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

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Thursday, January 12, 2006; 12:49 PM

JANUARY 12, 2005

SPEAKERS:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WITNESSES:

JUDGE SAMUEL A. ALITO,

NOMINATED TO BE AN ASSOCIATE JUSTICE OF

THE U.S. SUPREME COURT

[*]

SPECTER: These hearings will resume on the confirmation proceedings for Judge Samuel Alito to the Supreme Court of the United States.

Good morning, Judge. I saw your family in the hallway as we were coming down. Everybody appears to be bright and rested and ready.

ALITO: Thank you, Senator.

SPECTER: The committee staff, accompanied by representatives of Senator Kennedy, went through the Rusher files yesterday, finishing up their work, I'm advised, at about 2 a.m. this morning, and provided me with a memorandum that the committee staff reviewed more than four boxes of documents from the personal files of William Rusher concerning CAP.

Judge Alito's name never appeared in any document. His name was not mentioned in any of the letters to or from the founder, William Rusher. His name was not mentioned in any of the letters to or from CAP's long-term executive director, T. Harding Jones. His name does not appear anywhere in the dozens of letters to CAP or from CAP.

The files contain canceled checks for subscriptions to CAP's magazine, Prospect, but none from Judge Alito.

The files contain dozens of articles, including investigative exposes written at the height of the organization's prominence, but Samuel Alito's name is nowhere to be found in any of them.

The Rusher files contain lists of the board of directors, the advisory board and the contributors to both CAP and Prospect magazine. But none of the lists contains Samuel Alito's name.

The files contain minutes and attendance records from CAP meetings in 1983 and 1984, just before Samuel Alito listed the organization on his job application, but Samuel Alito did not attend any of those meetings, at least according to those records. He's not even mentioned in the minutes.

The files contain dozens of issues of CAP's magazines, but nones of the articles was written by, quoted or mentioned Samuel Alito.

SPECTER: CAP founder William Rusher said, quote, "I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP, if at all."

Before turning to Senator Leahy for his allotted time, I yield to him if he has any opening comments he chooses to make.

LEAHY: I just think, Mr. Chairman, as we know this will be the last opportunity for the American people to learn what Judge Samuel Alito thinks about the fundamental constitutional rights, whether he's going to serve to protect their liberty, their privacy from government intrusion.

I think it's even more critical today because of the efforts to expand...

SPECTER: Excuse me, Senator. Do you want to start on your 25 minutes?

LEAHY: Oh, no. I thought you were asking me...

SPECTER: No, I do. Yes, opening comments, sure. We're not going to start your time clock until you tell us.

LEAHY: This is just a short opening comment.

SPECTER: Fine.

LEAHY: I just think it's critical. And I know the judge probably feel like he's here doing nothing but being on a hot seat, but he is talking about a lifetime appointment.

And it is the most powerful court in the land. It is at a time when we see this effort to expand presidential powers, such as illegal wiretaps of Americans, the president using a signing statement to create exemptions to laws prohibiting torture.

These are all important things. The Supreme Court's our ultimate guardian -- has to be our ultimate guardian.

LEAHY: And we need to know whether Samuel Alito is willing to be that kind of guardian.

I'm still troubled by some of the questions.

And, Mr. Chairman, I know you're going to be asking questions and I'll wait to ask mine after that, of course.

SPECTER: I'm going to reserve my time at this juncture and turn to Senator Leahy for time, up to 25 minutes.

LEAHY: Thank you.

In his confirmation hearing last September we, as you know, went through hours and hours, days and days with Judge Roberts, now chief justice.

I asked him if the Constitution permits the execution of an innocent person. He said, "If they've been falsely convicted and they're innocent, they shouldn't be in prison, let alone executed." I think we all agree with that.

But I pushed further, because my question was whether the Constitution permits the execution of an innocent person -- you know that they're innocent. He said, "I would think not."

Judge, do you agree with Chief Justice Roberts?

ALITO: I agree that it is one of the most fundamental rights protected by our Constitution that no one may be convicted of an offense unless they're proven to be guilty beyond a reasonable doubt.

And further than that, the Supreme Court's decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously.

ALITO: And this whole framework is designed to prevent exactly that: to prevent the conviction of an innocent person and to prevent the imposition of capital punishment on someone who is innocent or on someone who is guilty of the offense but is not deserving to be -- to have that penalty imposed on the person.

LEAHY: But, Judge, we have, as we know -- we saw the cases in Illinois, people a few days away from execution. They'd been sentenced to death. They'd been convicted. They had their trial, gone to trial. Jury came back. Apparently procedures followed on sentencing. They are now sentenced to death.

A few days before death, somebody comes forward at the very last minute because of DNA evidence, and says "Whoops, we got the wrong person," and then they are let loose.

We're finding in Virginia now, in other cases, it appears that there's a possibility a number of innocent people were executed.

What if you had a case -- they've gone through the whole thing. They've been convicted. The judge has followed all of the appropriate sentencing, the jury came back for sentencing, did everything following the law. And now they're up for execution. Evidence comes up, say, DNA evidence, or DNA evidence, a confession of somebody else. Would it be unconstitutional then to execute that person?

ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...

LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.

ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring.

I have not had a case -- during my time on the court of appeals, I've had only a handful of capital punishment cases where there was a suggestion that that was a possibility.

If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court.

The first procedural step in either instance would be to file a petition with the trial court.

ALITO: If it were in state court, it would be a state collateral relief petition. And those are handled differently depending on the state. And then file a -- I'm sorry. You could go to the state court or you could attempt to file a second habeas petition in federal court and follow the procedures that are set out in the habeas corpus statute.

LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.

But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?

ALITO: The Constitution is designed to prevent that.

LEAHY: And the reason I ask this, this is something that originally raised, as I recall, in the Judiciary Committee by Chairman Specter, the Rule of Four. Are you familiar with that, where the Supreme Court?

In other words it takes five justices to stay an execution or to hear one of these cases. Usually, if there's been four that have agreed it should be, somebody will make the fifth just as a matter of courtesy.

It hasn't been followed that much recently. Chairman Specter has called it is bizarre, an unacceptable outcome, to not provide the fifth vote. He wanted to introduce legislation to codify the Rule of Four.

If you were one of the justices and you're there -- and these things always seem to happen. Everybody is scattered all over the place. Four of your fellow justices have said that they would hold, what would you do? They voted to stay an execution. They're asking you to be the fifth vote. Four have...

ALITO: I had not heard of this rule until the hearings for Chief Justice Roberts. But it seems to me to be a very sensible procedure because I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated.

LEAHY: Well, I raise it, as I did with then Judge Roberts, here because some things you remember from this hearing; some things you will probably try to forget -- both you and your family.

But I hope at least this idea stays in your mind.

About a decade ago in Washington v. Glucksberg, the Supreme Court declined to find a terminally ill patients had a generalized constitutional right to a physician's aid in dying, preferring the matter be left to the states.

The court noted: "Throughout the nation, Americans are engaged an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide."

Chief Justice Rehnquist wrote: "The court's holding permits the debate to continue, as it should in a democratic society."

I remember reading that. I thought it very practical, aside from the legal, a very practical response.

Last spring, we witnessed a fierce legal battle over the medical treatment of Terri Schiavo. She was in a persistent vegetative state for more than a decade.

LEAHY: And ultimately, after she died, the autopsy showed that.

But we found politicians rushing to the cameras, engaging in extraordinary measures to override what the state courts determined to be her own wishes, state courts that heard countless cases on this.

Suddenly, this became the thing -- politicians all over the place, rushing forward.

The power of the federal government was wielded by some to determine, in my view, what were deeply personal choices. The president even came back to Washington in the middle of one of his vacations to sign special legislation on this.

Do you agree with the idea advanced in the Cruzan case that the wishes of an unconscious patient, to the degree they can be known, should govern decisions regarding life-sustaining therapies?

Let's assume that the wishes are clearly known. Should they be followed?

ALITO: Well, the Cruzan case proceeded -- assume, for the sake of argument, which is something that judges often do, that there is a constitutional right to say -- that each of us has a constitutional right to say: I don't want medical treatment.

And the Cruzan decision recognized that this was a right that everybody had at common law. At common law, if someone is subjected to a medical procedure that the person doesn't want, that's a battery and it's a tort. And the person can sue for it. It is illegal. The court did not...

LEAHY: One of those cases where we got something from that foreign law -- in this case, English common law. Is that correct?

ALITO: Well, that's correct. And I think that our whole legal system is an outgrowth of English common law, and I don't...

LEAHY: Just thinking of somebody -- why that popped in my mind. I was thinking of some of the people talk about paying attention to foreign law and most of our law is based on foreign law.

But go ahead.

ALITO: Most of our law...

LEAHY: Common law, common law.

ALITO: ... is an outgrowth of English common law. And I think it helps to understand that background often in analyzing issues that come up.

LEAHY: But you agree with Cruzan? I mean, I'm thinking if somebody has a "do not resuscitate" order, do you agree with that?

ALITO: That's a fundamental principle of common law. And Cruzan assumed for the sake of argument that that would be a fundamental constitutional right.

But that is a right that people have had under our legal system for a long time, to make that decision for themselves.

LEAHY: My wife was -- or is a nurse. And she was working on a medical surgical floor and she had mentioned about people with these DNR, do not resuscitate.

Would you agree that a patient would have a right -- for example, if you have a living will, you have a right to designate somebody who can speak for you in a case of terrible injury or unconscious, speak for you on a "do not resuscitate" or "do not use heroic measures," all the rest? Do you agree with that?

ALITO: Yes, Senator.

That's, I think, an extension of the traditional right that I was talking about that existed under common law. And it's been developed by state legislatures, and in some instances by state courts, to deal with the living will situation and with advances in -- which I think is, in large measure, a response to advances in medical technology, which create new issues in this area.

LEAHY: We have three separate and coequal branches of government, as the Constitution says; have these checks and balances. Most of us feel that if the Congress is going to carry that out, they have to carry out real oversight and make sure the government's accountable to the American people. If you don't do that, corruption, incompetence sets in.

We've given a lot of powers to our government in the fight against terrorism and others. And the check and balance is to make sure there's oversight.

Do you believe in the general principle of the Congress having major oversight powers?

ALITO: I don't think there's any question about that.

LEAHY: Well, let me go -- and I was thinking of this as we were talking about the Schiavo case. And I don't want you to have to get involved in what many thought was, kind of, a sorry exercise when people are already suffering enough -- sorry exercise by the Congress. So I won't talk about the House committee's unbelievable subpoena to Terri Schiavo.

But let me ask you this: Could this committee, the Judiciary Committee, issue a subpoena for a defendant on death row in a state prison if we believed he was about to be executed and thought he was innocent?

ALITO: Could this committee issue a subpoena...

LEAHY: And enforce it?

ALITO: ... to have the defendant come and testify before the committee?

LEAHY: It's an hour before execution, for example, and make it even a tougher case.

ALITO: It's not a question that I ever thought of. Sitting here I can't think of an objection to it, but I would have to hear whatever arguments there were to be made.

LEAHY: You know, this may seem to be bouncing around here a little bit. I'm trying to pull together my own mind after looking at the transcript last night of some of the things you were saying. And you were in a discussion with a number of senators about views of the court, or how the courts -- how the American people view courts and how, basically, in a democracy, courts have to have the respect of people if they're going to be able to carry out their orders.

Brown is probably one of the key examples of that where the chief justice spent two and a half years until he got a unanimous court decision.

Justice O'Connor gave a speech decrying the present climate of antipathy between the judiciary and some members of Congress, and I've spoken with her and others and the late chief justice about this.

She expressed concern about efforts to limit federal court jurisdiction in areas that some members of Congress think the federal court should not be involved. We've seen a number of efforts to strip the federal courts of jurisdiction when some members of Congress felt they disagreed with it.

LEAHY: Now, I thought some of these issues were settled by Marbury and when Chief Justice Marshall said it is emphatically the province and duty of the judicial department to say what the law is.

Now the court-stripping bills are not without precedent. Recent efforts have failed. I recall one where three senators finally talked it down, until it ran out of time. I was one of the three. Senator Lowell Weicker of Connecticut was one of the other three.

On the way out, the third one put his arm around us and said, "I think we're the only true conservatives in this Senate." We both said, "Thank you, Barry Goldwater. We appreciate you joining us in this."

I took it as a great compliment.

Now, imagine that in the early 1950s, Congress enacted a law that purported to strip all federal courts, including the Supreme Court, of jurisdiction to hear cases and appeals involving segregation of public schools. Would such a law have been constitutional?

ALITO: There's a debate among scholars about the extent of the authority of Congress to structure the appellate jurisdiction of the Supreme Court. There are those who say that Congress has the authority to eliminate appellate jurisdiction by topic and they rely on the language of Article III.

ALITO: And there are those who say that to take away jurisdiction over a category of cases such as that would be a violation of another constitutional provision; in that instance, a violation, perhaps, of the equal protection clause.

And there's this debate. It's not something...

LEAHY: Have you taken part in that debate?

ALITO: Pardon me?

LEAHY: Have you taken a position in that debate?

ALITO: I have not taken part in that. And I've read...

LEAHY: Would you like to?

ALITO: Not at this time.

(LAUGHTER)

LEAHY: I don't know why that surprises me.

ALITO: And the case law is not definitive on this question, according to the scholars. Ex Parte McCardle is a case that can be interpreted in a number of different ways.

LEAHY: You know, we had many in the Congress at that time, had they thought that Brown v. Board of Education was about to come down the way it did, probably would have made efforts to strip the authority of the Supreme Court to hear it.

