U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
Thursday, January 12, 2006; 1:46 PM
The transcript picks up with the testimony of Sen. Jeff Sessions. Return to Part I by clicking here.
SPECTER: Senator Sessions, do you have any questions?
SESSIONS: Just a few. I would just respond to Senator Schumer and Senator Kennedy, and would note that that's not what the ABA has concluded. They've interviewed 300 of your colleagues, judges and lawyers who practice before you and against you, and they rate you the highest possible rating. They don't see you as an extremist, out of the mainstream or otherwise.
And I also want to thank your family for their patience in going through all of this and listening to those of us on this side as we expostulate on all sorts of things.
And I see your sister back there, in your own right a nationally known attorney.
Rosemary, it's good to see you here.
I understand you were debate partners in high school. It must have been an interesting household to have two prominent lawyers growing up.
So I'll ask you how that was and who was the best debater.
ALITO: Well, I'll take the Fifth Amendment on the second part of the question.
But it structured our arguments. So instead of arguing about things at home, we would argue about the issues that we were debating.
My wife insists that we actually argued a debate in front of her class. We didn't know each other at all at the time and didn't meet actually for many, many years later. But we did have a debate at her high school, which was about 20 miles away, and she insists she remembers seeing us debating in front of her French class.
SESSIONS: Well, it must have been an interesting thing. Apparently, your colleagues in school there were impressed.
SESSIONS: They predicted you would serve on the Supreme Court one day. And I think that's going to turn out to be a good prediction.
I would point out, Judge Alito, that you've been asked a lot about separation of powers, FISA act and those kind of things. This Congress has not clarified its position yet. As a judge, if some of these issues were to come before you involving congressional power or something, you would expect the Congress to have formulated its position first, would you not?
ALITO: That would certainly be very helpful.
These are very momentous issues and they're difficult issues and they have just come to the surface in the last few weeks. I couldn't begin to say how I would decide any of these issues without going through the whole judicial decision-making process. I think it would be the height of irresponsibility for me to try to do that.
SESSIONS: I would agree.
The chairman is going to be having hearings within a few weeks here to discuss many of these issues. And it's something that every senator will be engaged in, whether they desire to or not. And we'll have to think these important issues through. And I don't think they're ripe yet for a decision, that's for sure.
I would also note that, with regard to Justice Jackson's position on the president and his war-making powers and the question of when he is a high position and a lower ebb position, Chief Justice Rehnquist discussed that idea in Dames & Moore v. Reagan and, in fact, pointed out that that doesn't completely answer the question, those answers are not black and white, and that there's a spectrum running from explicit congressional authorization to explicit congressional prohibition.
SESSIONS: So there are many factors that must be considered, would you not agree, as you analyze those matters?
ALITO: Yes. You have to know the specifics of the situation.
SESSIONS: On the question of jurisdiction of the Supreme Court and whether Congress has the power to contain it in some way, it does appear there's language in the Constitution that indicates that, as you said yesterday. It's there.
My question to you is: Do you believe that the three branches of government owe it to our country and to our constituents to stay within our bounds and to avoid a constitutional confrontation, a constitutional crisis?
Isn't it better that if the courts to restrain themselves, that Congress would restrain itself and not go forward to an ultimate confrontation of those issues?
ALITO: It certainly is.
The issue of the ability of Congress to take away the Supreme Court's jurisdiction over a particular subject of cases is not something that I have previously addressed in writings, unlike a lot of previous nominees who had addressed that, and therefore, I think, felt that they were freer to discuss that when they came before the committee.
That's not something I've ever addressed in any writing, nor is it something that I've studied, other than to read some of the authorities who have addressed the question.
I did mention that I had given a speech expressing the idea that I thought that it was not a good policy idea. I can understand the motivation, but I don't think that it's good, as a matter of policy, to proceed in that fashion.
And I don't know what the argument would be, as I sit here, in favor of taking away jurisdiction over an entire class of cases. That would raise some serious constitutional questions.
SESSIONS: I would just say to you: I think we ought not to confront that question if we can avoid it. And that's why I have not joined in legislation, some of which has been filed in this Congress, to take jurisdiction away.
SESSIONS: But I do believe that is some power that's been given to the Congress; hopefully will not have to be used, hopefully that sword will never be drawn because the court will show restraint and remain within the constitutional powers that they have.
With regard to the unitary executive, there are just three branches of government in our Constitution. That's correct, is it not?
ALITO: That's all I see in it.
SESSIONS: Well, does every agency and department have to be within one or the other?
ALITO: I think they do.
That doesn't say that they can't be structured in ways that differ from each other depending on their function. And that doesn't address the issue of the separate issues of appointment or removal or whether -- well, let me just leave it there with appointment and removal.
But I think that the Constitution sets up three branches and everything has to be within one of those branches.
SESSIONS: One of the things that I learned as United States attorney is these agencies think they're independent entities. They think they're almost like nations. When they get together -- you probably had this experience -- they sign memorandums of understanding. Wouldn't you agree they sometimes look awfully like treaties?
ALITO: Yes, they do look like treaties between federal law- enforcement agencies and state law-enforcement agencies.
SESSIONS: But, of course, the federal government is one. They can't take two positions in a lawsuit, that's for certain.
With regard to interstate commerce, there is a limit to that, to the power of the government, I believe. In the Hobbs Act, in the racketeering act that Senator Schumer mentioned, doesn't it say within those acts that the extortion or the pattern of racketeering has to affect interstate commerce and that is an element the prosecutor must prove before a conviction can be obtained?
ALITO: Yes, that's right.
And the federal criminal statutes that I'm familiar with, almost without exception, have jurisdictional elements in them. That's the traditional way of casting them.
ALITO: There are a few areas where that's not feasible, such as drugs, but most of the statutes have jurisdictional elements right in them.
SESSIONS: And that's basically the Lopez holding, was it not? And in your opinion in Rybar, you specifically said all the Congress needed to do was to put in an interstate commerce nexus that would be proved to the jury, which -- I agree with you, having prosecuted hundreds of drug cases -- it's not ever been a problem in those cases to prove.
That would have solved the problem, isn't that correct?
ALITO: That's right. In firearms cases, that's just not a problem.
SESSIONS: Well, I think you've testified extremely well here. You have been most forthcoming. I disagree with the recent comment that you haven't been forthcoming.
I would say, and I think Senator Biden indicated, that we have not had a witness more forthcoming, more willing to discuss the issues than you have.
SPECTER: Make you, Senator Sessions.
I thought we were going to get to that light at the end of the tunnel before 1:00. It looks like we're going to be a little later than that. But we don't want to take a break now, so to the extent we could move ahead rapidly, it would be appreciated.
Senator Durbin, you had originally asked for 10 minutes, but I understand you want more time. How much would you like?
DURBIN: Senator, I will do it as close to 10 minutes as I can. But I might need a few extra; I want to reach the end of that same tunnel.
SPECTER: Let's set the clock at 10 with flexibility to exceed that.
DURBIN: Thank you very much.
Thank you, Judge Alito. Thanks to your family for putting up with this endurance test. And I appreciate your patience throughout.
First, let me address the issue of court stripping that was mentioned by my friend from the state of Alabama. I really hope that Congress will never draw that sword. We heard about it during the Schiavo case.
If we're going to have a truly independent judiciary, the thought that Congress will take away from the courts issues which we disagree with would really jeopardize it. And just editorializing, I hope we don't reach that point.
After you leave today, there will be a panel come before us of your colleagues on the bench from the 3rd Circuit. Was this your idea that they come and testify?
ALITO: No, it was not.
DURBIN: Were you asked if it was a good idea?
ALITO: No, I was not.
I understand it's never happened before, and that's why I asked you that question. I don't know who came up with this notion, but it does raise some interesting questions, which we've shared on a bipartisan basis about that testimony. But since you weren't involved in that decision-making, I'll drop it at that.
DURBIN: Then there will come some public witnesses. And one of those witnesses will raise a contrast between two decisions you made. And I'm going to give you a chance now to respond to that charge or that observation that will be made.
Fourth Amendment cases: one we've talked about a lot, Doe v. Groody; another we've talked about I think tangentially, which involves Leveto. I hope I'm pronouncing that correctly.
ALITO: Leveto; I'm not sure what the pronunciation is there.
DURBIN: Do you know which case I'm concerned with?
ALITO: Yes, I do.
DURBIN: In the Leveto case, a veterinarian and his wife, subject to Internal Revenue Service agents coming at 6:30 in the morning, detaining him, patting him down in the Internal Revenue Service investigation, holding him for six hours in his office.
