graduation prayer. And the decision was suggested whether that was coercing students who didn't agree with that religious prayer or had no religious belief.

What is your feeling or what was your feeling at that time when it came to that decision?

ALITO: Well, that was a case that followed Lee v. Weisman and preceded the Santa Fe case which dealt with a prayer before a football game. Lee v. Weisman involved a situation in which the principle -- and that was the most directly relevant and a rather recent precedent at the time of the Black Horse Pike case.

In Lee v. Weisman, the principal of a middle school, as I recall, decided that there would be an invocation at the middle school graduation and selected a member of the clergy, a local rabbi, to deliver the prayer and specified the nature of the prayer that would be appropriate for the circumstances. The Supreme Court held that that was a violation of the establishment clause.

The case that we considered in the Black Horse Pike case involved a situation in which the high school left it up to the students through an election to decide whether there would be a prayer at the high school graduation and left it up to them to select the person who would conduct the prayer, the student who would lead them in the prayer, if they decided by a vote to do that.

So our job at that point was to decide whether this fell on one side or the other of a line that I referred to earlier which Justice O'Connor very helpfully -- the distinction that she drew between government religious speech, which is not allowed, and private religious speech, which is protected. The government itself cannot speak on religious matters, but the government also can't discriminate against private religious speech. And what you have here...

DURBIN: This is with respect to the Olivia case, where the student comes up with the drawing of Jesus, and that is a voluntary, personal and private expression, as you have described it.

ALITO: That's correct. And the Supreme Court has recognized this in a number of cases. In the Rosenberger case and the Good News Club case and the Lamb's Chapel case, they've drawn this distinction.

So here we had a situation involving an election by the students to pick somebody to lead them in prayer, and which side of the line did it fall on? Well, it wasn't individual student speech, but it was collective student speech by way of an election. And that was what we had to decide, which side of the line it fell on. Judge Mansmann, who wrote the opinion that I joined in that case, explained why we thought it fell on the side of the line of individual student speech.

DURBIN: Let me ask you about that; let me explore it for a second. You are dealing with a school board policy. A school board is a government agency. They've set up the policy, so it is not coming entirely from a voluntary personal situation like the Olivia case. And you know that the majority is going to rule in the decision on whether there will be a prayer and what the substance of the prayer will be.

DURBIN: How, then, could you respect the rights of the minority, including people with different religious beliefs and nonbelievers, if you leave it up to a majority vote?

ALITO: Well, that factor is why it was a case that didn't -- there could be a debate about which side of this line it fell on. Now, I think there also was a disclaimer that was distributed at the time of the graduation explaining to anybody who was in attendance that the prayer was not endorsed -- if there was a prayer, it wasn't endorsed by the school board and that this was a decision of the students.

There are factors there that fall on one side of the line. There are factors there that point to the case being put on one side of that line, factors that point to putting the case on the other side of the line.

And Judge Mansmann's opinion explained why she thought -- and I agree that it would fall on the private student speech side of the line. But it was a question that was debatable.

And then the Santa Fe case came along later. It didn't involve exactly the same situation, but it involved the related situation -- and that is now the Supreme Court's expression of its opinion in the form of a precedent on the application of this test that I've been talking about, a situation like this.

DURBIN: Let me ask you, as you've described it, this is not an easy call. I mean, there are circumstances on both sides. And yet, in your dissent, you used the phrase -- referring to the majority -- as "hostility toward religion."

It seems to me that you could make a case that I'm not hostile toward religion but trying to be sensitive to the rights of all to believe or not to believe in America and come down on the opposite side of the case.

Were you overstating your position in using that phrase, "hostility toward religion," in describing the majority?

ALITO: It was Judge Mansmann's opinion, which I joined. And I don't remember the phrase "hostility to religion." Obviously, it must be in there.

I certainly don't think that she meant to suggest that those who were objecting to this were proceeding in bad faith or even that they were hostile to religion.

ALITO: I think what she -- I can't speak for her and I don't recall the specific language, but looking at it now, the way I would put it was that she probably thought that this was not giving as much room for private religious speech as should be given.

DURBIN: Interesting that when you -- I couldn't tell you what in the heck I ever wrote in law school about anything.

But in your second year in law school you wrote a paper, I take it, some research paper which you had to tell us about here relative to the issue of religion and then, in the '85 memo, raised the question about the Warren court on the establishment clause.

What was it that the Warren court decided on the establishment clause that troubled you, if you remember?

ALITO: Well, I actually think that the student note from the Yale Law Journal is an illustration of the sort of thing that has interested me and troubled me about the jurisprudence in this area for a long time.

In the law school note, I talked about two of what are called the release time cases. It was the McCollum case...

DURBIN: Versus...