And I'm afraid that, as we find some of these efforts where the courts become a very convenient whipping boy to people looking for votes or whatever, that that might happen again. And I'd suggest that you think long and hard on it.

Let me ask you this. On more than one occasion, the House of Representatives has included a provision in an appropriations bill -- and we all agree that the Congress has the power of the purse -- but in an appropriations bill saying that none of the funds can be spent enforcing a particular court decision. Pick something that they feel is unpopular at the moment, so they say, "No money can be spent to enforce it."

LEAHY: And let us say the court has ruled, basically, on a constitutional issue, saying: "This shall be in force." The Congress says: "No, we won't allow money to be spent."

Does that violate the Constitution?

ALITO: Well, that's also a provocative constitutional question.

I can't recall an instance where that has been done with respect to a constitutional decision. Perhaps it has been.

I do recall, back during the 1980s, that it was done with respect to an issue of antitrust. And I would assume that if there wasn't -- well, obviously, if there isn't a constitutional question raised by that limitation on the expenditure of funds, and if you're talking about a nonconstitutional question, maybe there is no constitutional issue raised, there wouldn't be an obstacle to Congress's doing that.

With respect to a constitutional question, that's a provocative constitutional issue that -- I don't know the answer to it. And I cannot think of precedent on that point. I don't believe there is any.

LEAHY: Well, let's take a nonconstitutional. I want to make sure I understand your answer.

The Congress decision has come down of whatever nature. You mention antitrust -- whatever it is, it comes down from the court. And it is going to require some enforcement. And the Congress says: "No, we're not going to put the money in there."

LEAHY: Can the Congress do that?

ALITO: Well, I'd have to know the facts of the case and hear the arguments on both sides of it.

Unless there was a constitutional objection, then that falls within one of the most important powers of the Congress, the expenditure of funds that Congress exercises.

The framers wanted Congress to have the control of the purse because Congress is the branch that's closest to the people. And I would think that -- and Congress obviously has great latitude in this area.

I don't know what constitutional objections would be raised to doing that with respect to a nonconstitutional question. But I'd have to understand what exactly was going on.

LEAHY: Well, it's something to keep in mind because it may happen.

You know, we can grandstand -- Congress can grandstand the way it did on the Schiavo case, you have to wonder what else may come down.

One of the advantages or disadvantages of being here for a long time -- I've actually been here for the hearings on every member of the Supreme Court, including that of former Chief Justice Rehnquist. And Senator Specter and I have served here together a long time. And I went back to one of his questions. He asked then Justice Rehnquist whether Congress can strip the Supreme Court of jurisdiction over First Amendment cases involving freedom of speech, press or religion.

And I think the chairman remembers this. He can be a rather tenacious questioner, as I know from some of my weekend phone calls from him.

(LAUGHTER)

LEAHY: But he kept pushing then Justice Rehnquist until he finally got an answer. In the end, then Justice Rehnquist gave his view. He said that Congress could not remove the court's jurisdiction over First Amendment cases.

So let me ask the same question that Senator Specter asked in 1986: Does Congress have the authority to say the Supreme Court does not have jurisdiction over First Amendment issues of freedom of speech, press and religion?

ALITO: Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago about taking away the Supreme Court's appellate jurisdiction over a topic of cases. It's not a question that I have -- obviously have had to deal with in my capacity as a judge or something that I've written about or studied in any sort of a focused way.

My understanding of the writing on the question is that there's a division of thought among leading constitutional scholars on the issue. And there are some who argue that Congress has plenary authority to define the appellate jurisdiction over the Supreme Court and there others who argue that if Congress takes away the authority of the Supreme Court to hear a particular type of case, that there could be a violation of another constitutional provision. And, in that instance, it would be the First Amendment.

ALITO: And as a matter of constitutional law, I don't feel I can go further than that.

LEAHY: But, Judge, this is somewhat similar to the initial answers given by then-Justice Rehnquist. But he ultimately came down and said in that hearing that Congress could not remove the court's jurisdiction over First Amendment cases.

Are you telling me that -- and I just want to make sure I fully understand your answer -- you're not willing to go to the extent then- Justice Rehnquist did at his hearing?

ALITO: I gave a speech a while ago addressing this question from a practical standpoint or touching on it from a practical standpoint. And I said I thought that doing something like this would be an awkward and undesirable way of proceeding because it would lead to a lack of uniformity in decisions.

If jurisdiction is taken away from the Supreme Court, but jurisdiction remains in the courts of appeals on it, then conflicts in the circuits would develop and you'd have conflicting decisions potentially governing in different parts of the country and no way to resolve the issue.

And if the jurisdiction was taken away from the federal courts in general, then you would potentially have conflicting state court decisions. So the First Amendment, or whatever constitutional provision was at issue, would mean something different potentially in Vermont than it did in New Hampshire or in some other state.

So there are undesirable practical consequences of proceeding in that way.

LEAHY: Your answer would be the same if I was asking, I assume, asking the question of the Fourth or the Fifth or Sixth Amendment?

ALITO: It would be, Senator. I have just not studied this issue in enough depth to be able to give an answer. I would have to study it in depth and probably hear it in the context of the case.

What I do know is that there's a division of authority among leading constitutional scholars. And I would not want to hazard an answer to the question here without going into the question, studying the question in considerably greater depth than I have.

LEAHY: This will be my last. And I appreciate the courtesy of the chairman who, I might say, has run this hearing with total fairness, as he always does. I may have some follow-up questions. This will be my last chance to ask you anything.

Under your theory of unitary executive are citizen suit provisions, such as those in our environmental laws, allowing citizens to act basically as a private attorneys general and sue polluters, are they constitutional?

ALITO: I don't see a connection between the unitary executive theory and that issue.

And I think Congress has the authority to create a private cause of action for anyone that Congress chooses to create such a cause of action for, subject only to whatever limitations are imposed by the Constitution.

ALITO: But we often grapple with the issue of whether Congress intended to create a private cause of action for a particular class of plaintiffs. That's a difficult issue that comes up with some frequency in federal litigation.

But where Congress speaks directly to the question and defines the category of plaintiffs who can bring a suit, a citizen suit or whatever it is, then that's definitive; of course, subject only to whatever limitations the Constitution imposes.

LEAHY: Judge, that's an answer -- substance of what you said is something, obviously, I would like. But I'm still troubled by it, because in November of 2000, right after the presidential election, you came and spoke to a meeting of the Annual Federalist Society Lawyers Convention about the powers of the president.

And when you discussed your theory of a unitary executive, you criticized the Supreme Court's upholding the independent counsel statute, among other things.

Is your answer today different than what you were saying then?

ALITO: What I said in that speech was that the Constitution confers the executive power on the president. And when we are dealing with something that is within the president's executive power -- without getting into the scope of executive power; and there, I was focusing on the president's duty to take care that the laws are faithfully executed; that's explicitly set out in the Constitution, so there can't be any debate about whether or not the president has that power -- when we're dealing with something that is within the scope of the president's executive power, the president should have the authority to control the executive branch.

ALITO: And the latest expression of the Supreme Court on that issue at the time was the Morrison decision. And the Morrison decision formulated the governing standard in what I would call functional terms.

And it said that Congress has the authority to place restrictions on the president's ability to remove inferior executive officers provided that, in doing so, Congress does not take away the president's authority to control the executive branch.

And I was talking about the importance of maintaining the principle that the president is the head of the executive branch and should control the executive branch.

LEAHY: But you did, at that time, criticize the Supreme Court upholding independent counsel statute, did you not?

ALITO: I said that it was inconsistent with what you could call the pure theory of the unitary executive.

But at the time, of course, Morrison had been decided. It was a resounding 8-1 decision and it is a very important precedent of the court.

LEAHY: If you were there it might be 7-2; is that what you're suggesting?

ALITO: Well, if it comes up before me, if I'm confirmed, then Morrison is a strong expression of the view of the Supreme Court on the question and an 8-1 precedent on an issue that was important and controversial at the time when it came up before the court.

ALITO: And it was very clear and, as I said, a resounding decision by the Supreme Court on the question.

LEAHY: Well, I'm now intruding on other senators' time. And I may do a follow-up question with you.

Thank you for your answers. We've obviously agreed on some things, disagreed on others. And I appreciate you taking the time to answer.

Mr. Chairman, I appreciate your time.

SPECTER: I'm going to use just a little of my reserved time to comment on what Senator Leahy raised about the issue with Chief Justice Rehnquist on his statement that you could not take away the jurisdiction of the Supreme Court of the United States on First Amendment issues.

That was as interesting a dialogue as I've had in my tenure here, and I've had a few. And it arose in a curious context. I'd asked the chief justice about the question, and he refused to answer.

And over night, the staff had found an article written by a young Arizona lawyer named William H. Rehnquist in 1958 which was published in the Harvard Law Record, not the Harvard Law Review but the Harvard Law Record. And, in that article, lawyer Rehnquist said that the Senate Judiciary Committee was derelict in its duty in questioning Justice Whittaker at his confirmation hearings in not asking pointed questions about due process or equal protection.

And when my turn came, I came back to then Justice Rehnquist and said, "How about it? Are you that William H. Rehnquist?"

SPECTER: And he admitted he was; didn't have much choice.

And I said, "Well, how about his article?" And he emphatically said, "I was wrong."

(LAUGHTER)

That provided...

(UNKNOWN): He was under oath.

(LAUGHTER)

SPECTER: That provided an opening, and I proceeded to continue the line of questioning. And finally he allowed as to how Congress couldn't take away the court's power over the First Amendment.

Seems to me patently clear that the Congress cannot take away the jurisdiction of the Supreme Court on constitutional issues -- cannot do it. That's the principal function of the Supreme Court of the United States, is to interpret the Constitution. And if the Congress can take away that authority, the court's authority would be vacuous.

But then, as you might expect, I asked him about Fourth Amendment search and seizure and Fifth Amendment privilege against self- incrimination -- went right down the line. He refused to answer every question.

And I said, "Well, why will you answer questions on the First Amendment and not on the rest of them?" He wouldn't answer that either.

(LAUGHTER)

Chief Justice Rehnquist was confirmed 65-33, which confirmed an observation which I have made from time to time, Judge Alito: that nominees just about as many questions as they think they have to to be confirmed.

Now, you may turn out to be a notable exception, but I think that's a valid generalization. And it also confirmed my experience that nominees remember these proceedings and nominees are influenced by these proceedings in very subtle ways.

SPECTER: We don't extract promises, but when Senator Leahy very adroitly asks you about the rule of four on granting cert -- four justices say, "A cert's granted" -- but it takes give to stay an execution in a capital case, how ridiculous can you be?

And Senator Leahy wondered if you'd remember that. Well, I predict you'll, if confirmed, remember that. In fact, I predict you'll remember it even if you're not confirmed.

But to this day, justices comment to me about questions they had here. Every time I see Justice Souter, he says he still hasn't made up his mind on whether Korea was a war or not. And the other justices -- I won't go into any more detail.

I'm going to reserve the balance of my 20:54.

Senator Hatch?

HATCH: Well, I'll reserve my 25 minutes.

SPECTER: Senator Kennedy, you're recognized for up to 25 minutes.

KENNEDY: Thank you. Thank you.

Good morning.

ALITO: Good morning, Senator.

KENNEDY: Just to initially follow up on the last area of questioning by Senator Leahy about the unitary presidency, I've asked you questions about this earlier in the week and my colleagues have. I'm not going to get back into the speech you gave at the Federalist Society.

Well, I'll mention just the one part of it that is of concern: "If the administrative agencies are in the federal government, which they certainly are, they have to be in one of those branches -- legislative, executive judicial -- and the logical candidate is the executive branch.

And the president, it continues, the president has the power and the duty to supervise the way to which the board and the executive branch officials exercise the president's power, carrying federal law into execution."

KENNEDY: So we asked you about that power and that authority. And you responded, as I think you just repeated here, that the Humphrey case was the dominating case on this issue. Am I roughly correct? I'm trying to get through some material.

ALITO: Yes. It was the leading case. It was followed up by Morrison cases.

KENNEDY: Followed up by the Morrison case as the controlling case on the administrative agencies.

What you haven't mentioned to date is that the theory -- what you haven't mentioned to date is your dissent from the Morrison case. We've been trying to gain your view about the unitary presidency. Most people believe we have an executive, legislative and judicial, and now we have this unitary presidency which many people don't really kind of understand and it sounds a little bizarre.

We want to know about -- you've indicated support for it. You've commented back and forth about it. You've indicated the controlling cases that establish the administrative agencies. You refer to the Morrison case as being guiding, the authority.

But then in your comments about the Morrison, you then proceed to outline a legal strategy for getting around Morrison.

This is what you said: "Perhaps the Morrison decision can be read in a way that heeds, if not the constitutional text that I mentioned at least the objectives for setting up a unitary executive." That could lead to a fairly strong degree of presidential control over the work of the administrative agencies in the area of policy-making.

Our questions in this hearing is: What is your view of the unitary presidency?

KENNEDY: You've responded in a number of our people, but we were interested in your view and your comments on the Morrison case, which you say is the controlling, but we want to know your view.

And it includes these words: that could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making.

Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?

ALITO: I don't think that it would, Senator. The administrative agencies -- the term administrative agencies is a broad term, and it includes...

KENNEDY: The Federal Reserve?

ALITO: It includes agencies that are not regarded as so-called independent agencies. It includes agencies that is are within -- that are squarely within the executive branch under anybody's understanding of the term, agencies that are headed by a presidential appointee whose term of office is at the pleasure of the president.