Then they went to his home, found his wife in her nightgown, patted her down, held her incommunicado for a period of time.
And they brought a civil suit and said, "The government went too far. They didn't have the authority to do those things, to pat us down and search."
And your conclusion, writing the majority opinion, was, "Yes, they did go too far." There was a question about immunity, which I won't touch on, but at least from the Fourth Amendment point of view, you said that the government went too far.
Now, of course, the notorious case that's come up time and again of Doe v. Groody. In that case, of course, it's about a year earlier. There's a search of the premises and a John Doe search warrant looking for someone who might have been involved in drug dealing.
An affidavit attached to the warrant says that it could also involve persons on the premises who may be hiding drugs, but the affidavit is not part of the search warrant; it's maybe incorporated in general terms.
The majority of the court says that it was not incorporated; Judge Chertoff writing for the majority. Particularly egregious is the fact that a mother and her 10-year-old daughter were strip- searched pursuant to that search warrant.
In that case, you concluded that that was warranted, that was acceptable search.
The witness who comes before us is going to say, "Judge, how can you do this? You have a veterinarian here and his wife, IRS search. In their case, you said, 'They went too far when they patted them down and searched them.' The next case, involving a 10-year-old girl in a strip-search, you say, 'They didn't go too far.' How would you compare the two and draw the distinction between them?"
ALITO: Well, the Leveto case involved the issue of how long they could detain people who were present on the premises while they executed a search of the premises. And they detained these people for a very long time. I don't remember...
DURBIN: Six hours or more.
ALITO: It maybe even have been longer. It was a very long period of time.
There was no warrant for their arrest. There was no claim that there was a justification to seize them, other than the fact that they were present on the premises at the time when the search was being executed.
The Doe v. Groody case involved the question of the interpretation of a warrant.
ALITO: And the standard that is to be applied there -- the Supreme Court has told us -- is a practical, common-sense instruction. A warrant is not to be interpreted like a sophisticated commercial instrument that's drafted by parties.
The facts were -- you mentioned many of them -- that the affidavit prepared by the police officer said, "We have probable cause to search anybody who's found on the premises because we have probable cause to believe that this drug dealer will hide drugs on the people on the premises."
And they presented that to the magistrate and the magistrate issued the warrant, attached the affidavit to the warrant, and said, "The warrant is incorporated for" -- and I guess I left out the important fact that the officers -- they said, "We have probable cause to search anybody on the premises and that's what we want. We want authorization to search anybody on the premises."
And the magistrate granted the warrant and attached the affidavit to the warrant and said, "The affidavit is incorporated for the purpose of probable cause," which meant that the magistrate found that there was probable cause to search anybody on the premises.
But in the portion of the warrant where it said "person to be searched," it only mentioned...
DURBIN: John Doe?
ALITO: ... the John Doe. Now, if this were a bond, I think you would conclude that the only person you can search is John Doe. But it's a warrant.
And my view was that, viewing this from a practical standpoint, when the magistrate said, "Yes, you're right, there's probable cause to search anybody on the premises," those are the people he's saying can be searched.
But even if one didn't agree with that, you would go on to the qualified immunity question and say, "Could a reasonable police officer who says, 'I've got probable cause to search anybody who's on the premises and that's what I want,' and you go to the magistrate and the magistrate says, 'I agree with you on probable cause and here's your warrant,' could they reasonably think that the magistrate is saying, 'Yes, search anybody on the premises?'"
DURBIN: So did it go into your thinking this whole question of the dignity of the individual; that we are, in fact, dealing with a mother and a 10-year-old daughter who were subjected to the most intrusive search? Was that part of your thinking in terms of coming down in the minority position and saying it was all right to go ahead with the search? Did you consider that calculation?
ALITO: I was concerned about the fact they a minor had been searched, and I mentioned that in my opinion. And that's something that's very unfortunate.
But the issue in the case was not whether there was some sort of rule that minors cannot be searched. That's not part of Fourth Amendment law as I understand it. And there would be a very bad consequence if that were the rule, because where would drug dealers hide their drugs? Minors would then become -- they would become the repository of the drugs and firearms.
DURBIN: Or the issuing authority may be more specific in the warrant, which, as I understand it, is what the Fourth Amendment's all about.
ALITO: Well, the warrant here certainly could have been drafted better.
DURBIN: I think that's what the majority said.
ALITO: It is, but we have to take into account that these are police officers operating under time pressure. And the Supreme Court has told us that we are not to read these warrants like they're complicated commercial documents. We're trying to get at the practicalities of the situation.
DURBIN: I only have a few minutes, and I will try my best to end it, but I don't think I can do it in two.
In our circuit in Chicago, Judge Richard Posner is a very prolific writer about many things. He recently made an observation which I think really is a challenge to all us on the Senate Judiciary Committee.
We currently have a situation involving immigration cases, particularly those involving asylum and deportation, that we have to look at very seriously. There was an effort to clear the backlog when Attorney General Ashcroft was in charge and some procedures were changed to streamline the process, and a lot of these cases were just churned out very quickly with very little evidence as to why decisions were being made.
DURBIN: Judge Posner made that point recently, publicly stating, if I might quote him, "The adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice," he said.
Now, you've been involved in some of these cases: about eight of them as we calculate here. There's been a dramatic increase in the number of these cases coming to the federal appeals courts.
In one particular case here, the Saidou Dia case, which involved the deportation of a man back to Guinea, was a case where he refused to serve in the military. His wife was then confronted in his home country at his home. When they couldn't find him, they beat her, raped her and burned down his home. And this was a man who said, "I don't want to go back because I think it could be a dangerous circumstance for me."
In this case, you dissented and said, "Return him to Guinea," that you didn't feel that there was a strong enough case to grant him asylum in the United States and to stay.
And the reason I raise it is we looked at your record in these cases where there was a split decision. And we discovered that you ruled for the government in eight out of nine cases where there was a split decision on these questions. And in seven of those eight cases that you ruled in this, yours was the minority position.
So my question to you is: Do you appreciate the observation made by Judge Posner about the terrible state of affairs when it comes to the immigration judges and the decisions they're sending for you to review?
And why did you, more or less consistently, in those contested cases, consistently rule on the government side?
ALITO: Well, Senator, I think I have ruled in favor of asylum- seekers in a number of cases.
DURBIN: Those are usually no dissents in those cases.
ALITO: Well, I know that I've ruled in favor of asylum-seekers in quite a number of cases. I don't have the list on the tip of my tongue.
In the Dia case that you mentioned, the facts that you recited were not the facts that were found by the immigration judge. Those were the facts that the asylum-seeker alleged. And the whole issue in the case was whether there was sufficient evidence to support the contrary finding of the immigration judge.
I agree with Judge Posner that the way these cases are handled leaves an enormous amount to be desired. I have been troubled by this. My court has been troubled by this.
But my situation as a court of appeals judge before whom these cases come is created by the legal framework that Congress has created. And Congress has given us a very limited role in reviewing factual findings by immigration judges.
ALITO: What Congress has said is that we have to accept factual findings by the immigration judge unless no reasonable fact finder could come to a contrary conclusion. And that's a tough standard. And I have tried to adhere faithfully to that standard in all the cases that come before, even if I felt that I might have reached a different conclusion on the record.
DURBIN: Judge, wouldn't you concede there are basically two standards that are being debated here? One is you just referred to, no reasonable adjudicator would have come to a different conclusion. The other talks about substantial evidence. And you have followed that second standard, the substantial evidence case, in Lu v. Ashcroft and Zhang v. Gonzales. So you've leaned toward it.
My point I want to get to, and this will be the last thing I ask you, is if we know the system's broken, if we know that it doesn't give basic fairness and justice, do you not feel at your level that you have to be more sensitive to the fact that there are people's lives at stake here and that you have to take care when they're asking for asylum and protection in the United States not to let this broken system work to their detriment?
ALITO: We do have to keep in mind just what's at stake, and I do that. I know that a lot is at stake in these cases. And I read the record to see if there is support for the arguments that are made by these petitioners.
But I have no way of supplementing the record. And there are serious problems. One of the most serious problems, I think, is that the witnesses, the asylum seekers generally testify in another language. Sometimes it's a language that is not well represented in the population in the United States, so it may be difficult to get a translator. And the quality of the transcripts is often very poor, which makes it very difficult to understand what was going on before the immigration judge.
Now, there have been cases where we've said the transcript here is so bad that we can't make a decision on this, and we will send it back.