ALITO: ... versus Clausen, both of which were decided just before Chief Justice Warren took his seat. And they involved situations that were quite similar.

There was a distinction between the two programs, but they were quite similar and the court reached contrary conclusions. And unfortunately, this has been a recurring pattern in the establishment clause jurisprudence, cases that turn on extremely fine distinctions.

The Supreme Court held in Board of Education v. Allen, if I'm remembering the correct case at the end of the Warren court, that it was permissible for a school board to supply secular books to schools that are related to a religious -- that are religiously oriented. And then later in another case, I think it was Wolman, they said but you can't -- but that doesn't apply to other instructional material, other secular instructional material.

And this has been the thing about the establishment clause that has bothered me: the absence of just what your initial question was pointing to, some sort of theory that draws distinctions that don't turn on these very fine lines.

DURBIN: Tell me about the establishment clause in a more contemporary context, if you can. You talked about the case in the Warren court and providing secular books to religious schools, which I find no problem with. I think that's acceptable from my point of view, whatever that's worth.

But what about the concept and theory of financial support from a government agency to a school that is a religious school, where the money is used for the purpose of teaching religion or proselytizing?

ALITO: Well, I think the court's precedents have been very clear on that, that a government body cannot supply money to a school for the purpose of conducting religious education. And I don't recall a suggestion in dissenting opinions -- maybe there is one that I'm not recalling here -- that says that that would be permissible.

DURBIN: I'm running out of time, but it would go back to my first question. I think under the coercion test, there is some argument among some on the court and others that, not applying Lemon, but using this new coercion test may give them more leeway when it comes to this kind of financial support and vouchers. But I don't want to presume that.

And I thank you for your responses to these questions.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Durbin.

Senator Brownback.

BROWNBACK: Thank you, Mr. Chairman.

We started off this morning and we'll end today.

I want to thank you for all the questions you have answered. You have answered the questions that I have had, and I've heard much of the rest of the discussion. I think we've covered many of these points so many multiple times, we've just overdone it on some of these.

So, Mr. Chairman, I'm satisfied with the questions that he's answered.

I will be supporting your nomination in front of the committee and on the floor. I think you're an outstanding nominee, and I have appreciated your thoughts that you have put forward here.

I think if approved, and I hope you are, and I think you will be approved by the full Senate, you're going to serve as an outstanding justice on the United States Supreme Court. And I will be supporting you here in the committee and on the floor.

And with that, Mr. Chairman, I'd yield back my time.

SPECTER: Senator Brownback, thank you. Thank you for 19 minutes and six seconds.

(LAUGHTER)

Senator Coburn?

COBURN: Well, Mr. Chairman, I'll give you some time back, but it won't be quite that much. Thank you.

I have a couple of charts I want to show just to clarify the record.

COBURN: I want to, again, make sure that everybody knows that in 1985 there's a quote in the Princeton packet that the campaign to eliminate the Army ROTC program, and what was perceived as a decline of Princeton athletics.

It was also known that this CAP program was soliciting through mail membership and support.

There also was a disclaimer in this that I want to make sure is in the record as well. And it says: "The appearance of an article in Prospect does not necessarily represent an endorsement of the author's belief by the Concerned Alumni of Princeton. CAP has never taken a formal stand on co-education at Princeton or elsewhere." Thank you.

And I'm a member of the American Medical Association. But I will tell you, I don't agree with everything that's written in JAMA. As a matter of fact, I take great, great umbrage at some of the things that are written there and some of the ideas that are put forward that aren't done well, that go counter to good medicine.

But that doesn't mean I endorse, because I'm a member of the American Medical Association, because I'm a member of JAMA, doesn't mean that I endorse everything that that organization or that magazine might put out.

And so I think Senator Graham had it right. This idea of association with anything means you take it all, whether in fact that's the truth or not, and that's not good work on this committee and it's not truthful and it's not intellectually honest.

I want to spend just a few minutes going back. You had mentioned earlier about one of the things the court didn't do is they can't take necessarily all the technology or all the science and how it applies to things, and that things, in fact, might change.

And I mentioned earlier this morning in our questions about the Stenberg case and Doe v. Bolton and this concept of health -- one of the things as a practicing physician who's delivered 4,000 babies, who also had a grandmother who came into this world as a result of rape -- so I have a special view on the consequences of rape -- this concept of health, I'm interested in your thought on it, because one of the things I think about it is the health of the woman when -- at the time or later -- because of what we do know about the consequences of Roe v. Wade and the actual act of abortion and the impact that that has on a woman's health?

COBURN: For example, you're twice as likely to commit suicide if you have had an abortion -- now, a study, a longitudinal shows that -- twice as likely to have alcohol or drug dependency if you have had an abortion, about 60 percent more likely to have a pre-term delivery.