And that's principally what I'm talking about there, the ability of the president to control the structure of the executive branch, not agencies -- the term administrative agencies is not synonymous with agencies like the FTC which was involved in the Humphrey's Executor case where the agency is headed by a commission and commissioners are appointed by the president for a term of office and there are conditions placed on the removal of the agency -- of the commissioners.

KENNEDY: Well, the point, Judge -- the answers you gave both to my colleagues, Senator Leahy, Durbin and to me, in the quote, "The concept of a unitary executive does not have to do with the scope of executive power," really was not accurate.

KENNEDY: You're admitting now that it has to do with the administrative agencies. And this would have a dramatic and important reconsideration of the balance between the executive and the Congress.

I haven't got the time to go through.

But we're talking about the Federal Reserve, Consumer Product Safety, the Federal Trade Commission, a number of the agencies that would be directly considered and that have very, very important independent strategy.

ALITO: Senator, as to the agencies that are headed by commissions, the members of which are appointed for terms, and there are limitations placed on removal, the leading precedent is Humphrey's Executor. And that is reinforced, and I would say very dramatically reinforced, by the decision in Morrison which did not involve such an agency. It involved an officer who was carrying out what I think everyone would agree is a core function of the executive branch, which is the enforcement of the law, taking care that the laws are faithfully executed.

KENNEDY: But the point here is you take exception to Morrison. You're very clear about -- we're interested in your views. We understand Humphrey's and Morrison are the guiding laws. But we've talked about stare decisis and other precedents.

But you have a different view with regards to the role of the executive now, an enhanced role, what they called the unitary presidency. And that has to do as well with the balance between the executive and the Congress in a very important way in terms of the use of administrative agencies.

I haven't got the time to go over through. But we did have some discussion about those agencies and how it would alter the balance of authority and power between the Congress and the executive.

KENNEDY: That's very important. It's enormously interesting. We've has Professor Calabrese from Harvard University spell this out in great detail now, and I know you've separated yourself a bit from his thinking to the extent that he would go in terms of administrative agencies.

The point is, it would be a different relationship if your view was the dominant view in the Supreme Court between the executive and the Congress. And that's really the point.

ALITO: Senator Kennedy, what I've tried to say is that I regard this as a line of precedent that is very well developed, and I have no quarrel with it. And it culminates in Morrison in which the Supreme Court said that even as to an inferior officer who's carrying out the core executive function of taking care that the laws are faithfully executed, it is permissible for Congress to place restrictions on the ability of a president to remove such an officer, provided that in doing so there is no interference with the president's authority. And they found no interference with that authority there.

And that is an expression of the Supreme Court's view on an issue where the claim that there should be no removal restrictions imposed is far stronger than it is with respect to an independent agency like the one involved in Humphrey's Executor.

KENNEDY: Well, the point is that you've differed with the Morrison and outlined a different kind of a strategy.

I want to move on. I want to come back just briefly again to the Vanguard issue, which continues to trouble and puzzle me by your answers to me and others.

Now, just to get back to the starting point, in your sworn statement to the committee when you were nominated to the circuit court in 1990, on page 15 of that statement you wrote this about your recusal practices: "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard Companies."

KENNEDY: So according to your sworn promise, you were going to recuse yourself from cases involving the Vanguard Companies, is that correct?

ALITO: I said I would disqualify myself from any cases involving the Vanguard Companies.

KENNEDY: Recuse. All right.

You also said you'd recuse yourself from any case involving your sister's firm...

ALITO: That's correct.

KENNEDY: ... in cases in which you were involved in the U.S. Attorney's Office. Is that correct?

ALITO: Yes, that's correct.

KENNEDY: And there's been some discussion as to whether that commitment covered only the initial period of your judgeship. And I'm not going to go on into that. I'm not going into that.

I just want to know about the steps you took to meet your commitment to the committee even in the initial years. On Tuesday, you told Senator Feingold that you had no recollection of whether you put Vanguard on your recusal list when you were first appointed to the bench in 1990.

Is that still right?

ALITO: That's correct. I don't have the initial list that was submitted to the clerk's office. And I think I clarified, in response to Senator Feingold's question, that that is a list that is used by the clerk's office to make the first cut on recusal issues. But it is not by any means the last word.

KENNEDY: OK.

And in 1990, you owned $80,000 of Vanguard funds. Is that right? And over the year it grew to hundreds of thousands. Is that correct?

ALITO: It grew, yes.

KENNEDY: So you were getting reports from Vanguard now either monthly or quarterly or annually, were you not -- reporting?

ALITO: Yes, I was.

KENNEDY: All during this period of time?

ALITO: Yes.

KENNEDY: Do you know whether Vanguard was on your recusal list in 1991?

ALITO: I don't know what was on the list that was with the clerk's office prior to the time when the system was computerized.

ALITO: And I have seen recently -- and I believe you have -- copies of the list that were on the computer. And those lists do not include Vanguard. There's no question about that.

KENNEDY: We received your standing recusal list from the 3rd Circuit earlier this week. It's dated January 28th, 1993. Vanguard is not on it. You have your sister's law firm on it, you have your cases from the U.S. Attorney's Office on it, but not Vanguard, your largest investment.

Here are the recusal lists for 1994, 1995, 1996 and Vanguard is not on it any of them either.

Do you have any reason to disagree with the report from the clerk of the court?

ALITO: I don't, Senator. I don't know whether -- I have no comment on the list. That's the list that they had. I don't know exactly how that list came about, but that's the list they have.

KENNEDY: What does it say at the top of 1/28/93 list under the date? As I understand it, it says no changes.

ALITO: As of 1/28/93, no changes. That's correct.

KENNEDY: This was '93. So there were no changes in that from '92. And you've listed probably eight or nine different items on there, have you not?

ALITO: There are eight items listed.

KENNEDY: OK. So you have eight items on there. Vanguard isn't on. And it says no changes from the previous year. So I assume that means '92 list was the same. So you did not have Vanguard on the '92 list either.

Do you remember whether you ever placed Vanguard on your recusal list at anytime between the time you were sworn in and January 1993?

ALITO: As I said, I don't have a copy of lists that predate this. In fact, I didn't have a copy of these lists. And I don't know -- obviously, I can't recall what was on their earlier list.

KENNEDY: Well, in 1994, you removed the U.S. Attorney's Office from your recusal list. Is that right?

ALITO: Yes.

KENNEDY: So you did revisit the recusal list at that time?

ALITO: I notified the clerk's office to take the U.S. Attorney's Office off the list. I actually think I have a copy of the letter that I sent there. I don't believe that I looked at the list and crossed it off the list.

I sent them a letter and I outlined -- I say, it's now been four years. This was another instance of my going beyond what I had to do. I recused myself in everything from the office, not just things that were there while I was in office.

And after the passage of four years, I thought that the cases that I had had any possible connection has washed out.

And so, I sent a letter, and have a copy of the letter, saying, take it off this list but notify the U.S. Attorney's Office and the public defender's offices that they should notify the clerk's office if any case comes up in which they have any reason to believe that any aspect of the case was in the U.S. Attorney's Office while I was there.

KENNEDY: Well, I just mentioned that one of the things you had to do was put Vanguard on the list, was it not, because you gave assurances to the committee, sworn testimony, that you were going to recuse yourself? That was one of the things.

ALITO: Senator, if it was not on the initial list, then that would be an oversight on my part. I said, in answering the question to the Senate, I don't believe conflicts of interest are likely to arise. They rarely do arise with respect to mutual funds.

That's one of the main reasons judges and other people who have to worry about conflicts, invest in mutual funds. And no Vanguard case -- no case involving Vanguard -- came before me for 12 years.

KENNEDY: Well, the point is judges, as I understand and as their responsibility, take the whole issue on recusal extremely seriously and review those lists very, very carefully. And given the assurances and the pledge and the promise under oath to the committee and not to find out that it's on your list.

And over the periods of these last weeks, we've heard so many explanations, Judge. This is what confuses us.

We heard, first of all, that it's a computer glitch. And then we hear, "Well, it doesn't really apply because it's an initial service list. So Vanguard didn't -- I wasn't in it because I didn't make the decisions on it until after I'd been in 12 years. I made the pledge to the committee. I don't know how good that pledge was, or how many years it was good, but that initial pledge -- initial service meant I didn't have to do it."

And then we heard the excuse, "Well, it was a pro se case, and we had different computers." That was what was mentioned in my office, "It's a pro se case, and we have different computers. They're different computers in the clerk's office than exist in the law firms here in Washington from all over the country."

I could never quite understand it, because pro se, obviously talking about individuals, you'd think that might even have a higher kind of a requirement.

But the facts are that you never put that Vanguard on your recusal list and all of these papers were in your control. And that, I think, is a matter of concern -- should be to all of us for the reasons.

ALITO: Senator, can I just say a brief comment on that?

I've tried to be as forthcoming in explaining what happened here as I possibly could be. And I am one of those judges that you described who take recusals very, very seriously. And I served for 15 and a half years. I sat on the merits on well over 4,000 cases.

ALITO: In addition to that, let me just mention the statistics for a recent year. And I think these are typical of my entire period of service.

During the last calendar year, I received over 500 petitions for rehearing -- most of those are in cases I didn't sit on initially; over 400 motions -- most of those are in cases that I didn't hear on the merits.

And many of those are just as important as appeals on the merits because they involve things like whether someone is going to be removed to a country where the person claims that they will be subjected to persecution or there are applications by habeas petitioners for permission to take an appeal in a habeas case. And if we don't issue the certificate of appealability, that's the end of the matter for that petitioner, who may be serving a very length sentence or a life sentence.

So we're talking about well over a thousand cases a year. And this is over a course of 15 years. This Monga case is one case -- and I've said there was an oversight on my part in not focusing on my personal practice when the issue came before me. And when the recusal issue was brought to my attention, I did everything that I could to make sure that nobody could come away from this with the impression that this Ms. Maharaj got anything other than an absolutely fair appeal.

But I've tried to explain the whole thing. I have not given conflicting answers. But I've been asked a number of different questions and there are a number of steps that were involved in what took place.

The fact that it was a pro se case -- I mention that not because the pro se cases are any less important than any other category of cases; they're very important. But it is the fact that our court uses a different system.

ALITO: For pro se cases, we don't have these clearance sheets. And that's when I have typically focused on the issue of recusal.

KENNEDY: Well, I thank you, Judge.

I think if we had in the beginning -- we all make mistakes and all of us, and I've certainly made more than my share. But when we have a statement on this, I think we could have cleared this all up in the very beginning if you just said, "It was a mistake, it wasn't on the list, it should have been on the list," as we're saying now, we would never have had to get all this -- go through this.

But we've had a series of explanations: "The light not going off when I looked over the Vanguard case," the computer glitches, the changes of the computers, "I wasn't told by my clerks." We had all of those statements. And so this was what troubles many of us on the committee about getting the straight answers on an issue which is of great importance.

Mr. Chairman, I want to just, and will use the remainder of my time with a brief comment.

I want to thank our chairman for the fair and dignified way that he's conducted the hearing.

I thank our ranking, Senator Leahy, for his usual courtesies as well.

And I thank Judge Alito for your willingness to serve. And thanks to your family for being here and for the support they've given throughout these hearings.

These stakes are very high and that was reflected in the variety of questions posed over the past three days.

We started these hearings seeking answers. We've come with even more questions about Judge Alito's commitment to the fairness and equality for all.

Unitary executive: We discussed Judge Alito's expansive views on presidential authority. He distanced himself from the theory of the so-called unitary executive, one that promotes extremely expanded executive power.

He gave the committee the platitudes about Supreme Court precedent on the Constitution, but his comments before this committee run away from his statements of the past, some as recently as five years ago, that embrace this fairly radical, and I believe bizarre, theory.

KENNEDY: Professor Steven Calabresi, one of the originator of the unitary executive theory, says that, "The impact on this nation is vast and dramatic. It obliterates the independence of agencies that protect the public, such as the Consumer Product Safety Commission, the Election Commission, Security Exchange Commission and much more."

It makes no sense to describe the effects of this bizarre theory in any other terms. That's how its founders brazenly described it.

Somehow Judge Alito expects us to buy his unique and lonely portrayal of this radical theory as something less than it is.

On the Concerned Alumni of Princeton, much has been made of the wide interest in Judge Alito's interest in this organization, and its, frankly, bigoted views. I was pleased that Judge Alito distanced himself from its repulsive anti-woman, anti-black, anti-disability, anti-gay pronouncements; views that we especially pronounced at the time that Judge Alito believes he joined.

But we still do not have a clear answer to why Judge Alito joined this reprehensible group in the first place. We still do not know why he believed that membership in the group would enhance his job application in the Reagan Justice Department. We still don't know why he chose this organization among so many other organizations that he likely belonged to, but somehow can't remember why.

In the Vanguard, some of our Republican colleagues find it shocking that we would even question Judge Alito about his failure to recuse himself from Vanguard cases. But the real shock is that Judge Alito failed to meet his sworn promise to this committee more seriously.

He says it was an oversight that he corrected 12 years after he made that promise. But now we know, from his own testimony and records, that he apparently never put Vanguard on the recusal list, even immediately after his promise to this committee.

KENNEDY: He has failed to give us any plausible explanation. The bottom line is that he just didn't think his commitment to the committee and to the United States Senate was important enough to honor.

In the 1985 job application in my office, Judge Alito tried to distance himself from the ideological views and legal opinions expressed in the '85 job application to the Reagan Justice Department. He brushed it off as just a job application.

Now he has tried, before the committee, to distance himself from the stunning statement that the White House and Congress somehow are superior to the Supreme Court, the keeper of our liberties.

He didn't back away one inch from his view that a woman's right to make her own reproductive decision is not protected under the Constitution. He didn't back away from his criticism of the principle of one person, one vote.