There's the additional problem that the immigration judges are forced to forced to make credibility determinations based on viewing someone who comes from a different culture, where mannerisms, gestures, facial expressions may mean something different than they do in our culture.
ALITO: And I'm aware of that. But these are bigger problems. These are problems for Congress to address. They're not problems that I can address in the context of deciding these particular cases.
DURBIN: Thank you. I agree. And I thank you very much.
And I finished under 15 minutes, Mr. Chairman.
SPECTER: Thank you very much, Senator Durbin. That's appreciated.
No comments. Wonderful.
CORNYN: I yield back my time.
SPECTER: Doubly wonderful. We're going to be going into executive session when we finish, which will be just in a few moments and we've attempted to notify all senators -- those not here -- through staff. And the purpose is to discuss in private any questions anybody may have in mind as to Judge Alito.
It doesn't suggest anything of substance, but we've adopted this practice since Justice Breyer's proceeding and do it as a matter of routine so that if there is something, by going into executive session, we do not signal that there is something. And going into executive session does not mean that there is something or that there is nothing, but it is routine.
As I explained it, I'm not quite sure why we do it, but we do it.
And it doesn't take long if you do it before lunch.
Some suggest we do it after lunch, and let me tell you, it'd be a long session. But we're going to do it before lunch and we're going to do it in the committee hearing room which has been swept -- another unnecessary item because there's nothing to say in there. But that's our procedure.
Now I yield to my distinguished ranking member, Senator Leahy.
LEAHY: Thank you.
And just briefly, Mr. Chairman, you have been so courteous on this, I hate to even take this time by saying this. I want to make sure Judge Alito is here.
When we started this, I actually started the same subject I started with then Judge John Roberts, now chief justice. It's on the question of presidential power and whether he appreciates the role of the Supreme Court as a check and balance.
LEAHY: As you know, I voted for him. And that is a leap of faith because nobody makes commitments exactly how they're going to vote in one case or another.
In this case, it's been pointed out you're going to replace Justice Sandra Day O'Connor; actually, additionally, Chief Justice Roberts was nominated for that.
Then Harriet Miers was nominated. The president was forced, by concerns within his own party, to withdraw her.
He then nominated you very briefly after you had been -- well, you had been interviewed once at the beginning of his term, but then you were interviewed again by Vice President Cheney and Karl Rove, Scooter Libby and I think a few others.
And that's why I worry. I just want to make sure, in my own mind, that you would stand as a check and balance for this president or any president.
I know you're concerned. You expressed in the year 2000 -- you criticized independent counsel law. So many times in the questions I've raised it's because I was afraid you would not act as a check and balance.
We have a government that is getting more and more powerful and, in the electronic age, especially powerful. We see illegal spying on Americans by Americans.
LEAHY: All of us agree the president is not above the law, any more than you are or I am. But it takes more than that, especially if we're giving the president the power unilaterally to redefine the law, an issue that's going to eventually come before you.
Those are my concerns. I wanted you to know that what my concerns are. They go beyond -- anything what the other issues raised by senators, Senator Specter or other senators; legitimate issues that those are. But those are mine, and I wanted to say that to you personally.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Senator Leahy.
We're about to excuse you from any further participation in these proceedings, Judge Alito.
I've been handed statistics which show that you've been questioned for about 18 hours, the number of questions approximating some 700. And some differences of opinion as to the comprehensiveness of your responses, but the senators are entitled to their own views.
And you'll be hearing more when we conclude the hearings and later go into executive session for the committee to vote. And further on floor debate.
SPECTER: But you've certainly demonstrated remarkable patience -- I think everybody would agree with that -- and remarkable stamina, and a very loyal family, led by your wife.
And we thank you for your public service. And you may be assured that the committee, on both sides, and all of the balance of our 100 senators will give very, very careful consideration to the president's nomination of you for the Supreme Court.
We will recess now, and we will resume at -- it's uncertain how long our session will be, so we'll resume at 2:30. And we will begin with a report from the American Bar Association, and then we'll move to witnesses from the Court of Appeals for the 3rd Circuit.
LEAHY: But now we're going to the closed session.
SPECTER: But now we're going to the committee hearing room, Dirksen 226, for an executive session.
Testimony from Outside Witnesses
U.S. REPRESENTATIVE CHARLES GONZALES (D-TX)
U.S. REPRESENTATIVE DEBBIE WASSERMAN SCHULTZ (D-FL)
AMERICAN BAR ASSOCIATION (ABA) STANDING COMMITTEE
ON THE FEDERAL JUDICIARY
ABA D.C. CIRCUIT REPRESENTATIVE
ABA FEDERAL CIRCUIT REPRESENTATIVE
U.S. COURT OF APPEALS
CHIEF JUDGE OF THE U.S. COURT OF APPEALS
FOR THE 3RD CIRCUIT
U.S. COURT OF APPEALS
U.S. COURT OF APPEALS
U.S. COURT OF APPEALS
RETIRED U.S. COURT OF APPEALS JUDGE
RETIRED U.S. COURT OF APPEALS JUDGE
FORMER U.S. SOLICITOR GENERAL,
PROFESSOR OF LAW,
HARVARD LAW SCHOOL
PROFESSOR OF LAW,
YALE LAW SCHOOL,
FORMER CLERK TO JUDGE ALITO,
PROFESSOR OF LAW,
HOFSTRA UNIVERSITY SCHOOL OF LAW
PROFESSOR OF LAW,
PROFESSOR OF POLITICAL SCIENCE,
DUKE UNIVERSITY LAW SCHOOL
PROFESSOR OF CONSTITUTIONAL LAW,
UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
PROFESSOR OF CONSTITUTIONAL LAW,
NEW YORK UNIVERSITY SCHOOL OF LAW
ASSISTANT PROFESSOR OF LAW,
UNIVERSITY OF CALIFORNIA, BERKELEY,
CROWELL & MORING LLP LITIGATION GROUP
PROFESSOR OF CONSTITUTIONAL LAW,
HARVARD LAW SCHOOL
NATIONAL BAR ASSOCIATION
FORMER CIVIL RIGHTS ATTORNEY
GRAY, LANGFORD, SAPP, MCGOWAN, GRAY & NATHANSON,
FORMER PRESIDENT OF THE NATIONAL ABORTION AND
REPRODUCTIVE RIGHTS ACTION LEAGUE
ASSOCIATE CLINICAL PROFESSOR OF LAW,
YALE LAW SCHOOL
ASSISTANT PROFESSOR OF LAW,
AMERICAN UNIVERSITY'S WASHINGTON COLLEGE OF LAW
FORMER PROFESSOR OF LAW,
NORTHEASTERN UNIVERSITY SCHOOL OF LAW
U.S. COMMISSION ON CIVIL RIGHTS
NATIONAL ASSOCIATION OF WOMEN LAWYERS
SIDLEY AUSTIN LLP
FORMER ALITO CLERK,
FRIEDMAN,KAPLAN, SEILER AND ADELMAN LLP
FORMER ALITO CLERK,
KIRKLAND AND ELLIS LLP
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND
SPECTER: The Judiciary Committee will now proceed with the confirmation hearing on Judge Samuel Alito for the Supreme Court of the United States.
After our morning session, the committee met in executive session and reviewed confidential data on the background of Judge Alito. And it was all found to be in order.
We're now proceeding with the witnesses, the tradition of the outside witnesses, the independent witnesses. The tradition is to hear first from the American Bar Association and their evaluation of the judicial nominee.
We have structured this portion of our hearing differently from what had been done prior to last year, and that is where the majority took most of the outside witnesses. The tradition has been to have 30 witnesses and the majority party had taken 18 and the minority party 12. And it seemed that it would be more appropriate to have an even split, 15 and 15, and that is the practice we are following. And, of course, the ABA representatives are not witnesses called by either Democrats or Republicans.
And we have really done our best to proceed in a nonpolitical way in the selection of a Supreme Court justice. There can be different evaluations as to how successful we are in that, but that has been our effort.
We have limited testimony to five minutes for outside witnesses. The next witness already nods in agreement. He was here not too long ago for Chief Justice Roberts.
And we have established the five-minute rule because we have 31 witnesses.
SPECTER: And the Senate is not in session and all the members of the committee have other commitments. And it is projected that we will finish today, but we'll have to keep on schedule.
We turn now to the American Bar Association panel. And we welcome Mr. Steve Tober, Ms. Marna Tucker and Mr. John Payton.