So, as the court looks at that and also looks at the fact, this health question, then also looks at health and then also looks at liability -- when I was in medical school, it was unusual for a pre- term infant at 28, 29, 30 weeks to survive.

And we routinely see infants at 24 weeks that survive. In matter of fact, I have a nephew, 24, 25 week delivery. The only deficit he has is he's blind in one eye. He weighed one pound, two ounces when he was born.

And so technology means something. And so the fact that we weren't not going to commit to give a blanket answer -- and I'm convinced that the only way you'll get certain votes off this committee and out of this Senate is if you were to write a blood oath that there's nothing that could interrupt an type of abortion on demand at any time.

So my question to you is: How is that any court should take into consideration these questions about technology and science and how they impact the law?

And the other thing I'd add to that -- and I mentioned in my opening statement -- is we consider somebody alive when they have a heartbeat and brainwave and we consider them dead when they don't have those things.

How is it that the court can't look at that science and say, we have a heartbeat and a brainwave? We know when viability is now, outside of the womb.

Should those factors play in the decision of the court, or should we just blanket stare decisis and say Roe and Casey, it's all settled and we're not going to look at the science? Should that play a role?

ALITO: Well, Senator, I guess I would answer that by saying that you would look at the factors that are relevant under the stare decisis analysis and ask the role of the data that you have outlined and ask how that would be involved in the factors that go into the stare decisis analysis.

ALITO: And then if you get past that to the second step, of course, you would ask the same question -- what bearing that information has on the resolution of the question at that step.

Just speaking in general, not talking about abortion at all, in general, in deciding any legal issue, I think courts should be receptive to any information that has a bearing on the decisions that they are making.

There's no such thing in general as bad knowledge, and I think that is relevant to the decision-making process that judges go through. They should be receptive to information that is relevant, that the parties want to bring to their attention, and then decide how it figures in the application of the legal standards that they're applying in the particular case.

COBURN: Let me ask you another question. And I want you to be careful how you answer this, because I think at some time this probably will come before you, and I'm not trying to get you to pin down.

If I'm driving a car today and I hit a pregnant woman who has a 36-, 37-week fetus, and the woman survives and the fetus dies, I can be held accountable for the death of that fetus. And by law we value that as a life -- unborn but a life.

If I say -- I'm the pregnant woman -- I want to terminate that fetus at 37 weeks, there's nothing in this country today that keeps me from doing that, even though on one side of the law we say it's a life.

How did we get there to where it's not life or it is a life? Tell me. Can somebody logically explain that to the American people that how, if I kill it, it was a life, but if I choose to take it voluntarily, it's not a life?

Can anybody logically explain how we got there and what the consequences going down the road are going to be for us as a nation when we have laws that send two different signals about the same individual?

ALITO: Well, let me try to just explain my understanding of where the law rests on those two questions.

The first is a question of tort law or maybe it's a question of -- well, it's a question of tort law -- and decisions are made by state legislatures or maybe, in some instances, it comes about through the development of common law through the state courts regarding the scope of state tort law.

And a tort can be created that applies in the situation of the auto accident you mentioned, or a legislature may choose to structure the tort law differently.

But that's been a decision that's been left for the state legislatures to decide, and they have taken a variety of approaches in doing that, I believe.

The second, of course, is the issue of Roe and the cases that follow after it. And those are based on an interpretation of the Fifth Amendment and the 14th Amendment of the Constitution, and they are not the result of legislative decisions made at the state level or at the federal level.

COBURN: Can you rationalize any way of a logical explanation of how that could be, though? I mean, if you had somebody that wasn't from this world, and they came in and they said, "Oh yes, if you kill it, it was alive -- if you accidentally kill it, it was alive; if you choose to kill it, it wasn't."

I'm having trouble getting my mind around that concept that there's any logic there. I just wondered if you were.

ALITO: Well, the answer is that the tort situation has been left for its development under state law. And states have taken a variety of approaches expressing the values that the legislature believes should be embodied in tort law.

And in the abortion context, of course, states have laws regulating abortion and they are free to enact whatever statutes they want on the subject as long as they comply with the Constitution.

ALITO: But we have decisions of the Supreme Court that establish constitutional requirements in the area. I think that's the explanation. The decisions are made by different bodies.

COBURN: One other comment. For the American public to know, there's 1.31 million abortions in the U.S. each year. This is from the Alan Guttmacher Institute. And it's very interesting for us to know why people have an abortion, why women choose to terminate their unborn children.

Twenty-one percent say they can't afford a baby. Twenty-one percent say they don't want the responsibility. Sixteen percent say the baby could change their lives. Twelve percent have problems with relationship or want to avoid single parenthood. Eleven percent are not mature enough or don't want to have more children. Three percent have a possible fetal health problem of which two-thirds are Downs Syndrome or spina bifida. One percent resulted from rape or incest. One percent the husband or the partner didn't want them to have a baby. And one percent is they didn't want anybody else to know somebody had sex with them.