And on the cases he decided, in case after case, we see legal contortions and inconsistent reasoning to bend over backward to help the powerful. He may cite instances to think that he helped the little guy, but the records clear that the average person has a hard time getting a fair shake in Judge Alito's courtroom.

We're not expecting judges to produce particular results in their decisions, but we do expect fairness, for understanding the real-world impact of their decisions.

Frankly, it would be more comforting if Judge Alito gave individuals the same benefit of the doubt in his courtroom that he's asking from this committee on Vanguard, CAP, the unitary executive and women's privacy.

Now the debate over the nomination continues. In the end, this debate really is about the path of progress and the kind of America we hope to become.

America is noblest when it is just to all of its citizens in equal measure. America is freest when the rights and liberties of all are respected. America is strongest when all can share fairly in its prosperity. And we need a court that will hold us true to these guiding principles today and into the future.

Thank you very much, Mr. Chairman.

SPECTER: Thank you, Senator Kennedy.

Senator Hatch has stated his wish to reclaim at this point some of his reserved time.

Senator Hatch?

HATCH: I don't intend to be very long, but I really believe that bringing up Vanguard or the Princeton matter goes beyond the pale at this point in this hearing. And let me just make this case.

Some of your critics, Judge, have focused a lot of attention on the actions over the Vanguard matter. And I think most people who think think this is really a case of much ado about nothing.

Certainly no law required you to recuse yourself in that case. As a matter of fact, the law -- helped put together by one of the leading Democrat ethicist professors of law -- reads as follows: "Financial interest means ownership of a legal or equitable interest, however small, or a relationship as director, adviser or other active participant in the affairs of a party, except that ownership in a mutual or common investment fund that holds securities is not a, quote, 'financial interest,' unquote, in such securities unless the judge participates in the management of the fund."

Now, you did not participate in the management of the fund, right?

ALITO: No, I certainly did not.

HATCH: OK. That's what the law says.

So what's this big case that's being made? It must be that since you signed -- among dozens of pages -- the committee form that says in the initial service, you agreed to recuse yourself in the Vanguard matter.

HATCH: And then you made a mistake 12 years later, which you rectified. In other words, you lived up to to your word in every sense of that term. Whether or not you considered that initial service or not, but anybody who looks at it would have to say, "My gosh, that doesn't mean 12 years from now."

But you even ignored that and said, "I recognize that I made a mistake; I recused myself even when I didn't have to recuse myself and did everything I could to live up to my word," which you did. In other words you lived up to your word.

That's a fair interpretation, isn't it?

ALITO: It is, Senator. I said, even if you read the answer as setting out a promise that would exist -- that would be binding on me for the entire term of my judicial service, I did disqualify myself in the only Vanguard case that ever came before me.

HATCH: And so to imply somehow or other that you were dishonest because you lived up to your word in the end I think is a little bit beyond the pale.

The ABA reviewed this matter and found that you have an excellent record for integrity. You earned, for the second time, the highest American Bar Association rating, of well qualified.

Now, I put in the record yesterday letters from several ethics professors who have examined this issue and found nothing improper.

They agree that you lived up to your word and you didn't have to, nor will you have to in the future. That's what that law says in 28 U.S. Code, Section 455(d)(4)(i). That's what it says.

Now, I might add that includes a letter from Professor Geoffery Hazard. Back when Justice Breyer was up for confirmation and questions were raised about the propriety of him hearing a case in which some argued -- falsely, I think -- that he had a financial interest, my friend from Massachusetts, Senator Kennedy, favorably cited a letter from Professor Hazard that was favorable to Justice Breyer.

HATCH: And by the way, I'm not going to judge the two cases, but it was every bit as much a case as this weak thing that has been brought against you.

Now, what is going on here is nothing but an attempt to make a big deal about nothing, a small thing. And I think it's being done with a bit of old bait and switch, if you ask my opinion.

I might add that when Judge Breyer -- what happened there in the case of Breyer, I reviewed it, I investigated it, and when the facts showed that he did no wrong, as they show you've done no wrong, I came out of the blocks and defended him. And I'm glad I did because he, like you, is an honest man.

Neither Justice Breyer or you have gone into public service to make money. That's pretty apparent.

Now, to have this like you've done something wrong because you made a mistake and then you rectified it, my gosh, how many times do we have to beat that old dead horse?

With regard to the other thing, I have my own opinion as to why that's repeatedly brought up, when you have adequately explained that you didn't remember much about it or anything at all.

Now we find that the Rusher memoranda contained no reference to you. He never heard of you before now. And it makes you wonder: Why are they bringing that up? Well, I've got my opinions on that, and I think my opinions are right.

The fact of the matter is you've been straightforward here, you've honestly answered the questions, you've answered more questions than almost any Supreme Court nominee in my 29 years in the Senate and I don't think you've been fairly treated.

HATCH: And it makes everybody wonder: Why would anyone want to do these jobs?

I know Law Review graduates (sic) who will make more than the chief justice this year, new graduates from law school.

So it's apparent you're going into this because you love your country, you want to serve it. And you've done it well for 15 years. And anybody who knows you knows that, and I know you.

So I think it's just wrong to keep bringing these phony issues up. And you have to ask, "Well, why are they doing it?" Because they're so phony.

That's all I care to say. I reserve the balance of my time.

SPECTER: Thank you, Senator Hatch. Your 18 minutes and 9 seconds will be reserved.

HATCH: Thank you.

SPECTER: Senator Biden has asked for 20 minutes. We're going to be a little more flexible this final round because I see light at the end of the tunnel, quite frankly. I see our conclusion of these hearings probably not tonight, but tomorrow not too late.

We've started all the sessions exactly on time, and we've held to the time limits up until now, which I think we have to do if we want to move ahead.

If you want start to slip on when you start the timing it just gets out of hand, but at this juncture on a final round, we have a little more flexibility. I see the light at the end of the tunnel.

SPECTER: And, Senator Biden, you're recognized for up to 20 minutes, as you have requested. And if you go a little more, my gavel will stay put.

BIDEN: Well, thank you, Mr. Chairman. I'll try not to.

Judge, I heard the chairman -- and I happened to be doing something on Darfur. And I was in the conference room and I heard the chairman say that -- which I agree; he and I have talked about this -- nominees tend to answer as many questions as they think they have to in order to get confirmed. And I would say that that's been the case with all nominees, basically, since Judge Bork.

I'd also add another, I think, truism that's developed is they tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them.

And it all goes to, kind of, a central point here is: What is the public entitled to know about what you think, or what anyone thinks, before they go on the court?

And I realize there's this dynamic tension between your independence as a nominee, wand to be an independent justice, and answering questions.

But having said that, let me go to an area that I hope you'll engage me in. And it goes to executive power.

I have had the dubious distinction, because of my role in the Judiciary Committee and on the Foreign Relations Committee, in the last three or four times forces have been used by a president, to be the guy in charge of -- at least on my side of the aisle -- drafting or negotiating the drafting of the authority to use force, whether it was President Clinton, before that President Bush and even before that the discussion back on Lebanon, with President Reagan, et cetera.

So it's something I've dealt with a lot. Doesn't mean I'm right about it, but I've thought a lot about it.

And now there is a school of thought that's emerging within the administration that is making -- not illegitimate -- an intellectually thought-out claim that the power of the executive in times of war exceed that of what I would argue a majority of the constitutional scholarship has suggested.

BIDEN: And the fellow -- a very bright guy -- who is referred to as the architect of the president's memorandum on the ability of the presidents to conduct military operations against terrorists and nations supporting them is Professor Yoo.

He's written a book called "The Powers of War and Peace." And he makes some claims that are relatively new among the constitutional scholars in his book. And he had urged, when he was at the administration, the president had these authorities.

For example, he says that, "The framing generation well understood that declarations of war were obsolete." He goes on to say, "Given this context, it's clear that Congress' power to declare war does not constrain a president's independent and plenary right, constitutional authority over the use of force."

And he goes on and he argues, as you well know this argument -- I mean, not from your court, just as an informed, intelligent man -- there's a great debate now of whether or not the administration's internal position is correct. And that is, the president has the authority to go to war absent congressional authorization.

And it was a claim made by Bush I and then dropped. Bush I argued that the only reason the declare war provision is in the Constitution is to give the president the authority to go to war if the president didn't want to. That was the claim made.

Similar claim made here, so I want to ask you a question.

Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there's an immediate threat to our national security?

ALITO: Well, that's a question that I don't think is settled by -- the whole issue of the extent of the president's authority to authorize the use of military force without congressional approval has been the subject of a lot of debate.

The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war, and obviously that means something. It gives Congress the power of the purse, and obviously military operations can't be carried out for any length of time without congressional appropriations. Congress is given the power to raise and support an Army, to maintain a Navy, to make the rules for governing the land and the naval forces.

The president has the power of the commander in chief. And I think there's been general agreement and the Prize cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.

BIDEN: Is that the deciding question, if the Congress does not have the time to act?

ALITO: Well, the Prize cases I think are read to go as far as to say that in that limited circumstance the president can act without congressional approval.

A lot of scholars say that what's important as far as congressional approval is not the form, it's not whether it's a formal declaration of war or not, it's whether there is authorization in one form or another.

The war powers resolution was obviously an expression of the view on the part of Congress...

BIDEN: If I can interrupt, Judge, since I'm not going to have much time. The war powers resolution is a legislative act. I don't want to get into that. I'm talking about the war clause.

And the administration argues and Yoo argues that, quote, "I do not think the president is constitutionally required to get legislative authorization for launching military hostilities."

And that's a pretty central question. That means, if that interpretation is taken, the president could invade -- and maybe there's good reason to -- invade Iraq -- excuse me, invade Syria tomorrow or invade Iran tomorrow without any consultation with the United States Congress.

And that's a pretty big deal. Up to now, Fisher and Henkin and most of the scholarship here has said, "No, no, no. The president's authority falls into the zone where he needs it for emergency purposes, where he doesn't have time to consult with the Congress."

But you seem to be agreeing with the interpretation of the president, Professor Yoo, that says, "Nope, the president has the authority, if he thinks it's necessary, to move from a state of peace to a state of war without any congressional authorization."

ALITO: I hope I'm not giving you that impression, Senator, because I didn't mean to...

BIDEN: Oh, OK, maybe you can...

ALITO: ... say that.

I have not read Professor Yoo's book or anything that he or anyone else has written setting out the theory that you've described.

ALITO: I've been trying to describe what I understand the authorities to say in this area. Generally, when this issue has come up, or variations of this issue have come up in relation to a number of recent wars -- there were a number of efforts to raise issues relating to this in relation to the war in Vietnam. There was an effort to raise it in relation to our military operations in the former Yugoslavia. In most of those instances they didn't -- in most of those instances were -- the cases were dismissed by the lower courts under the so-called political question doctrine that you described earlier.

BIDEN: You and I both know that's a different issue. The political question doctrine is a different issue than whether or not you think that -- I'm asking you as a citizen whether you think that as the administration is arguing -- for example, it argues that the case is made, and I'm quoting, "that the Constitution permits the president to violate international law when he's engaged in war." It just states it flatly. That's what the memorandum of the Justice Department states flatly. The president has that sole authority.

He argues the Congress would have that authority as well, just violate international law. He goes on to argue, as does the memorandum argue -- this is this administration's position, so that's why it's relevant. It says that the president may use his commander in chief and executive power to use military force to protect the nation, subject only to the congressional appropriations.

And that means that the argument the administration is making is the only authority that Congress has is to cut off funds. Let's say we didn't want the president to invade Iran.

BIDEN: The administration argues we could pass a resolution saying that, "You have no authority to invade Iran," and the president could the next day invade Iran. Our only recourse would be to cut off appropriations.

But, as you know, there's no way to cut off specific appropriations. You have to cut off appropriations for the entire military, which means it's a totally useless tool for the Congress in today's world. You know?

You can't say, well, I'm going to cut off only the money for the oil that allows the steaming of the ships to get from the East Coast to the Mediterranean sea and/or to the Persian Gulf.

So it's really kind of important, whether or not you think the president does not need the authority of the United States Congress to wage a war where there's not an imminent threat against the United States. And that's my question.

ALITO: And, Senator, if I'm confirmed and if this comes before me -- or perhaps it could come before me on the Court of Appeals -- the first issue would be the political question doctrine that I've described.

But if we were to get beyond that, what I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question...

BIDEN: OK.

ALITO: ... including particularly one that is as momentous as this. I've set out my understanding of what the Constitution does in allocating powers relating to war between the executive and Congress, and some of what some of the leading authorities have said on this question. But beyond that -- and I haven't read Professor Yoo's book or anything that he's written on this issue -- I would have to study the question.

BIDEN: I thank you.

Well, let me move to something you have spoken about, stare decisis. I know it's been raised a number of times. That's basically following precedent.

As a Circuit Court of Appeals judge, in layman's language, what does that mean, you're required to -- as a circuit court -- what does it mean that you're required to adhere to stare decisis?

ALITO: We are required to follow decisions of the Supreme Court, to start out with because it's a superior court. We when we sit as a panel, it is our practice and I think it's the practice of all the courts of appeals that one panel can't overrule a decision of another panel.

So it means that. When we sit en banc, it is a doctrine that counsels adherence to prior precedent.

BIDEN: But you're allowed in that -- like you did in ACLU v. Schundler, you concluded, which I think you had a right to do, that the precedent of your circuit was incorrect. And you ruled the other way.

I think you had a right to do that, right?

ALITO: We can't do that at the panel level. We can't say a prior panel decision is incorrect.

BIDEN: No, but you can when you sit en banc?

ALITO: When we sit en banc, we can.