In accordance with the practice, the testimony will be given by Mr. Tober, who is the chairman of the American Bar Association Standing Committee on the Federal Judiciary. He's an attorney with the law firm bearing his name; experienced in civil litigation, professional negligence and domestic relations; undergraduate and law degree from Syracuse University; of the board of the Law Review; deeply involved in New Hampshire and New England legal communities; former chairman of the committee to redraft New Hampshire's rule on professional conduct.
We know the laborious job involved, Mr. Tober, which you're about to describe in reaching evaluation of a Supreme Court nominee and the importance of your judgments. So we thank you and Mr. Payton and Ms. Tucker for your public service.
Now, Mr. Tober, the floor is yours.
TOBER: Thank you, Your Honor.
Thank you, Mr. Chairman, members of the committee.
My name is Stephen L. Tober of Portsmouth, New Hampshire. It is my privilege to chair the American Bar Association's Standing Committee on Federal Judiciary.
I am, indeed, joined today by Marna Tucker, our D.C. circuit representative, and by John Payton, our federal circuit representative.
For well over 50 years, the ABA Standing Committee has provided a unique and comprehensive examination of the professional qualifications of candidates for the federal bench. It is composed of 15 distinguished lawyers who represent every judicial circuit in the United States and who annually volunteer hundreds of hours of public service.
TOBER: Our committee conducts a thorough, nonpartisan, non- ideological peer review using well-established standards that measure a nominee's integrity, professional competence and judicial temperament.
With respect to a nomination to the United States Supreme Court, the standing committee's investigation is based upon the premise that such a nominee must possess exceptional professional qualifications. The significance, range and complexity of issues that will be confronted on that court demands no less.
As such, our investigation of a Supreme Court nominee is more extensive and is procedurally different from others in two principal ways.
First, all circuit members on the standing committee reach out to a wide range of individuals within their respective circuits who are most likely to have information regarding the nominee's professional qualifications.
And second, reading groups of scholars and distinguished practitioners have formed to review the nominee's legal writings and advise the standing committee.
The reading groups assist in evaluating the nominee's analytical skills, knowledge of the law, application of the facts to the law, and the ability to communicate effectively.
In the case of Judge Alito, circuit members combined to contact well over 2,000 individuals throughout this nation. Those contacts cut across virtually every demographic consideration and it included judges, lawyers and members of the general community.
Thereafter, circuit members interviewed more than 300 people who knew, had worked with, or had substantial knowledge of the nominee.
All interviews regarding the nominee were fully confidential to assure the most candid of assessments.
Judge Alito has created a substantial written record over his years of public service. Our three reading groups worked collaboratively to read and evaluate nearly 350 of his published opinions, several dozen of his unpublished opinions, a number of his Supreme Court oral argument transcripts and corresponding briefs, and other articles and legal memos.
TOBER: The academic reading groups were composed of distinguished faculty from the Syracuse University College of Law and from the Georgetown University Law Center.
The practitioners group was composed of nationally recognized lawyers intimately familiar with demands of appellate practice at the highest level.
Finally, as we do in any standing committee investigation, a personal interview was conducted with this nominee. Judge Alito met with the three of us on December 12th and he provided us a full opportunity to review matters with him in detail.
After the comprehensive investigation was completed, the findings were assembled into a detailed confidential report. Each member of the standing committee reviewed that final report thoroughly and individually evaluated that nominee using three rating categories: well-qualified, qualified and not qualified.
Needless to say, to merit a evaluation of well-qualified, the nominee must possess professional qualifications and achievements of the highest standing.
During our investigation, questions were raised concerning the nominee's recusal practice and also concerning some aspects of his judicial temperament. We have carefully reviewed and resolved those questions to our satisfaction as we have detailed in our accompanying correspondence to your committee which, Mr. Chairman, we ask to be made part of this record.
SPECTER: Without objection, they will be made part of the record.
TOBER: Thank you, sir.
We are ultimately persuaded that Judge Alito has, throughout his 15 years on the federal bench, established a record of both proper judicial conduct and even-handed application in seeking to do what is fundamentally fair.
As such, on the basis of its comprehensive investigation and with one recusal, the standing committee unanimously concluded that Judge Samuel A. Alito Jr. is well qualified to serve as associate justice on the United States Supreme Court.
TOBER: His integrity, his professional competence and his judicial temperament are, indeed, found to be of the highest standard.
Mr. Chairman, let me say once again what we noted here back in September. The goal of the ABA Standing Committee has always been and remains in concert with the goal of your committee: to assure a qualified and independent judiciary for the American people.
And with that, thank you for the opportunity to present these remarks.
SPECTER: Thank you very much, Mr. Tober for your work and for ending right on the button, five minutes to a T.
TOBER: I worked on that, sir.
SPECTER: That quality of yours would recommend you for a Supreme Court argument where Chief Justice Rehnquist stopped the speaker in mid-sentence.
A word from Judge Becker, who will testify later. He was looking for an opportunity -- he stopped me in mid-sentence one day. He was looking for an opportunity to stop the speaker in the middle of the word "if." I didn't give him that chance.
Before proceeding to questions, I want to yield to Senator Leahy to see if he has any opening comments that he wants to make.
LEAHY: I don't, Mr. Chairman. I don't. Thank you, though.
SPECTER: We have five-minute rounds for each of the members of the committee.
Mr. Tober, picking up on your testimony that you found Judge Alito to have even-handed application of the law, how would you amplify that with respect to what kind of materials you looked at, what your evaluation was and what led you to that conclusion?
TOBER: Be happy to, Mr. Chairman.
The conclusion was reached in large measure in interviews with, as I said, well over 300 individuals around this country, over 130 of whom were federal judges, many were state judges, many were colleagues, co-counsel, opposing counsel, who almost uniformly talked in terms of his evenhandedness, of his open-mindedness, of his willingness to be fair. He's called "a judge's judge" more than once in those interviews.
When we interviewed him, we had questions that would have been on that issue. And we discussed that issue with him, to get his own personal perspective on it. We were satisfied with what we heard at that time.
And perhaps it's best reflected in his writings, which, again, I indicated the body of that work was read by our three reading groups collaboratively. And the conclusion that was reached, if you will, the overarching conclusion that was reached, is that this is a judge who brings pragmatic skills to his decision-making.
We discussed that with him in that interview that we had on December 12th. He tries to do what he thinks is right with respect to the application of the law that's before him. He took us through how he analyzes that approach, up to the point that when he is just about ready to release his decision, he looks back once again at the law to make sure he hasn't misapprehended something in the first instance; and secondly, to make sure that the outcome is fair.
That, to me, suggests...
SPECTER: So he came back to you twice?
TOBER: I'm sorry?
SPECTER: Was your testimony that he came back to you? What did you mean he came back and took another look?
TOBER: He would look at his draft opinion, Mr. Chairman, before it would be issued. And he would look back at the law that he was applying in that opinion and the outcome that was occurring in that opinion, just to justify in his mind one more time that the outcome would be fair.
SPECTER: Did your group study all of his opinions?
TOBER: The reading groups read 350 of his published opinions, scores of his unpublished opinions, and other materials, yes.
SPECTER: And did they make any analysis?
An issue has been raised as to whether Judge Alito unduly favored the powerful or the government. Did your ABA analysis reach that issue?
TOBER: That issue is one that we looked at. And we discuss it in our letter of evaluation. And I gave some examples of the some of the disparate results that we were told about.
TOBER: One of the reading groups reported to us that they could not reach a full conclusion on whether or not there was some attempt to favor one outcome for a group of litigants over another. And while there were a couple of members in a couple other reading groups that may have said the same thing in so many words, there were a significant number of other individuals in the reading groups who said they couldn't find any such evidence of that. It was inconclusive with respect to the reading groups.
What was of interest in the reading group reports to us was a comment that was echoed by others, which is that in looking for a sense of partiality in the opinions, the conclusion that was left very often was one of pragmatism.
SPECTER: Let me interrupt you, because my time is almost up, to ask you to clarify. What was inconclusive in your studies?
TOBER: It was inconclusive whether or not there were certain categories of parties who might have come out at the wrong end of Judge Alito's opinions.
SPECTER: Did some of those readers find that he was impartial and some find the contrary?
TOBER: My understanding is it was inconclusive. We did not receive any clarion call at one point that he was representing or suggesting to have a bias against any particular group of litigants before him.
SPECTER: Considerable amount of attention has been paid in these hearings to the recusal issue of Vanguard. Would you comment on what your committee found there?
TOBER: I'm going to defer to Mr. Payton who took the lead on the Vanguard-related issues, if that is OK with the chairman.
SPECTER: Mr. Payton?
PAYTON: We certainly looked into all of the recusal issues. We asked Judge Alito in some detail about how the Vanguard and the other recusal issues came about.