And of that, 48 percent of the women who have an abortion in this country have already had one previously.

So, in fact, our country, through the auspices of an activist court, in my opinion, has moved to use abortion not as a health issue, but as a convenience issue. And we have done great damage because we have a schizophrenic policy.

And my hope, Judge, is that science and technology, and recognition of life on some parameter ought to be applied. And my hope is, as we get to the court, is that we have common sense. And it doesn't have to be my way. You know, it could be Senator Schumer's or Senator Durbin's view.

You know, the fact is there's legitimate disagreement about rape and incest and medical malformations and all these other things.

But we need in this country to have the confidence in the Supreme Court restored. And I think it's taken a hit just like this institution has taken a hit, because it's making decisions that aren't based on fact and good law, but it's making decisions like we have made decisions -- based on expediency.

And my hope is that you'll be confirmed. I think you have great character and great integrity. And integrity, I think, is the number one issue, not your legal mind, your heart and your soul and how you view honesty and straightforwardness. And that the result will be that we'll see some leadership to put science and fact and combine it with the law and restore the confidence in the Supreme Court in this country.

I asked Judge Roberts, I asked him, "Why do you think we've lost it, some of the confidence of the court?"

COBURN: And he said, "Because we've gotten into areas of policy and not law." And I tend to agree with him. And it's my hope that you would agree with that as well.

I yield back the balance of my time.

SPECTER: Thank you very much, Senator Coburn.

We're trying to figure out what the schedule is going to be for the balance of the evening and for the balance of the week. We now have Senator Biden, who's requested 20 minutes, and Senator Feinstein 10 and Senator Durbin 10 -- all of which will be done tomorrow.

Anybody who wants a fourth round, I want to do the third rounds tonight so that we can move ahead promptly tomorrow.

LEAHY: Mr. Chairman, I think that if we want to do this, one, the judge and his family have been sitting here all day. He's been answering questions. He has shown more equanimity than most of us would. You sat here through the whole thing. I've sat here through most of it. But senators can come and go. He can't. He's had to sit through all of it. His family's had to sit through all of it. And that has to be a strain.

I don't remember most teenage sons that would show that much attention on these things. But I would suggest that we will probably have far better questions if we can go back and go over.

I know what I want to do -- I want to go over some of the -- I'm not going to have an awful lot of questions, but I'd like to go back. There's three or four places, from my notes, that I have questions. But I want to read the transcript so when I ask the question, in fairness to the judge, I'm going specifically to the transcript.

So I think, you know, this is the same thing we did with Chief Justice Roberts. We came back on that last day, as I recall. And I think we wrapped up around 1:00, 1:30 in the afternoon.

SPECTER: We wrapped up about 11:00 or a little before 11:00.

LEAHY: Oh, did we? OK.

SPECTER: A little before 11:00.

You were having so much fun, it seems time goes by so quickly.

SPECTER: We do not have word from Senator Kohl or Senator Feingold. Suppose we put a maximum of 25 minutes on the next round for tomorrow and suppose we start at 9:00. That means the only people that have to be here are Senator Leahy and myself at 9:00.

LEAHY: Well, I will be here at 9:00. I'm here usually a lot earlier than that.

SPECTER: Senator Schumer, just on the auctioneer said yes.

LEAHY: That's OK. I'll along with that.

And understand, though, and I would assume, you have always been fair, if we run into some extraordinary problems, somebody may need a few more minutes.

SPECTER: Anybody who satisfies your extraordinary problem test will get more time.

LEAHY: OK.

SPECTER: Make it your test.

LEAHY: Thank you very much.

SPECTER: Without objection, so ordered.

Judge Alito, you have shown remarkable stamina and you have shown in my opinion remarkable patience. I think it's unwise for any senator, including the chairman, to do too much commenting about anybody's questioning, but you have been patient.

And people may not like your answers, but they are your answers. We have precedent for that. Nobody has even said they are misleading. They say they just don't like them.

But you have been consistent and very patient in stating your position, even though you have been called upon to state it repetitively and repetitively and repetitively.

So I think it is well within the gambit of fairness to say that you have been patient and you've shown real stamina, as has Mrs. Alito and has your loyal family.

So we will proceed at 9:00 tomorrow, and we will have 20 minutes for Senator Biden, 10 minutes for Senator Feinstein, 10 minutes for Senator Durbin. And my expectation is we will not have a great deal of time for Senator Kohl. I'm not sure about Senator Feingold. And anybody else will be limited to 25 minutes on the final round, subject to the Leahy exceptional circumstance standard.

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

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