BIDEN: When all the justices...

ALITO: That's correct.

BIDEN: OK. Now, how about for a Supreme Court justice; a Supreme Court justice is not required, is he or she, to follow the precedent of the Supreme Court?

Stare decisis doesn't apply there, does it? It may be practiced, but as a practical matter, no scholar say you're required, as a Supreme Court justice to adhere to precedent, are they -- is it?

ALITO: Well, stare decisis certainly applies. Stare decisis takes different forms. There's what some people call horizontal stare decisis, which means a lower court has to follow the higher court -- I'm sorry -- vertical stare decisis.

And then there are various forms of horizontal stare decisis which means a court either must or should follow its own prior precedents. And, on the Supreme Court, of course, when we're talking about whether the Supreme Court is going to follow a prior Supreme Court precedent, that's horizontal.

And there it isn't an absolute requirement to follow a prior precedent.

BIDEN: It is not?

ALITO: It is not an absolute requirement, but it is the presumption that the court will follow its prior precedents.

BIDEN: I understand that. But no one would argue that if you or any other justice broke from -- clearly broke from the precedent of a Supreme Court decision, that you're in any way violating your ethical responsibility as a judge.

BIDEN: You're entitled to do that. Not that you would, but you're entitled to do that, and no one would question that as a matter of right. Is that not correct?

ALITO: I think people would question it, if you disregarded the factors that go into the stare decisis analysis. If you said I don't believe, I'm not absolutely required to follow prior Supreme Court precedent, and I regard every question as a completely open question, I think...

BIDEN: With all due respect, the way it would likely take the form is a justice could say I disagree with the line of cases that say that, you know, a president needs congressional authority, or that a, whatever the line of cases are.

They're not likely to say I disregard stare decisis. It's like what Scalia said in the abortion case, he said, "Look, we just look at this head on. Roe v. Wade is wrongly decided. We should just say so." And he's entitled to do that. And if he had a majority -- I'm not suggesting what you would do on that -- he's entitled to do that, and that wouldn't be a violation of any written or unwritten code that relates to a Supreme Court justice's conduct, would it?

ALITO: Different justices and different judges have different views about stare decisis, but my view is that you need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important.

ALITO: But I've also said it's not an inexorable command.

In the area of constitutional law, there has to be the ability to revisit a case like Plessy v. Ferguson. I don't think anybody would want a system of stare decisis that made that impossible.

BIDEN: OK.

My time -- three minutes left -- I'd like to try to get quickly to another area here, if I may, that you've been questioned on, this notion of unitary executive and the questions referencing Morrison and the dissent of Scalia, et cetera.

As I reach and teach the dissent of Scalia -- and I won't take the time, in the interest of time, to read his exact language -- he has a very scathing and intellectually justifiable, many would argue, criticism of the test employed by the majority in that case to determine whether separation of powers has been breached. He argues there are very bright lines, that there can be no sharing of any of the power. If it's an executive power, it's an executive power and it's executive power.

He would argue that the alphabet agencies -- the FDA, the FCC, the EPA -- they are really not constitutionally permissible because the FDA makes a legislative judgment, it makes a judicial judgment, and it imposes fines and penalties, and so therefore it does all three things as sort of the bastard child.

But most of the -- the majority of the justices say that as long as the power one branch is using does not unduly trench upon the power of the other branch, or it does not substantially affect its ability to carry out its powers, then that's permissible.

BIDEN: Which school of thought do you fall into?

ALITO: Well, different issues are presented in different factual situations.

BIDEN: That's why I didn't give you a specific issue.

ALITO: Well, I think you need a specific issue in order to answer it's. For example...

BIDEN: OK, the FDA, is it constitutional, Federal Drug Administration?

ALITO: I don't know whether there are statutory restrictions on the removal of the FDA commissioner.

BIDEN: No, but there are. The FDA does exercise judicial power. It makes judgments -- "You, drug company A, violated the law."

ALITO: And I don't know any constitutional object to that.

BIDEN: Well, Scalia?

ALITO: I don't know that he would have a constitutional objection to that. My understanding is that he would not have a constitutional objection to their doing that, but I could be mistaken.

And I wouldn't want to prejudge my constitutional question that might be presented to me. But I'm not aware of a constitutional -- if there isn't any limitation on removal, then there obviously isn't a removal issue there.

As to the agencies where there are restrictions on the removal of commissioners who are appointed for a term, that issue is dealt with in Humphrey's Executor and Weiner and in Morrison. And Morrison was 8-1 and the other cases would be, sort of, a fortiori from Morrison.

BIDEN: Well, my time's up. And hopefully someone will pursue this unitary executive issue about private suits, because I thought what you explained was a little inconsistent, or I don't understand it. But I'll let someone else do that.

Thank you very much.

SPECTER: Thanks very much, Senator Biden.

Senator Grassley has asked that his time be reserved. Senator Grassley has other duties which he had to attend to. He was here earlier; will be back. He's also chairman of the Finance Committee.

Just a word, when senators come and go -- everybody has many committees and many constituents and many visitors and many callers. So when they're not here, you can conclude they're otherwise engaged.

And Senator Grassley is now.

SPECTER: But his time is reserved.

Senator Kohl has asked for 20 minutes.

Senator Kohl, we'll set the clock at 20 minutes for you. And as I said earlier, we have some flexibility here.

KOHL: I thank you very much, Mr. Chairman.

Judge Alito, elected officials make decisions on issues every day as we try to best represent the people of our states. And if our constituents do not think that the choices we make reflect their opinions, then every few years they have an opportunity to vote for someone else.

As you know, that's not the case with the courts. Once confirmed, federal judges have lifetime tenure and are virtually unaccountable.

And that lifetime tenure can result in a judge or in a court that is removed from the thoughts and opinions of most Americans. As public opinion changes on an issue, the court may cease to reflect the views of the country.

If the courts take positions contrary to what most Americans think about an issue or a decide case, very important case, in a way that is clearly out of the mainstream of American thought, what can be done about it? And do you think that the courts need to consider public opinion when deciding cases?

ALITO: I think that the courts were structured the way they are so that they would not decide their cases based on public opinion.

If the framers had wanted the federal courts to follow public opinion, then they would have made federal judges elected officials, as state judges are in many states.

ALITO: They gave them lifetime tenure because they thought there was a critical difference between deciding cases under the Constitution and the laws and responding to public opinion.

Now, they gave the courts limited authority because they wanted most of the decisions that affect people's daily lives to be made by the branches of government that are directly responsible to the people, so that the people can control their own destiny.

The framers' theory was that sovereignty lay with the people and the government was legitimate only insofar as it responded to the people. And that's why Congress is structured the way it is, that's why the presidency is structured the way it is.

But the courts were viewed -- the courts are not a democratic institution. And they were structured the way they are because they saw a difference between the judicial function and the other functions that are performed by the branches of the federal government.

KOHL: Well, and yet the courts, particularly the Rehnquist court, has struck down more laws than any court in recent memory, in response to your comment about the legislatures as being involved in the daily lives of people. And the rate that they've been striking down laws during the Rehnquist court was six times faster than during the first 200 years of our republic.

So how do we deal with the fact that while the legislature, in your opinion, is supposed to represent the daily lives of people, the courts, particularly Supreme Court in recent years, has been striking down the laws of the legislature more often than ever before?

ALITO: Acts of Congress are presumptively constitutional and I don't think that saying that is just words.

ALITO: I think that means something. Members of Congress take an oath to support the Constitution and I think that the presumption of constitutionality means a lot.

And I think that judgments that are reached by the legislative branch in the form of findings of fact, for example, are entitled to great respect because of the structure of our government, the fact that the basic policy decisions are supposed to be made by the legislative branch and carried out by the executive branch, and also for the practical reason or the functional reason that Congress is in a better position to evaluate conditions in our country and conditions in our society and to make findings and to determine what's appropriate to deal with the social and economic problems that we face.

So I would certainly approach the question of determining whether an act of Congress is constitutional with a heavy presumption in favor of the constitutionality of what Congress has done.

Now, ultimately, Marbury v. Madison decided the question that when a case or controversy comes before the Supreme Court, and the constitutionality of an act of Congress is challenged, it is the duty of the court to decide the question. Unless we were going to go back to 1819, then that's the practice that the federal courts have to follow. But they should always do that with an appreciation of their limited role and the role that the legislature is supposed to play.

KOHL: All right. As a follow-up to that, would you comment on term limits for federal judges or age limits for federal judges?

KOHL: As you know, if a judge so wishes, he or she can serve forever. Do you think that's a good thing in our society?

Should judges be term limited? Should judges, at least, be age limited? Or should they serve just as long as they wish?

ALITO: Well, those are issues that are decided by the Constitution. The framers said that federal judges have life tenure. So, without amending the Constitution, I don't think you could make, you could you have judges serve for a term of years or impose an age limitation on...

KOHL: What is your opinion?

ALITO: On federal judges? I'm not really sure. I understand the arguments in favor of doing both of those things. And state courts do that.

And, although I said yesterday, I didn't think we should look to foreign law in interpreting our Constitution, I don't see a problem in looking to the practices of foreign countries in the way they organize their constitutional courts.

And I believe that many of them do have term limitations on the length of service of a member of the highest court and other members of the judiciary.

So, there are arguments on both sides of the question. If you had a short term of years, you would have a judiciary that was like an elected judiciary. And you would have the advantages and the disadvantages of that kind of structure.

ALITO: But there are arguments on both sides of the question. And it's for other people to decide...

KOHL: Right. We're asking you -- you know, I appreciate that and I appreciate your thoughtfulness. But again, this is the only time -- today may be the last time -- that we ever have a chance as a nation to talk to you.

So you have a thought on it? I mean, I can't believe you don't have a thought. You know, we're not going to amend the Constitution tomorrow based on your thought that you expressed today.

But what is your thought? Do you think it's a good thing for judges to serve unaccountably forever, no age limits, no term limit? Or do you think it might be the best thing for our society for judges, after a reasonably long period of time if you so wish or at a certain age, to phase themselves out?

ALITO: If I had been a delegate to the Constitutional Convention in Philadelphia in 1787, which is a little hard for me to imagine, but if I had been there, and knowing the way things work out, I guess I would narrow the range of possibilities down to -- the range of options that I would consider down to either life tenure or a long term of years so that the judiciary would be insulated from being swayed by popular opinion during a particular period as to the constitutional questions that come before them.

And as between those, I'm not sure which I would choose. If the judiciary is going to exercise the power of judicial review in enforcing constitutional rights, then I would think that one of those two options would be the best.

But I wasn't in Philadelphia in 1787. So I have (inaudible) on that question.

KOHL: Judge, at the end of its term last year, in a 5-4 decision, the Supreme Court ruled in Kelo v. City of New London that it was constitutional for a local government to seize private property for private economic development.

Many people are alarmed about the consequences of this ruling because of the words of Justice O'Connor. Under the logic of the Kelo case, quote, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton, any home with a shopping mall or any farm with a factory," unquote.

KOHL: So what is your view of the Kelo decision, Judge Alito?

ALITO: Well, what I can say is that it's a precedent of the court, and it built on the Midkiff decision, which had been handed down a number of years earlier.

I know that it touches some very sensitive nerves. When someone's home is being taken away, using the power of eminent domain, that is a blow to a lot of people.

Even if they're going to get compensated at fair market value for their home, the home often means more to people than just dollars and cents. It's a place that often involves a lot of emotion. They have emotional attachments to it. They've lived in it a long time. They're familiar with the neighborhood. They want to be with the neighbors they like. They want to stay in the same area. They may have emotional attachments to things in the home.

So it's a tremendous blow. And I suppose that when -- I would imagine that when someone's home is being taken away, a modest home, for the purpose of building a very expensive commercial structure, that that is particularly galling.

But Kelo was the decision of the court, and I've got my view about stare decisis. And should that issue come up again, then obviously the stare decisis factors would have to be considered. The stare decisis question would have to be the first question addressed. And the factors that I've discussed would have to be weighed.

KOHL: Well, your comment is, "On the one, and on the other hand," and I do appreciate that.

KOHL: But I'd ask you, if you would, venture an opinion more precisely, specifically, do you agree in general with Justice O'Connor's dissent?

ALITO: Well, Senator, I don't think I can answer that beyond what I've said.

If the issue were to come before me and if I'm confirmed, then I would first have to consider whether there's any reason for not following Kelo, which is a precedent of the Supreme Court and grew out of the earlier precedent that I discussed, that I mentioned.

Now, I'm not suggesting which way I would decide that question of stare decisis, but that is the way our legal system works; that decisions are presumptively to be followed. And I would have to address that question.

If I got beyond it, I would have to go through the whole judicial process that is set up so that questions of constitutional law and other questions are decided in the best way, reading the briefs, listening to the arguments, participating in the conference and only after that reaching a decision on the merits of it.

KOHL: All right.

As a follow-up, Judge Alito, if confirmed you'll be replacing Justice O'Connor, who is a justice who will be remembered by history as one of the most influential justices of the 20th century. She's also, as you know, a much beloved person.

How will you be different from her, Judge Alito? How do you think Justice O'Connor ought to be remembered, Judge Alito? And how are you like or not like Justice O'Connor as a judge?

ALITO: She certainly will be remembered from many reasons and I think with great admiration. I think she is held in great admiration by the American people at this time, and I think that when people look back they will have great admiration for her work.

She obviously was a pioneering figure, and was an inspiration for many people who want to pursue legal careers and other careers.

She has been a very dedicated justice and has been known for her meticulous devotion to the facts of the particular cases that come before her and her belief that each case needs to be decided on its complex facts, and that's something that is an important part of our judicial process.