But let me put this in some context which I think will be helpful. In the materials that Judge Alito submitted to this committee, he attached a list of all of the cases from which he had been recused over his 15-year tenure. And that is 40 pages long with about 30 to 35 cases per page. It's well over 1,000 cases from which he was recused.
Among those cases that he was recused from were cases involving Vanguard in 1992, cases involving his sister's law firm throughout the tenure, cases involving U.S. attorney's office throughout the tenure, cases involving the other entities that he had identified in his representation to this committee back in 1990.
A few cases, in fact, slipped through. And that has been the subject of our inquiries and some of the testimony before this committee.
PAYTON: We asked him how that came about. He explained how he thought it came about. But I think it's fair to say he was not certain how they slipped through -- whether it was through the screen, whether it was because they were pro se cases.
In the end, he did acknowledge that it was his responsibility that a mistake and error had been made. Those cases should have been caught and he should have not heard those cases.
We listened quite carefully to all of that. And in the context in which we understood how this came about, we accepted his explanation that he simply had made a mistake. These cases should not have slipped through the screen just like the other thousand or so cases that were captured by the screen and the process, but they did; they shouldn't have. And we think that did not reflect in any significant degree on his integrity.
Let me tell you something else we did that goes to both of your questions, Mr. Chairman. We also interviewed an incredibly broad array of judges -- virtually all of the members of the 3rd Circuit, virtually all of the district judges that were in New Jersey and were in Philadelphia. We interviewed a number of the other judges in the 3rd Circuit who were on the district court who had contact with Judge Alito.
PAYTON: And what we learned from them almost unanimously was that he is held in incredibly high regard with respect to the issues that this committee, the ABA's committee, looks at: his integrity, his judicial competence and his judicial temperament.
And on the issue of the recusals, everyone thought that he has the highest integrity and that these few cases that slipped through do not diminish his integrity.
SPECTER: Thank you, Mr. Payton.
The red light went on during the course of your testimony, so I will terminate and yield to my colleague Senator Leahy.
LEAHY: Just to follow up on that, on Vanguard, the only reason I even mention this, when the initial explanations was from Judge Alito and the White House after his nomination was a computer glitch had precipitated Vanguard case.
But then he answered some questions from Senator Feingold. He said in the Monga case it wasn't a computer glitch -- his failure to submit Vanguard to the clerk of the court. And he said when it came before him he was not focused.
Since your report, checking the dates here, we've learned that Judge Alito did not have Vanguard on his recusal list as far back as 1993, not withstanding the fact that in 1990 he'd given a sworn statement to the committee that he would recuse.
LEAHY: Some of that information came after your report. Would it change anything in the conclusion?
PAYTON: Like I said, from the interview with him, I'm not sure we figured out what caused these cases to slip through. I'm not sure Judge Alito knew the precise answer to that. But he did acknowledge that it was a mistake.
On what was on his standing recusal list, I don't know what was on his standing recusal list. But I just note, in the materials that were submitted to this committee, there is a 1992 entry of an entity that has the name Vanguard in it -- and it's Vanguard -- that says "recusal because on standing recusal list."
I don't know what happened in 1993. I don't know if things went on and went off. Something went wrong here. And these cases came before him. And they shouldn't have. But they are a very small number in a huge universe of cases from which he was recused.
TOBER: Senator, may I add to that very briefly?
TOBER: We did not find, in the vast number of our interviews and the review with the nominee, and any other extrinsic information we could look at, any pattern of intentional effort to try and have Judge Alito impose himself in cases in which he did not belong.
We are persuaded that some errors were made, some mistakes were made. And they total up to a small handful. In the course of the numbers that he's been sitting on, and I believe Senator Hatch suggested yesterday some 4,000 or 5,000 cases have been adjudicated involving Judge Alito.
We took that into context, particularly in light of the comments from individuals who know him and work with him with respect to the ethics he brings to the position.
LEAHY: You understand, the reason it became an issue here is because it was based on a sworn statement that he'd recuse?
TOBER: Yes, sir.
LEAHY: You also looked into his open-mindedness, his commitment to equal justice. I'm just asking, in doing that -- I've never served on one of these committees that you're on -- there's been a number of studies of the judge's record -- the Knight Ridder, The Washington Post, Cass Sunstein and others. And they have concluded that he had a much more likelihood of siding against discrimination plaintiffs than other circuit judges.
Knight Ridder reviewed 311 of his published opinions, found that he seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business. And his record stood out significantly from others in the circuit.
Did this question come in on the issue of whether he was compassionate or...
TOBER: The answer is yes. We looked at that. Our reading groups looked at it for us. We discussed it with the nominee in our interview on December 12th.
We are not immune from the media stories that have been available. I suggest everybody on my committee has been watching the last three days very carefully.
We are where we started with that issue. And that is over 300 people we spoke with who know this person as a judge, as an individual, are convinced that he has an open mind; that he does not bring any bias to this decision-making.
LEAHY: And lastly, on the issue of CAP, nobody is suggesting a bias on his part. But what bothers me, while you're doing a job application in 1985, we know Judge Alito's a very careful person, and I mean that as a compliment -- carefully put together job application. He proudly proclaims his membership in CAP, a group that was very much dedicated to keeping minorities and women out of Princeton: one that would probably look unkindly to either Judge Alito's Italian ancestors or my Italian ancestors.
LEAHY: Was this just pandering to the Meese and the Reagan administration, or is this just a total screw-up?
TOBER: May I defer to Ms. Tucker with that?
TUCKER: We looked at that question, Senator. We were very concerned about that listing, knowing that membership in that organization would put him, perhaps, on an extreme that we would be uncomfortable with.
His answers to our committee were very similar, if not identical, to the answers to your committee. He did not recall when he became a member or even what he did. He didn't recall ever attending any meetings or reading any publications.
He did recall that he joined the organization because of the university's attempt to remove ROTC.
LEAHY: But that's not really my question. Was there any question of why was he so proud of this that he would put it in 1985 when everybody -- everybody knew what kind of an organization it was, where Senator Bill Frist had condemned it and Senator Bill Bradley -- quite the extreme political poles I suppose you might go.
LEAHY: Did you ask why he proudly put that on his...
TUCKER: We asked him why he put that on there. We didn't ask him why he proudly put that on there.
But he stated that he recalled he was a member.
We specifically asked him if this was to -- since it was a job application, that was he pandering. And he said it would be improper to not tell the truth on an application, that he was a member of that organization.
But there were only two organizations that he listed, as I recall, on that application. One was the Federalist Society. The other was the Concerned Alumni for Princeton. He did not have a long list of activities at that time.
But I should say, in fairness, we were very concerned about the membership of that and what happened. And all of the people we spoke to on the courts, women and minorities, people who he had worked with, people who had sat on panels with him side by side in issuing judicial opinions, almost universally said that they saw no bigotry, no prejudice.
TUCKER: They thought he was a fair man. And they felt that if he did put that -- they were shocked when they heard that that was listed on his application. And they said, "That is not the Sam Alito we know." And we heard that time and time again.
LEAHY: Thank you very much.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Mr. Tober.
Thank you, Ms. Tucker.
Thank you, Mr. Payton.
HATCH: I'll reserve my time, thank you.
SPECTER: Thank you.
KENNEDY: Thank you very much.
Did you know, Mr. Tober, that the Vanguard Ventron (ph), which is the case of 1992, actually involved the carpentiers (ph) -- that names the carpentiers (ph) which were on the Alito list for recusal.
TOBER: We weren't...
KENNEDY: And I think for the most -- Mr. Payton, maybe this should be directed to you -- in that most of the people that have looked through there in detail feel that reason that that was actually recused is because the carpentiers (ph) -- at least I think it's spelled carpentiers (ph). Yes. C-A-R-P-E-N -- carpentier (ph). And that was the reason it was under the name of the Vanguard.
You're familiar with that?
PAYTON: Yes. I simply thought that it was unclear whether or not what would have caused that to be kicked off because of the standing recusal list was any hit with Vanguard or something else.
It's unclear. You cannot tell from what is there.
KENNEDY: Did the committee know when it inquired of the nominee that the Judge Alito had made a promise to the committee under oath that he was going to recuse himself from Vanguard?
PAYTON: And we asked him about that.
KENNEDY: And did he indicate -- what was his response?
PAYTON: His response was that it was a mistake for those cases to have slipped through. That was not just a question about what the code said but also what his representation to this committee encompassed, that it was a mistake.
KENNEDY: And was the mistake, did you understand it, is because he didn't for one reason or another, neglected to put Vanguard on his recusal list?
PAYTON: No, I don't think I could say it that concretely. The mistake was that it got through. Why it got through, I think it was not completely clear to us. I'm not sure it was clear to Judge Alito. It got through.
KENNEDY: Well, it wasn't on his '93, '94, '95, '96 list, and the '93 says no changes were made from '92. And he got on the bench -- so there's just one year, a year and a half...
PAYTON: Don't know...
KENNEDY: I don't have the record on it. And I was just wondering, in your inquiry and review of that case, since that is the principle source, as I understand it, of revenue -- I mean, it's had sizable increases in the revenue from the time he took that oath till the more recent years. So that's one of the factors on it.
And I was just interested when you said it was a mistake -- that you made a determination detection, because we have not been able to find that it was ever put on. And, quite frankly, at least as a member of the committee, we've heard a number of reasons for it. We've heard computer glitch.
KENNEDY: We've heard that it was an interim pledge and a commitment. We have heard that it was a pro se case and therefore we didn't have -- the computers don't exist in the 3rd Circuit the way they do in law firms here in Washington, D.C. (inaudible).
And I'm just trying to find out what was told to you.
I think, to be very honest about it, if it had been said it was a mistake in the very beginning, I don't even think this issue would have taken more than 30 seconds of the committee's time.
But since we've had so many different reasons for it which we've been trying to ascertain exactly what had happened, and particularly since it was a pledge to the committee and it was a sworn statement to the committee that we were wondering what the Bar Association in its...
PAYTON: Senator Kennedy, I don't know the answer to your question.
I don't believe that what you just said about what was on the list in 1993-'94 was known then. I was unaware of that. And I'm not sure Judge Alito knew that.
But in our discussion with him, we actually cut right through that and simply wanted him to tell us if he agreed this was a mistake -- "Did you just miss it?"
"Yes, I just missed it. It was a mistake."
And the why, then, sort of became less significant.
KENNEDY: Well, of course, Mr. Payton, he did. During that same period of time he took a name off the list, so he must have been familiar with it. He took the U.S. attorney name's off the list.
We went through this. I'd be glad to make available to you -- just you've indicated that you'd gone through the hearings on this and I'd welcome the opportunity just to make available to you the same material and to get your response.
PAYTON: Senator, we indicated in our letter of explanation, as we always do, that we continue to monitor these proceedings.
KENNEDY: Thank you.
PAYTON: And we'll be happy to revisit anything the committee wishes us to look at.
KENNEDY: I want to join in thanking you for the service of the Bar Association. This is a very challenging and, in many senses, thankless job. But I think the country's much better off and so is the judiciary. And I thank you for your service.
PAYTON: Thank you.
(UNKNOWN): They're all billable hours, Mr. Chairman.
SPECTER: Thank you, Senator Kennedy.
Senator Hatch has stated an interest in regaining some of his reserved time.
HATCH: Well, just shortly.
We appreciate the efforts that you made. We appreciate what the Bar Association is doing. And we appreciate what you've done in this particular case as well.
Now, you're aware that -- and, frankly, he did state right off the bat, early in his testimony, that he had made a mistake with regard to the Vanguard matter.
On the other hand, are you aware that, not only did he recuse himself once he realized he'd made a mistake, but he asked the succeeding panel to retry the case. Are you aware of that?
HATCH: Was that an appropriate thing to do?
PAYTON: He asked that the chief judge identify a new panel. And I think that was the appropriate thing to do.
HATCH: And that's what an honest, decent judge would do, isn't it?
PAYTON: Sure, of course.
HATCH: You're all aware of 28 USC, the U.S. Code statute on this -- am I correct?
HATCH: I mean, that statute defines a financial interest for the courts that says, 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 the 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.
HATCH: Are you aware of that? Now, did he participate in the management of the fund?
PAYTON: The answer is no.
HATCH: Then, if he didn't participate in the management of the fund, would he have had, under normal circumstances, to recuse himself?
PAYTON: Well, I think the normal circumstances is, you know, amplified by the representation to this committee, which he acknowledged, independent of the obligation that you're talking about, would have caused him to not want these cases to come before him.
HATCH: Right. But he made it clear that once he did realize that there was a mistake, even though he did not, according to this U.S. Code, which is the basis, did not have to recuse himself, he did so because he had said in his statement that he would?
HATCH: And you knew that? And so, I take it you don't find any real fault in the way he handled the Vanguard matter?
PAYTON: That's correct.
HATCH: That's correct?
PAYTON: That is correct.
HATCH: Thank you so much.
SPECTER: Thank you, Senator Hatch.
FEINSTEIN: Thank you very much for your service. Have you heard anything in these hearings that would cause you any concern or reason to change any of your views?
PAYTON: Well, the hearings are still going and I'm still listening.
But to the moment, Senator, I have been looking for any kind of material or discordant statement that would have been inconsistent with anything that we have learned or heard either through our interviews or our meeting with the nominee.
And to the moment, I'm still comfortable that we understood the judicial and legal profile of Judge Alito when we reached our rating.
FEINSTEIN: Thank you.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Senator Feinstein.
KYL: Mr. Chairman, I don't have any questions, but I would like to thank the panel and the Bar Association for its -- I wonder how many hours of work put into verifying the qualifications of the nominees, not just for the Supreme Court but the other nominations, and particularly, Mr. Payton, your explanation of the matters that you testified to here.
Thank you very, very much.
SPECTER: Senator DeWine?
DEWINE: No questions, Mr. Chairman.
SPECTER: Senator Sessions?
SESSIONS: Mr. Tober, you have 15 members of your committee that goes out and they divide up the work and interview now 300 individuals, is that what you...
TOBER: As it turned out, Senator, the chair just gets to do a lot of marshalling. And the 3rd Circuit representative had to recuse herself because she had argued a case before a panel that Judge Alito served on before he'd been nominated. And the decision had yet to come down.
So she, by our standards, removed herself. So I had 13 people out in the field interviewing well over 200 people, contacting over 2,000 people, putting together their own written reports, marshaling the information from every corner and putting in what turned out to be an 11-pound report.
And when I first received it, as I told Ms. Tucker, I didn't know whether to read it or send out birth announcements.
SESSIONS: Well, we're glad you don't have to do background work on senators.
PAYTON: We're pleased it's done for the moment.
SESSIONS: Well, one of the things, you know, some of us say -- we've complained about the ABA ratings. But there's so much value to it, it strikes me, because isn't it true that sometimes when you're interviewing a lawyer that's been before the judge who's lost case, a lawyer who's litigated against him, they'll tell you things they may not come forward and say publicly, and that you can get a good -- you feel like you get a better perspective on a nominee's professional qualifications than you can get from reading the newspaper, perhaps?
TOBER: Thank you for that question. Let me try and answer it.
The answer is yes. We have had the experience since 1948, when we started reporting our ratings to this committee, of being able to get comprehensive, confidential information from people who know the nominee directly in the trenches, whether it be a judge, a lawyer, other people in the community.
And we are able to ask them with respect to integrity, professional competence and judicial temperament with the full and complete understanding that there will be no attribution, there will be no embarrassment, that if it's important we need to know. And people indeed give us that kind of information.
So, yes, it is a remarkable process. And if I have the moment, I'd like to say it's a remarkable group of people that I've had the privilege to work with.
SESSIONS: And, Mr. Payton, you used the word, phrase, that they held him in incredibly high regard. I think you are a premier litigator, you've argued before the Supreme Court. I'm sure you used those words carefully.
PAYTON: I did.
SESSIONS: I thank you for your service. And I think it has provided valuable insight to the committee, because you see these things out there, and it's important for the American people to know, what do the people who really know and work with this judge think about him. And we value your comments.
SPECTER: Thank you, Senator Sessions.
GRAHAM: Thank you, Mr. Chairman.
I'd just like to echo what my colleagues have said about the service you're providing, not only to the committee, but I think the country, because most people in the country are not lawyers. That's probably a good thing.
The idea of who you're getting as a person is important, and the homework you've done gives us a good picture of this particular man.
But his judicial experience compared to other people that you have reviewed, seems to me that being on the court for 15 years, you had a lot to look at.
TOBER: Well, we don't compare one nominee to another, Senator, as I'm sure you can appreciate. But I will take the direct question, and, indeed, I believe we said in our letter of evaluation that he's created an enormous record of public service, and his writings speak to that. And that's, indeed, what we've reviewed.
GRAHAM: Thank you.