I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication, which is what I think the Supreme Court and the other federal courts should carry out. I think that is a central feature of best traditions of our judicial system.

KOHL: She was seen as someone who in a general way was a dissenter of the court. You never had an idea whether she might look a little left or a little right, but she was seen as the center of the court, which as you know is central to your nomination.

And you've said you had great respect for her. You've said you respect her as a justice who did look at the facts and made judgments based on those facts, which is -- I think, you would say about yourself -- umpire calling balls and strikes, pretty much as they see them.

Do you see yourself as a justice, if you're confirmed, who in many ways will fill the same role as Justice O'Connor has filled?

ALITO: I think that anybody who is appointed to any judicial position has to be himself or herself. And I don't think that anybody can try to replace the person or can duplicate the approach of the person who that person is replacing.

ALITO: We all have to proceed in accordance with our own abilities and our own outlook.

And so I don't think that -- I think we all have to be who we are. But I think we can emulate the great jurists of the past. Which is not to say that we can equal them, but we can look at what they've done and see the things that they've done very well and try to approach what they've done in various areas.

And I think that I certainly would try to emulate Justice O'Connor in the ways that I've described. I wouldn't flatter myself to say that I could equal her in any of those ways, but I would certainly try to emulate the conscientious and dignified way in which she's gone about the performance of her judicial duties.

KOHL: You may have answered this question already, but as I said, she was at the center of the court -- at least viewed as a person at the center of the court and served a very useful purpose in that respect.

Is it, in your opinion, likely that you might turn out, in a general way, to be that kind of a justice?

ALITO: I can only answer that, really, by saying what I think I've said before, which is that I'd be the same sort of justice in the Supreme Court as I've been a judge on the court of appeals.

ALITO: I am my own person, with whatever abilities I have and whatever limitations I have. And I think if anybody looks at my record on the court of appeals they can get an idea about the way I approach the work of being a judge. And that's what I would try to do on the Supreme Court.

I don't think I can do anything other than that, and that's what I think I should do, and that's what I would do if I'm confirmed.

KOHL: Judge Alito, I thank you very much.

Mr. Chairman, I thank you very much.

SPECTER: Thank you, Senator Kohl.

We'll take our break now and resume at 10 minutes after 11:00.

(RECESS)

SPECTER: Welcome back, Judge Alito. A thought just crossed my mind that this is the only time when you walk into a room that everybody doesn't stand up.

(LAUGHTER)

ALITO: That happens to me all the time at home, Senator.

(LAUGHTER)

SPECTER: I'm not saying when you come home, Judge Alito. The reception for a judge or a senator or even the chief justice is very different at home than when he walks into a room and a bailiff shouts, "All rise." Just crossed my mind that we weren't all standing up. But as Chief Justice Roberts said, this is a discussion among equals; that is, until you're confirmed, if confirmed.

Senator Kyl?

KYL: Mr. Chairman, I'll reserve my questions for now. Thank you.

SPECTER: Senator Kyl is reserving his time.

Senator Feinstein is about to join us, coming in, so we'll await her arrival, which should be imminently.

I think Senator Feinstein is going to be a few moments or more, so let's turn to Senator Feingold.

FEINGOLD: Mr. Chairman, if that's your wish, I'd certainly defer to Senator Feinstein if she wants to reclaim her time when she comes. But I'll get started if you want.

SPECTER: Let's wait another minute or two for her. She's not in the back room and she's not in the corridor. But let's wait another minute or two for her.

SPECTER: Senator Feinstein, you have made another dramatic entrance. We were all assembled for the committee action on Chief Justice Roberts' when you were on the floor in your position on the Appropriations Committee, managing a bill, and the 17 of us were there.

FEINSTEIN: Not quite, but I thank you for that...

SPECTER: And you walked in with drama, as today. You have asked for up to 10 minutes, Senator Feinstein. We will set the clock at 10, but as I have indicated, we have some flexibility. We see the light at the end of the tunnel.

FEINSTEIN: I may take 20, if that is all right with you, Mr. Chairman.

SPECTER: We'll reset the clock at 20, Senator Feinstein.

FEINSTEIN: Thank you.

Good morning, Judge Alito.

ALITO: Good morning.

FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law.

And you made comments about the balance of powers, that all branches of government are equal.

There are three of us on this committee -- Senator Hatch, Senator DeWine and myself -- that also serve on the Intelligence Committee.

FEINSTEIN: And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America's intelligence activities.

And so this question of presidential authority at a time of crisis -- not necessarily a full declaration of war state to state, but a time of crisis -- because very prescient right now.

And I wanted to talk to you a little bit about the president's plenary authorities as commander in chief -- "plenary" meaning unrestrained and unrestrainable, his plenary authorities to defend the United States -- and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role.

Now, we have explicit powers, as you've said, under the Constitution. And in Section 8, we have the explicit power to raise and support armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It's headed by a general.

So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic).

Now, again to the Jackson test. When the president's power is in least is when the Congress has legislated. And this is where the national -- excuse me -- the Foreign Intelligence Surveillance Act, known as FISA, comes in.

FEINSTEIN: And FISA is very explicit. And let me read a part of it to you.

"Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted."

It does provide -- you used the word "general." It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go -- the attorney general can authorize, provided they go to the FISA court within 72 hours.

I was concerned; there are two questions in this one statement.

FEINSTEIN: The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?

ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute.

But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed.

So he is given the responsibility of making sure that the laws are carried out.

FEINSTEIN: Let me press you on "unconstitutional." Very few of us on this committee are not lawyers. I'm one of them. So let me just speak in common, everyday terms.

There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done.

As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words "deter and preempt any future acts of terrorism or aggression against the United States."

FEINSTEIN: And he refused to do it.

And, Mr. Chairman, if I could place this...

SPECTER: Without objection.

FEINSTEIN: ... statement in the record, since we are going to be having hearings on what's happened. I think this is an inappropriate bit of legislative history. I'd like to place it in the record.

SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.

FEINSTEIN: Thank you.

So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans.

The question then comes, I guess, does the plenary power of the president supersede this?

ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions.

The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force?

And I don't know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other.

Of course, there's a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation.

But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law -- or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that's being dealt with?

ALITO: And I think legislative history can be appropriately consulted.

And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation.

Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question.

And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.

FEINSTEIN: Let me stop you right here, because that's right.

Because detention is a necessary following of an authorization of military force, so detention is logical.

When you've got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without -- and I'm not saying there isn't a reason to do this.

FEINSTEIN: What I'm saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn't that law prevail?

ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter.

Then, depending on how that issue was resolved, it would be -- it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson's method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization...

FEINSTEIN: There was. No statutory authorization to wiretap, right?

ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would...

FEINSTEIN: But, if there wasn't...

ALITO: There might be a constitutional issue. Let me stop there.

There would be a Fourth Amendment issue, obviously.

If you went beyond -- if you determined that there was not statutory authorization, then as far as the issue of presidential power is concerned, you would be in Justice Jackson's scheme, in the category where the president -- you would have to determine if this is the argument that is made; whether the president's power, inherent powers, the powers given to the president under Article II, are sufficient, even taking away congressional authorization, the area where the president is asserting a power to do something in the face of an explicit congressional determination to the contrary.

FEINSTEIN: Now, in my lay mind, the way I interpret that -- and correct me if I'm wrong -- is that you essentially have a conflict, and that it hasn't been decided whether one trumps the other.

ALITO: I think that's close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.

FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?

ALITO: Well, I'm not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential -- he said it expressly -- presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.

FEINSTEIN: OK. Enough of that. Let me move on.

In WR Grace v. the EPA, a chemical company released large amounts of ammonia into the local aquifer in Lansing, Michigan. Under the Safe Drinking Water Act, the EPA ordered the chemical company to clean up the discharge to reduce the concentration of ammonia to a level that wouldn't threaten the health of the community.

FEINSTEIN: The chemical company challenged this EPA decision. You cast, as I understand it, the decisive vote to overrule the EPA, permitting the company to leave more ammonia in the aquifer, despite the EPA's determination that this level of ammonia would continue to endanger the water supply.

In her dissent, Judge Mansmann urged deference to the EPA in matters of science, noting that, quote, "The high degree of deference we are to accord the EPA is a cornerstone to the EPA's power, enshrined in the Safe Drinking Water Act, to protect the public health, the environment and public water supplies from the pernicious effects of toxic wastes," end quote.

Do you agree with the dissent that a reviewing court must generally be at its most deferential when reviewing factual determinations within an agency's special area of expertise?

ALITO: I do agree with that. I don't think there's any question about that.

FEINSTEIN: Do you believe that where an agency is taking action to protect the health of citizens, additional deference should be given?

ALITO: I think that deference is owed to the expertise of administrative agencies. That's an important part of administrative law. And when you're dealing with an agency like the EPA, you would defer to their area of expertise. And I think that's correct.

FEINSTEIN: Should the EPA be accorded the same deference as other governmental agencies?

ALITO: I don't see why it should not. It's the expert on environmental questions.

ALITO: And, for example, if the EPA issues regulations interpreting a statutory provision and its given broad authority under the environmental laws frequently to implement choices that are reflected in the legislation, then I think that it's entitled to a broad measure of deference under the Chevron decision if it issues rules and if any reasonable interpretation of the statute is entitled to deference from the courts.

FEINSTEIN: OK. Let me go way back.

And I recognize that time has gone by and I recognize you were in a different position, but these questions are really aimed to point out the importance of the commerce clause to us.

In 1986, Congress passed the Truth in Mileage Act to prevent odometer fraud. As deputy at the Office of Legal Counsel, you recommended that President Reagan veto the bill because you believed it violated the principles of federalism.

In the draft statement for the president, you wrote, "It is the states and not the federal government that are charged with protecting the health, safety and welfare of their citizens," that's a quote. President Reagan did sign the Truth in Mileage Act.

Does it remain your opinion that it is the states, not the federal government, that are charged with protecting the health, safety and welfare of Americans?

ALITO: Both the federal government and the states have responsibilities in those areas.

Historically, the primary responsibility with respect to those concerns has been with the states. But with the expansion of federal regulatory programs, the federal government has taken on broader and broader responsibilities in those areas and now has very substantial responsibilities in all of those areas under regulatory schemes that have been in place for a long time and I don't believe are being challenged on constitutional grounds at this time.

If I could just say a word about that memo, which I read for the first time in 20 years recently, it's a brief statement. And as I read it, what it is primarily expressing it is not an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan ministration.

The Reagan administration had a policy of implementing its view of federalism concerns through policy-making decisions.

ALITO: In other words, its policy was to go further in respecting what it viewed as the federalist system -- as our federal system of government than the Constitution required, to go further as a policy matter.

And as I read the brief statement, that's what was being expressed there.

FEINSTEIN: So if I understand that, quickly, what you're saying is, this was written as staff in an administration to follow a policy.

But are you also saying, as a judge, this would not necessarily be a position that you would hold in any case?

ALITO: As a judge, I would have no authority and certainly would not try to implement any policy ideas about federalism.

Congress can implement policy ideas about federalism. The Garcia case, in fact, is based on the view -- this is what the Supreme Court said there -- that the primary way in which the federalism concerns that were expressed in National League of Cities was to be implemented in the future was through policy decisions made by Congress.

They said the states are represented in Congress through the membership in the Senate. And protection of the prerogatives of the states should be left to policy decisions made by Congress or decisions made by Congress in implementing its view of how the system of federalism should work.

ALITO: And an executive, a president, can take a similar approach. A president can say: Although the Constitution allows the authority of the federal government to go this far, as a policy matter, I do not want to go along with legislation that goes up to the limits of what the Constitution allows. As a policy matter, I want to stop short of that. As I read this memo, that is what we were saying there.

FEINSTEIN: Thank you very much.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Feinstein.

Senator Grassley has stated his interest in claiming some of his reserve time.

Senator Grassley?

GRASSLEY: A small part of it.

Number one, to make a point that I hope would put a lot of my colleagues who have raised questions about some theory you have about this or that; that whatever political science theories you might have about the executive branch of government, I do not worry about that and I would hope my colleagues would not worry about that because you could have a hundred theories and they could be all crazy. But is it not right that you are a person that is bound by the Constitution to only hear cases and controversies that come before the Supreme Court?

And so, you know, whatever comes before you, you are responsible for deciding it within the constitutional case and controversy.

Secondly, it seems to me that you are a person who has the judicial temperament, as you said so many times, that you are going to keep your own personal views out of it.

It seems to me that you are a person that has indicated to us that you are going to look at a case within the four corners of the law and the facts that apply to that case and nothing more.

GRASSLEY: So any theories you might have about -- what was it called, unitary executive or something -- what's that got to do with your deciding a case?

ALITO: Senator, you are exactly right. If cases involving this area of constitutional law come before me, I will look to the precedents of the Supreme Court. And that's what I think I've been trying to emphasize.

And there are governing precedents in this area. There is Humphrey's Executor and Wiener and, most recently, Morrison, which was an 8-1 decision.

GRASSLEY: Then the other thing -- I'd take an opportunity to just tell you something and not want any response. But that is on the False Claims Act.

This act was originally passed in 1862 because Lincoln didn't have enough people to prosecute fraud by military people against the government. So he empowered individuals to do that under qui tam.

And then in 1942, I think it was, the law was gutted by taking out the qui tam provisions, probably because of World War II and the necessity of getting the job of military construction done.

And then in the 1980s we found a heck of a lot of military -- fraudulent use of taxpayers' money.

GRASSLEY: We held a lot of hearings on that. It came that there wasn't enough being done by the Justice Department to take care of it. We saw the Justice Department making a lot of global settlements.

You know, some company that had done a massive amount of wrong in many areas, and maybe having the Justice Department settle one little dispute, but give a global settlement so that they'd never be prosecuted for anything after that, it led us to beefing up the False Claims Act by putting the qui tam provisions in it.

And it was a terrible thing to get through Congress. I think six months after we voted out of committee, we had every senator putting a hold on it, some bequest of somebody in the defense industry. And you take care of that little problem, and another put a hold on it, and another one put a hold on it.

And finally, the last person was a friend of mine that had a hold on it. I said, "Why did you have a hold on it?"

"Well, some of my friends said that's bad for the defense industry."

And I talked to him about it, and he says, "You know, you're absolutely right."

And we got the last hold off and we got it passed and we got it signed by the president of the United States.

And then over the last several years, we have had the defense industry going, trying to gut it again. Then we had the hospital association trying to gut it because we were using it in medical care.

And it's brought in $12 billion into the federal treasury. And I think it's even had the benefit of discouraging a lot of activity that would go on normally that saved the taxpayers' money without prosecution.

But there are people in the Justice Department, the professional people in the Justice Department, doesn't want some citizen looking over their head and doing their job for them when they aren't doing it.

GRASSLEY: And a district judge in the mid-'80s, or maybe it was the late '80s, in, I think, a General Electric case someplace in Ohio -- when the Justice Department was trying to cut back the award that the relator was going to get, said to this Justice Department guy, "Don't you get it? You wouldn't even have a case if it wasn't for this whistleblower coming forward to make their statement and to make their case."

And, you know, it's grown into quite a thing now.

The only thing I regret about it -- there's a lot of lawyers that are tort attorneys out there getting rich off of it, but there's also a lot of coming in to the federal treasury. And about 15 percent is what it would cost the federal government anyway to bring in the same amount of money if they prosecute it, but they won't prosecute it. And they don't know about all of it. And you've got to rely on the whistleblowers to get the information out there.

So when you're in your very private meetings that you have after you get on the Supreme Court and you're talking about these things, I hope you'll remember that this was meant to serve a worthy purpose, is serving a worthy purpose. And I'd like to have you look at it in a very unbiased way.

(LAUGHTER)

I reserve the rest of my time.

SPECTER: Judge Alito, Senator Grassley's going to follow that up with a strong letter.

(LAUGHTER)

GRASSLEY: The chairman remembers we even had to subpoena William French Smith one time in this whole process.

LEAHY: Chuck, I think we know where you stand on this.

GRASSLEY: OK.

SPECTER: To use a little bit more of my time, Senator Grassley did more than subpoena Attorney General William French Smith; he started proceedings to hold him in contempt.

And that was at about a time when Attorney General Smith was inviting some members of the Judiciary Committee to have lunch. And he was very dour during the entire lunch as far as his attitude toward me and I found out why at the end of the lunch: He wanted to know why I wanted to hold him in contempt. He'd insulted Senator Grassley to the nth degree by confusing me with him.

(LAUGHTER)

Tell your Anita Hill story, Chuck.

GRASSLEY: Well, just to show you how they get mixed up, you know, he asked the questions of Anita Hill and I was sitting behind him, or beside him very quietly because only two Republicans were going to ask questions.

And I went back to my constituency and everybody said to me, "You were awful to Anita Hill. You just treated her awful," because they got me mixed up with him.

(LAUGHTER)

SPECTER: Wait. I didn't know you're going to tell that part of the story.

(LAUGHTER)

GRASSLEY: I thought that's the only part we talked about.

SPECTER: We're just trying to use a little time over here to give you just a little respite from the...

LEAHY: Fortunately, none of this is on television so nobody knows what we're saying here on this story.

SPECTER: Senator Feingold, you haven't told me how much time you'd like to have.

FEINGOLD: I think 25 minutes with flexibility. Maybe I won't have to use it all.

SPECTER: So granted.

Set the clock at 25 minutes.

And you're recognized, Senator Feingold.

FEINGOLD: Thank you, Mr. Chairman.

Good morning, Judge. It's nice to talk to you in the morning for once.

And, thank you, Mr. Chairman, for the opportunity to ask a third round of questions. And I do appreciate the latitude on the time, if it's necessary.

(LAUGHTER)

First, Judge, I want to thank you for arranging to have put together the list of people who participated in your practice sessions.

I'm going to say that I am still somewhat troubled by the idea that you were prepared for this hearing by some lawyers who were very much involved in promoting the purported legal justification for the NSA wiretapping program.

Obviously, this issue of presidential power is so central to this hearing. In fact, my first questions will also be about this as well.

I note, for example, that one of the people who participated in these sessions was Benjamin Powell.

FEINGOLD: He recently advised President Bush on intelligence matters and was just given a recess appointment as general counsel to the national intelligence director.

I also see the name of White House Counsel Harriet Miers on the list. And she, obviously, is involved in the president's position on this matter.

So I'm just going to continue to think about this issue. And I hope that you and the department will, too. I think you would agree that at some point, in a situation like this, an ethical issue could arise.

Let me go back, though, to what many senators have asked you about, including most recently Senator Feinstein. I want to try again to clarify this issue of the constitutional authority of the president to violate a criminal statute.

You've said repeatedly that the president is not above the law. But you've also been careful to qualify this statement by saying that the president must always follow the Constitution and laws that are consistent with the Constitution. And that statement sounds good until you look at it real closely.

After all, everyone agrees that the president must follow constitutional laws. The question is whether presidents can claim inherent power under the Constitution that allow them, in certain cases, to violate a criminal law.

And your formulation seems to leave open the possibility that the president can assert inherent authority to violate the criminal law and still be following -- to use your words -- the Constitution and laws that are consistent with the Constitution.

So I'd like to ask you -- assuming that you've already done phase one, step one, the statutory analysis -- in your view, just because a law is constitutional as it's written, like a murder statute or FISA, that doesn't actually answer the question of whether the president can violate it, does it?

ALITO: I do not think I would separate the constitutional questions into categories. I think it follows from the structure of our Constitution that the Constitution trumps a statute. That was the issue in Marbury v. Madison. It would be rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example...

FEINGOLD: But it is possible, based on your answers, that a statute that has been determined, standing on its own to be constitutional, could in theory run in some conflict with an inherent, as you would say, constitutional power of the president, which in theory, even under Justice Jackson's test, could trump the seemingly constitutional criminal statute -- is that correct?

ALITO: I'm not sure what standing on its own means there. Somebody gave an example in a Law Review article I remember reading of a statute that said that a particular named individual was to be immediately taken into custody by federal law enforcement agents and taken immediately to a certain place to be executed.

Would the president be bound, under his responsibility to take care that the laws are faithfully executed, would the president be legally obligated to do that, even though it flies in the face of some of the most fundamental guarantees in the Constitution?

I think we would all say in a situation like that, no, the Constitution trumps the statutory enactment.

FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute?

ALITO: I want to be very precise on this. What I have said -- and I don't think I can go further than to say this -- is that that situation seems to be exactly what is -- to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do has been explicitly disapproved by Congress.

ALITO: So his own taxonomy contemplates the possibility that -- says that there is this category, and cases can fall in this category. And he seems to contemplate the possibility that that might be justified.

But I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don't think I can go beyond that.

FEINGOLD: I understand that's been your position. I've heard the repeated references to Justice Jackson's test. But all that test says in the end is that the president's power is at the lowest ebb at that point. And I understand, and obviously have enormous regard for Justice Jackson and that opinion in particular.

But I think in this time it leaves me troubled. I'm concerned that if we're simply going to rely on that in the end without getting a better sense of where you might come down in these kind of matters, that it really goes to the very heart of our system of government.

And if somehow that -- even if the president's power is at a very low ebb at that point, I think it still leaves open the possibility of enough ambiguity and vagueness that it could alter the basic balance between the Congress and the presidential power in a way that could affect our very system of government.

ALITO: Well, Senator, this is a momentous constitutional issue. It is the kind of constitutional issue that generally is not resolved -- well, let me say this. It often comes up in a context that is not justiciable.

But I think it would be irresponsible for me to say anything on the substance of the question here.

ALITO: And by not saying it, I don't mean to suggest in any way how I would come out on the question. I don't mean to suggest there could be a case where it would be justified or not.

Particularly, on an issue of this magnitude, I think anybody in my position can say no more than, "This is the framework that the Supreme Court precedents have provided for us. And when the issue comes up, if it comes up, if it comes before me, if it is justiciable, I will analyze it thoroughly." And that's all I can say.

FEINGOLD: And I respect your constraints in this regard.

And, frankly, this isn't so much about you or your appointment. This is about the possibility that you've raised that this may not be justiciable, which is going to be a very serious problem for our system of government if the United States Supreme Court cannot help us resolve these issues because of justiciability issues.

At a time of crisis like this in terms of the fight against terrorism, I think it raises one of the most important issues in the history of our country's constitutional debate. I don't think you disagree with that. But it really troubles me that the Supreme Court could possibly not help us resolve this.

ALITO: And I don't I want to suggest that it is or is not justiciable. We would look to the Baker v. Carr factors.

And that's something else that it would be very irresponsible for me to express an opinion on in this forum. And I want to make it perfectly clear that I'm not doing that.

FEINGOLD: Do you think it could ever be constitutional to admit evidence obtained by torture against an individual who is being charged with a crime?

ALITO: Well, the Fifth Amendment prohibits compelled self- incrimination. And it's long been established that evidence that is obtained through torture is inadmissible in our courts. That's the governing principle.

FEINGOLD: I take that answer to mean it could not be constitutional to admit evidence obtained by torture against someone accused of a crime.

ALITO: In all the contexts that I'm familiar with, that would be the answer.

FEINGOLD: Thank you for that answer.

I want to follow up on one question that Senator Leahy asked this morning about the constitutionality of executing an innocent person.

You said that the Constitution, of course, is designed to prevent that. We all agree on that.

But let's say that the trial was procedurally perfect and there were no legal or constitutional errors, but later evidence proves that the person convicted was unquestionably innocent. Does that person have a constitutional right not to be executed?

ALITO: The person would first have to avail himself or herself of the procedures that Congress has specified for challenging convictions after they've become final.

If this individual has been convicted and has gone through the whole process of direct appeal, either in the state system or in the federal system, then there are procedures. States have procedures for collateral attacks and there are procedures under federal statutes for collateral attacks on federal conventions and on state convictions. And the person would have to go through the procedures that are set out in the statute.

And the system is designed to prevent a person from being executed if the person is innocent. And actual innocence figures very importantly even in these sometimes complex procedures that have to be followed in these collateral attacks.

For example, usually, there's this doctrine of procedural default, which is not something that ordinary people are familiar with, but it means that if a state prisoner is challenging a state conviction, the state prisoner has to take advantage of the procedures that are available under state law.

ALITO: And if the state prisoner doesn't do that...

FEINGOLD: My question assumes that all that's been done and the process went through and there's no legal or constitutional or procedural problems, but evidence suddenly proves that the person convicted was unquestionably innocent.

The question is: Does that person in that posture have a constitutional right not to be executed?

ALITO: Well, then the person would have to, as I said, file a petition. And if it was an initial petition, it would fall into one category. If it was a second or a successive petition, it would fall into another category and the person would have to satisfy the requirements the Congress has set out for filing a second or successive petition.

FEINGOLD: You can't say that the person has a constitutional right not to be executed?

ALITO: Well, I have to know the specific facts of the case and the way it works its way through the legal system. The rules here are complicated. A person has a right. It is one of the most fundamental rights that anybody has. It is a fundamental right and a fundamental objective of our judicial system that nobody is to be convicted without proof beyond a reasonable doubt.

And if there's evidence that the person is not guilty of the offense, then that gets to the very heart of what our whole system of criminal justice is designed to address.

FEINGOLD: I'll stop on that topic.

But, you know, I think there's a real question here simply because somebody is adjudicated guilty but they are, in fact, innocent -- I would take the view that they still have a constitutional right not to be executed.

But I'm glad we could talk about that a bit.

We talk about affirmative action. In her opinion in Grutter v. Bollinger, Justice O'Connor recognized the, quote, "real-world significance and impact of affirmative action programs and policies." And she noted that American businesses need skills obtained through exposure to widely diverse people and cultures. A racially diverse officer corps is essential to the military's ability to fulfill its mission to provide national security. And diversity in colleges and university leads to diversity in civil society, which is, quote, "essential if the dream of one nation indivisible is to be realized," unquote.

Justice O'Connor expressly gave great weight to the views of military leaders who said a highly qualified, racially diverse military is essential.

How much weight would you give to that view?

ALITO: Well, I can speak to the issue of diversity in education from a little bit of my own experience.

A couple of years ago, as an adjunct law professor at Seton Hall Law School, I taught a seminar on civil liberties and terrorism. Because in the wake of the terrorist attacks on 9/11, it became apparent to me that there were going to be a lot of civil liberties issues raised, it seemed to me that these were issues of the utmost importance, so I put together a seminar on the question.

And the first time I conducted the class, we had a class with people of extremely diverse backgrounds relating to this issue. There was a student who had been in the special forces in Bosnia. There was a student who was a Muslim from the Middle East.

ALITO: There were a number of students who had been personally affected, in one way or another, by the terrorist attacks on the World Trade Center. There were students who felt very strongly about civil liberties.

And having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class.

So in that setting I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be.

And the Supreme Court has expressed the view that diversity is a compelling interest, having a diverse student body is a compelling interest. Justice Powell voiced that back in the Bacci case, and it's been reiterated in a number of cases, and, most prominently, most recently in the Grutter case.