And about your rating, we're all very pleased to the outcome here. But democracy is about a process, not an outcome. The rule of law is about a process, not an outcome. There may be occasion where you'll render a rating I won't agree with, and that's just the way it goes.
But I think the process where you're involved really helps us a lot. I think it helps the country. And I appreciate the time you've taken from your families and your business to do it.
Now, what may take normal people 30 seconds to figure out may take the Senate three days. But we're going to ask one simple question about Vanguard. I've listened, and with this much material to have dealt with and as many cases as he's heard, the first question for me about Judge Alito is: Who am I getting here? And is an innocent mistake OK? I hope so, because I make them all the time.
GRAHAM: What would I not want? I would not want someone who's into self dealing. I would not want someone who skirts the ethical rules and plays as close to the line as they could.
Would it be a fair statement that Judge Alito never plays close to the line, he tries to do it the best he can, to take the highest approach to ethics?
PAYTON: I think that from what his colleagues who know him very well would say is that they hold him in the highest regard with respect to his integrity. And I think that encompasses what you just said.
GRAHAM: Thank you very much.
And one last thought, about Vanguard. What is in it for him to intentionally hear the case, knowing that he shouldn't? I have never found anybody that could give me a reason why this judge would make an intentional decision to avoid recusal when he should. Have you found a reason?
PAYTON: I actually am unaware of anyone who has claimed that he intentionally did this. It was a mistake.
GRAHAM: And there's no benefit one could find for him intentionally doing it, based on the nature of the case?
TOBER: I'm not aware of one.
GRAHAM: Thank you all.
TOBER: Senator, if I could just add, I believe it was Professor Rotunda who submitted a report to this committee. And I think there was a line in there that caught my attention. He said, "Reasonable people can make reasonable mistakes." And I think that captures what we thought we found. And when we spoke to Judge Alito about it, we were convinced that it happened.
GRAHAM: Thank you for your services.
SPECTER: Thank you, Senator Graham.
SCHUMER: Thank you, Mr. Chairman. I just have a brief question because we've heard a lot about the ABA rating, which is something that's prized and important.
Your sheet here that describes it says it describes three qualities: integrity, professional competence, judicial temperament. Is that right?
TOBER: That's correct.
SCHUMER: So it would not get into what somebody's judicial philosophy would be. Is that correct?
TOBER: That's also correct.
SCHUMER: And so, if somebody were very far right or very far left, as long as they had integrity, professional competence or judicial temperament, you would give them -- that's what you would rate them on.
TOBER: Senator, we don't do politics.
What we do is integrity, professional competence and judicial temperament. They are objective standards. And that's what we bring to this committee.
SCHUMER: And if one standard was -- however one defined it, if somebody was out of the mainstream, again, your rating would not give us any inclination whether that was part of it?
TOBER: If the suggestion was that they were out of the mainstream politically, that's correct.
If they're out of the mainstream in terms of their judicial temperament, we might have a different thought.
SCHUMER: Thank you.
SPECTER: Thank you very much, Mr. Tober.
Ms. Tucker, Mr. Payton, we very much appreciate your service and your being here today.
TOBER: Thank you.
SPECTER: Let's call the next panel -- Judge Becker, Judge Scirica, Judge Barry, Judge Aldisert.
Judge Garth will be coming to us electronically, but he appears on the screen.
Welcome, Judge Garth and Judge Gibbons and Judge Lewis.
Senator Coburn, do you have questions of the ABA?
SESSIONS: AMA, he'd like to ask about.
SPECTER: I begin by welcoming the judges.
By way of a brief introduction, I think it is worthy of comment how this panel came to be invited.
Judge Becker was in my offices because since August of 2003 he has been performing mediation services on asbestos reform litigation -- more than 40 meetings in a very, very tough legislative approach.
SPECTER: And he was in my office last December, at a time when I was being interviewed by Kathy Kiely of USA Today. And I introduced Judge Becker to Ms. Kiely, who asked him about Judge Alito. And without objection, I'd like to make a part of the record the article which Ms. Kiely wrote for USA Today, dated December 14, 2005, which contains Judge Becker's comments about Judge Alito.
After that, I discussed with Judge Becker the possibility of his being a witness for Judge Alito. And after some discussions Judge Becker checked out the various considerations, said he would be willing to do so, if invited by the committee. And then Judge Becker talked to the other judges who are here today, who also stated a willingness to appear if invited by the committee. And I then sent them formal letters of invitation.
Now to the judges. Judge Becker is a graduate of the University of Pennsylvania, 1954; Yale Law School, 1957; appointed by President Reagan to the district court in 1970; and to the Court of Appeals for the 3rd Circuit in 1981.
He's really been performing services as the 101st senator. And by way of a full disclosure, I've known Judge Becker since the fall of 1950 when he was a freshman at the University of Pennsylvania and I was a senior. And we have been good friends ever since.
Judge Becker, thank you for your service to the United States in so many capacities.
BECKER: Thank you, Mr. Chairman.
SPECTER: We have a procedure for five minutes. I don't intend to bang the gavel on any of you judges -- not because you're judges, but because my gavel is almost broken.
BECKER: Mr. Chairman, Senator Leahy and other members of the committee, Sam Alito became my colleague when he joined our court in 1990. Since that time, we have sat on over 1,000 cases together. And I have therefore come to know him well as a judge and as a human being.
Many do not fully understand the intensity of the intellectual and personal relationship among appellate judges. We always sit together in panels of three. And in the course of deciding and writing up cases, engage in the most rigorous dialogue with each other.
BECKER: The great violinist Isaac Stern, describing an afternoon of chamber music, once opined that after such a session, one knows his fellow quartet members better than a man knows his wife after 30 years of marriage. Now this analogy -- hyperbole aside -- vividly describes the intense relationship among appellate judges.
I therefore believe myself to be a good judge of the four matters that I think are the central focus of this committee as it decides whether to consent to this nomination: Sam Alito's temperament, his integrity, his intellect and his approach to the law.
First, temperament. Sam Alito is a wonderful human being. He's gentle, considerate, unfailingly polite, decent, kind, patient and generous. He's modest and self-effacing. He shuns praise.
When he had completed his 10th year of service on our court, Sam declined my offer extended as chief judge -- I was then the chief judge of the court -- to arrange the usual party to observe 10-year anniversaries. Sam was uncomfortable at the prospect of encomiums to his service.
Sam has never succumbed to the lure of big city lights. He has a sense of place, which, for him, is not nearby New York City, but New Jersey, which to him has always been home.
Finally, there is an aspect of appellate judging that no one gets to see -- no one -- but the judges themselves: How they behave in conference after oral argument, at which point the case is decided, and which, I submit, is the most critically important phase of the appellate judicial process.
In hundreds of conferences, I had never once heard Sam raise his voice, express anger or sarcasm or even try to proselytize. Rather, he expresses his views in measured and temperate tones.
BECKER: Second, integrity: Sam Alito is a soul of honor. I have never seen a chink in the armor of his integrity, which I view as total, an opinion he's not undermined by the furor over the Vanguard issue by which I remain baffled.
My wife holds Vanguard mutual shares, which I report on my financial disclosure form. However, I do not identify Vanguard on my recusal list because I am satisfied that my wife possesses no ownership interest in the Vanguard Management company, which is what controls the recusal determination. She has never received a proxy statement, an opportunity to vote for directors, or any indicia of ownership, other than her (inaudible) share and the fund to the extent of her investment.
I believe that the view of Dean Rotunda, which is in your record, explains why Judge Alito was not required under the law to recuse himself in the suit against Vanguard.
Third, intellect: Judge Alito's intellect is of a very high order. He's brilliant, he's highly analytical and meticulous and careful in his comments and his written work.
He's a wonderful partner in dialogue. He will think of things that his colleagues have missed. He's not doctrinaire, but rather is open to differing views and will often change his mind in light of the views of a colleague.
Contrary to some reports, Sam does not dissent often. According to our court statistics, in the last six years, he has dissented only 16 times -- a little over two cases per year. That's the same number that I have dissented, and fewer than the number of our colleagues.
In my view, Sam Alito has the intellect to sit on the Supreme Court. I know all of its members. I know them reasonably well. And in my view, he would be a strong and independent justice, his own man.
Finally, Sam's intellect is not abstract, but practical. He does not mistake the obscure for the profound.
Fourth, approach to the law: As I address this topic, I'm acutely aware of the deep concern of the members of the committee about this subject. I am also aware that my role here is to testify to fact, not to opinion, and hence I will express neither normative or predictive judgments.
BECKER: The Sam Alito that I have sat with for 15 years is not an ideologue. He's not a movement person. He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be.