FEINGOLD: Yes, in fact, in Gratz and Grutter, seven of the nine justices -- all but Justices Scalia and Thomas -- reaffirmed Justice Powell's determination of the Bacci case that the state has a compelling interest in promoting diversity in the classroom.

Do you think that increasing diversity in the classroom is a compelling state interest?

ALITO: Well, I've spoken to my own personal experience about its importance in education. And Grutter is a precedent that directly addressed this issue, and Gratz, in the context of education. And it's the Supreme Court's recent word on this issue.

FEINGOLD: I hope you'll think it fair that nothing about what you just said would suggest to me that you think it's anything less than a compelling state interest.

ALITO: It's a precedent. And the Supreme Court has dealt with this over a time, and that's the conclusion that they've drawn.

FEINGOLD: Do you believe -- on another subject -- that Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment?

ALITO: I can't think of a reason why Congress would not have that power, but I would have be presented with the arguments.

FEINGOLD: Thank you, Judge.

2001, you wrote an opinion overturning a public school district's anti-harassment policy that protected, among other people, lesbian and gay students. You said the school policy in the case Saxe v. State College Area School District violated the First Amendment.

The case was brought by students who believed that the policy interfered with their ability to speak out against the, quote, "sinful," unquote, nature and harmful effects of homosexuality, as compelled by their religion.

In your Senate questionnaire, you note that you won the Family Research Council Golden Gavel Award in 2001 for your decision striking down that policy. The Family Research Council is a leading conservative group that opposes gay rights.

In order for a policy protecting gay students from harassment to pass constitutional scrutiny, must it have an exception for harassment motivated by religious belief?

ALITO: Let me say what was at issue in the Saxe case, because that is the context in which I dealt with issues like this.

The Saxe case involved a very broad anti-harassment policy that had been adopted by a school district. It not only prohibited the expression of political viewpoints, but it went so far as to say that just about anything that any student would say about another student that would be offensive to that student, including comments on the way the student dressed or the things that they liked to do, would be a violation of the anti-harassment policy.

ALITO: And under the First Amendment, unlike in most other areas of the law, statutes can be challenged on overbreadth grounds. And that was the ground on which the statute was struck down in the Saxe case, that it was overly broad, that it prohibited a great deal of speech that was constitutionally protected.

The Supreme Court decided back in the Tinker case that students don't lose all of their First Amendment rights to freedom of expression when they enter the school grounds.

And Justice Brennan's opinion in that case set out the test that is to be applied there. The schools have greater ability to regulate student's speech than government has to regulate adult speech in general. But the authority of school officials to regulate the political speech by students -- in Tinker it was the wearing of an arm band to protest the war in Vietnam -- is not unlimited and there has to be a threat of disturbance on the school grounds or a violation of the constitutional rights of another student.

And so, any policy that regulated student expression, political expression in a school, would have to satisfy Justice Brennan's Tinker standard.

FEINGOLD: Thank you, Judge.

Does Congress have the authority to enact legislation that would protect gay students of harassment in schools that receive federal funding?

ALITO: That would fall within the South Dakota v. Dole standard, and the question would be whether the condition that's attached to the receipt of the federal funds is germane to the purpose of the funding, and that's a standard that gives Congress very broad authority.

FEINGOLD: So the Congress does have the authority in general; the question would be scope of it?

ALITO: Congress has the authority to attach all sorts of conditions to the receipt of federal money. It has to be clear so that the states understand what they're getting into, that if you take this money, there are conditions that go with it -- but provided that that clear statement requirement is satisfied, and provided that the condition is germane to the purpose of the funding, then Congress can attach conditions and it could do so in this area.

FEINGOLD: Judge, let me switch to an ethics issue that is not Vanguard. As you know, after your testimony concludes today, a number of outside witnesses are coming to testify about your nomination, including seven current and former judges from your court.

As far as I know, this is the first time that sitting federal judges have testified on behalf of the Supreme Court nominee. And I'm a little troubled by it. I hope to have some opportunity to question the judges about this, but I think it may raise something of an ethical issue for you.

If you are confirmed to the Supreme Court, how would you analyze a possible recusal motion if an appeal on a case from one of those sitting judges testifying on your behalf were to come before you? Will you have to recuse yourself from any case where one of these judges was involved in the decision?

ALITO: That's not a question that I've given any thought to before this minute, Senator, so I don't know that I could answer it and I would want to answer any recusal question very carefully.

FEINGOLD: Perhaps you could give me an answer after you've had a chance to think about it?

ALITO: I would certainly be happy to do that.

FEINGOLD: I appreciate that.

Well, Mr. Chairman, I think that is sufficient. Thank you very much.

SPECTER: Thank you very much, Senator Feingold.

We are on course to finish you before lunch time, Judge Alito. We have more potential questions from the Republican side, and we have two more Democratic side.

Senator DeWine, do you have any questions?

DEWINE: Mr. Chairman, I'll reserve my time.

SPECTER: Senator DeWine reserves his time.

SPECTER: Senator Schumer, you're recognized for up to 25 minutes.

SCHUMER: Thank you, Mr. Chairman.

SPECTER: With our conversation that you're going to ask new questions...

SCHUMER: That's what I want ask. But...

LEAHY: It's a new day.

(LAUGHTER)

SCHUMER: But I think some of my old questions, the ones I've asked before, should bother you. They bother me.

But, in any case, I do have a few other issues that I do want to talk to you about. But, first, there's just a general question on presidential power.

Let's just assume that it was found that the president's right to wiretap people, the way we're discussing it now in terms of the recent NSA revelations, was found constitutional.

Would there be a different standard if, say, the president -- does that necessarily allow the president to then go ahead and go into people's homes here in America, American citizens, without a warrant?

Does the one necessarily lead to the other?

ALITO: I would have to understand -- I would have to see the ground for holding the wiretapping or the electronic surveillance constitutional before seeing whether it would apply in the case of other searches and seizures.

SCHUMER: But let's assume it is constitutional.

ALITO: I'd have to know what the arguments were made about it and on what ground was found to be constitutional.

SCHUMER: So, it could follow, but might not? Is that what you are saying?

ALITO: It very well might not. I would have to know the constitutional grounds for the decision relating to the wiretapping and I have no idea what that would be.

It may well not extend to things like physical searches of homes.

SCHUMER: Is there a difference? Is there a constitutional difference between a wiretap and an actual physical search of the home on Fourth Amendment grounds? Is there any that you know in the cases?

ALITO: There are differences. Yes, there are certainly are.

SCHUMER: Thank you.

ALITO: General criminal wiretapping is subject to all the rules that are set out in Title III, which are thought to be based in large part on Fourth Amendment requirements. And the warrant requirement is very strong in the area of electronic surveillance.

When you're talking about other types of searches, the searches can take place in a variety of places for a variety of reasons.

SCHUMER: But if it can be done under the inherent power that the president has for the one, why couldn't it be done for the other? I'm not asking about the statute.

ALITO: There's also a Fourth Amendment issue.

SCHUMER: In both cases.

ALITO: In both cases. And the Fourth Amendment could play out very differently in those two contexts.

SCHUMER: Now I'd like to go back to some of the line of questioning that Senator Durbin explored yesterday when he mentioned the crushing hand of fate: Bruce Springsteen.

Judge Alito, I assume you believe that you will be able to be fair in every case that comes before you on the Supreme Court.

ALITO: I have no reason to think I will not be. I certainly will.

SPECTER: And you don't believe that you prejudged any legal or constitutional issue?

ALITO: I don't believe that I have.

SCHUMER: And you'll take care to apply the rules of law and procedure equally and evenhandedly no matter who the parties are, prosecution or defense?

ALITO: Certainly will, yes, Senator.

SCHUMER: Employer or employee?

ALITO: I will apply the laws evenhandedly to everyone.

SCHUMER: And I take it you believe that you've done just that on the 3rd Circuit while you were there.

ALITO: I believe I have.

SCHUMER: OK.

Now, yesterday, Senator Durbin asked about Pirolli v. World Flavors, and you remember that case. You discussed it with Senator Durbin.

And the case involved the claims of a mentally retarded man who brought suit against his employer for violent and persistent sexual harassment by his coworkers.

SCHUMER: Am I right?

ALITO: Those were the claims, yes.

SCHUMER: And the majority allowed the case to proceed, finding that the court had, quote, "discretion to consider issues not raised in the brief." And they did so to give the plaintiff his day in court. You exercise your discretion to vote against giving him his day in court because his lawyer failed to raise the argument in the brief.

As you told Senator Durbin, "There is a very important principle involved in appellate practice" -- these are your words -- "I think it goes with the idea of judicial self-restraint. And that requires parties raise issues in the trial court, and that if they do not raise the issue in the trial court, then absent some extraordinary circumstances, they should not be able to raise the issue on appeal, and that was the principle there."

Those are your words. Right?

ALITO: I believe they are. Yes.

SCHUMER: OK. Now I'd like to go to two other cases that you had when you are on the 3rd Circuit. The first one is Smith v. Horn, where a similar issue arose. That was a criminal case involving a habeas corpus petition brought by a criminal defendant, right?

ALITO: Yes, it was.

SCHUMER: And it turns out that in that case as well, just like Pirolli, one of the parties had failed to raise a relevant argument in its brief, right?

ALITO: Smith v. Horn was really not comparable to Pirolli, for a very important reason. Smith v. Horn was a habeas case. And so what is involved there is not simply a dispute between private parties -- and of course disputes between private parties are very important and individual rights can dissolve...

SCHUMER: I understand it's a government case. Let me just make -- I'm going to let you answer it. I just want to make the point here so everybody can understand. The majority in Smith v. Horn to say -- this time it was the government had failed to raise the issue in the district court brief. This time you were prepared to excuse that failure. This time you felt it was appropriate to consider the issue on your own.

I am at a loss to understand the difference. I'm going to give you a chance to explain, but I want to read what the majority in Smith v. Horn had to say about your indulgence of the government for failing to bring up an issue, just as the retarded person in that case did.

They said: "Where the state has never raised the issue at all, in any court, raising the issue ourselves puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates."

SCHUMER: So as far as I can see, the legal principle and procedural rule in each case was precisely the same. The only difference being that the first was a sexual harassment plaintiff who left out an argument, and in the second it was the government who did.

In the first case, you said to that retarded individual, "Sorry, you're out of luck." In the second case, you said to the government, "I'll make your argument for you." And that doesn't seem even handed to me.

Can you explain the difference, please?

ALITO: Yes, Senator.

As I was attempting to explain a couple of minutes ago, there is an important principle called the principle of comity that is involved in habeas cases. And it goes to a critical part of our concept of federalism, and it's something that Congress itself has very strongly recognized in the habeas corpus statute.

What I'm talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.

And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don't raise it.

SCHUMER: Now, that applies to the government as well as to the defendant?

ALITO: Absolutely.

The issue of exhaustion must be considered by the federal habeas court, even if the state prosecutor does not raise the issue of exhaustion. And why did Congress say that?

Congress said that because there's something more involved here than a dispute between the state prosecutor and the habeas petitioner; there is respect for the federal system of government involved. There is respect for the state court system involved.

SCHUMER: But the majority didn't agree with you in that situation, did they?

ALITO: The majority -- but what I'm saying, Senator, is that the underlying principle of comity makes this case, makes Smith v. Warren quite different from a dispute between private parties. Now, the Supreme Court has said that it is appropriate in certain circumstances for the court to consider procedural default sua sponte, and that's what I thought we should do there.

And my position on...

SCHUMER: Let me ask you -- I understand your explanation.

SCHUMER: I'm not sure I agree with it. But let me go on to another one. This is Dillinger.

In this case, it was with a corporation. The case is Dillinger v. Caterpillar. And it's also a case where a party didn't raise an issue at trial -- won't have the same explanation as the habeas case, obviously.

They didn't raise the issue at trial or on appeal -- this time the large company didn't: Caterpillar. And the majority held that it waived, and it sided with the plaintiff who was seriously injured in the accident, right?

ALITO: I don't have a recollection of all the facts...

(CROSSTALK)

SCHUMER: OK, well, let me tell you -- maybe this'll refresh your recollection.

The majority wrote that it was not appropriate to exercise its discretion -- again it was the majority -- to excuse the defendant companies waiver when the consequence of the decision would be to deprive a seriously injured plaintiff of a trial in conformity with applicable law. That's the majority.

You dissented, with the result, had you prevailed, that the accident victim's case would have been over.

The majority describe your approach as follows. Quote: "There is an insurmountable procedural difficulty with Judge Alito's position. Caterpillar never advanced this argument at trial, an oversight that Judge Alito excuses on a ground that a district court decision may be affirmed on an alternative ground, though not advanced at trial."

So in the Dillinger case, you also thought it was appropriate to use your discretion to excuse Caterpillar, isn't that right?

ALITO: Well, I'd have to refresh my recollection about exactly what was involved in the case.

SCHUMER: Can you explain the difference between the two for us; why in one case it was OK and why in another case it wasn't?

ALITO: Senator, I'd have to refresh my recollection of Dillinger.

But what you've just mentioned relates to the principle that it is appropriate for an appellate court to affirm a decision of a lower court on an alternative ground when the basis for that is apparent from the record of the case.

So if the facts -- if it's a purely legal issue, for example, and you're talking about whether you're going to affirm or whether you're going to reverse...

SCHUMER: But was that the case in Dillinger?

ALITO: Well, without refreshing my recollection, I wouldn't be able to say.

SCHUMER: Oh, OK.

ALITO: But what you read to me...

SCHUMER: I would posit to you that, again, it was an example of your seeming to have more sympathy for a certain type of plaintiff than another.

The transcript continues in Part II.

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


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