He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants.
He was a career prosecutor, but in the numerous criminal cases on which we have sat together, if the evidence was insufficient or the search was flawed, he would vote to overturn the conviction.
And, if the record did not support summary judgment against the plaintiff in an employment discrimination or civil rights case, he would vote to reverse. His credo has always been fairness.
Now I know that there's been controversy about certain ideological views expressed in some 20-year-old memos. Whatever these views may be, his judging does not reflect them.
I think that the public does not understand what happens when you become a judge. When you take that judicial oath, you become a different person. You decide cases not to reach the result that you would like, but based on what the facts and the law command.
What you decide as a judge are not general principles but the case in front of you. You view it as narrowly as possible. That's what Sam always does, with great respect for precedent.
Sam Alito has been faithful to that judicial oath.
Now, my final point relates to his approach to the law -- another facet of his approach to the law. And the best calibers that I can find to measure his approach to the law was to compare it with my own.
I have been a federal judge for 35 years, one week and one day. My opinions would fill many bookshelves. But I think that I am fairly viewed as a mainstream or centrist judge.
A computer survey run by our court librarian received 1,050 opinions in cases in which Sam Alito and I sat together. In these cases, we disagreed 27 times, which is probably about the same number that I would have disagreed with most other colleagues.
Some cases turned on a reading of the record, others on how rigorously or flexibly we interpreted the reach of a statutory or constitutional provision or a state court's jurisprudence or applied our usually deferential standard of review.
But, in every case on which we differed, Sam's position was closely reasoned and supportable either by the record or by his interpretation of the law or both.
The short of it, members of the committee, is that Sam Alito is a superb judge in terms of temperament, integrity and intellect. And he has exhibited a careful, temperate, case-by-case approach to the law.
BECKER: Thank you for the opportunity to address you.
SPECTER: Thank you very much, Judge Becker.
We now turn to Chief Judge Anthony Scirica who, like Judge Becker, has known Judge Alito on the 3rd Circuit for the 15 years of Judge Alito's service there.
Judge Scirica became chief judge in May of 2003, succeeding Chief Judge Edward Becker. Judge Scirica has a Bachelor's degree from Wesleyan, 1962, Michigan Law School, 1965. Appointed to the district court by President Reagan and, in 1984, to the circuit court also by President Reagan in 1987.
Thank you very much for coming in, Judge Scirica, and we look forward to your testimony.
SCIRICA: Mr. Chairman, thank you very much.
For the last 15 years, I have worked with Judge Alito. For 15 years, we have decided thousands of cases while serving on the same Court of Appeals.
On most cases we have agreed, but not always. Judges don't always agree on every case.
As the chief justice remarked last summer, much like a baseball umpire, a judge calls balls and strikes. If the pitch is down the middle or way outside, the call is straightforward. But many pitches are on the corners and then the calls are difficult.
These cases require hard thought, and these are the cases where a judge earns his or her keep.
In 15 years on the Court of Appeals, Judge Alito has more than earned his keep. He is a thoughtful, careful, principled judge who is guided by a deep and abiding respect for the rule of law.
He is intellectually honest. He is fair. He is ethical. He has the intellect, the integrity, the compassion and the judicial temperament that are the hallmarks of an outstanding judge.
SCIRICA: On three separate occasions I spoke with a representative of the American Bar Association during its evaluation process. My views and those of my colleagues on the court were sought by the American Bar Association because we have a unique perspective on Judge Alito, a perspective that no one else has.
Anyone can read and interpret his opinions. But we know Judge Alito from almost daily contact over a period of years. We have sat together in the same conference room. We have discussed the cases. We have decided them. And we have exchanged legal memoranda.
Judge Alito approaches each case with an open mind and determines the proper application of the relevant law to the facts at hand. He has a deep respect for precedent. His reasoning is scrupulous and meticulous. He does not reach out to decide issues that are not presented in the case.
His personal views, whatever they might be, do not jeopardize the independence of his legal reasoning or his capacity to approach each issue with an open mind.
Like a good judge, he considers and deliberates before drawing a conclusion. I have never seen signs of a predetermined outcome or view, nor have I seen him express impatience with litigants or with colleagues with whom he may ultimately disagree.
He is attentive and respectful of all views and is keenly aware that judicial decisions are not academic exercises but have far- reaching consequences on people's lives.
We admire him as a person.
Despite his extraordinary talents and accomplishments, Judge Alito is modest and unassuming. His thoughtful and inquiring mind, so evident in his opinions, is equally evident in his personal relationships. He is concerned and interested in the lives of those around him. He has an impeccable work ethic, but he takes the time to be a thoughtful friend to his colleagues.
He treats everyone on our court, and everyone on our court staff, with respect, with dignity and with compassion.
SCIRICA: He is committed to his country and to his profession. But he is equally committed to his family, his friends and his community.
He is an admirable judge and an admirable person.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Judge Scirica.
We turn now to 3rd Circuit Judge Maryanne Trump Barry. Graduate of Mount Holy Oak 1958, Columbia university in 1962 with a Master's, and a law degree from Hofstra, 1974.
Judge Barry was in the U.S. Attorney's Office before Judge Alito was there. Appointed to the district court in 1983 by President Reagan, and to the circuit court in 1999 by President Clinton. She has worked with Judge Alito for the past six years as colleagues on the 3rd Circuit.
Thank you for joining us, Judge Barry, and we look forward to your testimony.
BARRY: Thank you, Mr. Chairman. Good afternoon.
Good afternoon, members of the committee.
It is my privilege to appear before you, and it is a particular privilege to speak on behalf of my friend and colleague, Judge Samuel Alito.
Now, I warn you, I may be a little free and call him Sam on occasion, because Judge Alito and I go back almost 30 years to 1977.
In 1977, Judge Alito came to the United States Attorney's Office in the District of New Jersey following his clerkship with Judge Leonard Garth, who was and remains a giant on our court.
Sam was assigned -- see, I did it -- to the appeals division and I was the chief of that division, although in those days I didn't have very much more experience than he did.
Now, I said appeals division -- that sounds very much more substantial than it was. For what it was, was three assistant United States attorneys working very, very hard at a very, very responsible job.
BARRY: We handled all the criminal appeals of those defendants who were convicted at trial. It was our job to master the record, to analyze the issues, to read the relevant cases, to write a persuasive brief on behalf of the United States and, if necessary, to argue the case on the floor of the Court of Appeals.
Nobody did it better than Sam Alito.
And if there were any doubt on that score, the best evidence is the fact that after just four years as an assistant United States attorney, he went directly to the Office of the Solicitor General. Only the best are able to do that.
For the next six years, Judge Alito distinguished himself with public service in Washington, D.C., and then he returned to the District of New Jersey in 1987 as the United States attorney.
Important cases were brought on his watch -- organized crime cases, drug trafficking cases, public corruption cases. I know because I was there. And as the district court judge at that time, having been appointed by President Reagan, I handled some of his more important cases.
Now, I mentioned the cases that were handled on his watch for another reason.
The tone of a United States Attorney's Office comes from the top. The standard of excellence is set at the top.
Samuel Alito set a standard of excellence that was contagious -- his commitment to doing the right thing, never playing fast and loose with the record, never taking a shortcut, his emphasis on first-rate work, his fundamental decency.
The assistant United States attorneys who worked for him were proud to do so. They admired him completely.
Now, of course, in 1990 Judge Alito became Judge Alito. And you have heard the most glowing things said about Sam as a colleague on our court. I embrace every glowing statement.
Let me just conclude with this: Judge Alito is a man of remarkable intellectual gifts. He is a man with impeccable legal credentials.
BARRY: He is a fair-minded man, a modest man, a humble man. And he reveres the rule of law.
If confirmed, Judge Samuel A. Alito, Jr. will serve as a marvelous and distinguished associate justice of the Supreme Court of the United States.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Judge Barry.
We turn now to Judge Ruggero Aldisert, with a bachelor's degree from the University of Pittsburgh in 1942 and a law degree from the same institution in 1947, with intervening service in the Marine Corps.
He served on the court of common pleas of Allegheny County from 1961 to 1968, at which point he was appointed to the 3rd Circuit by President Lyndon Johnson.
Judge Aldisert and I were reminiscing about my predecessor, Senator -- yet to be a judge, Senator Joe Clark, whose seat I now occupy.
He was chief judge from 1984 to 1986 and took senior status in 1986. He has been a adjunct professor at the University of Pittsburgh and has served with Judge Alito on the 3rd Circuit for the past 15 years.
Thank you for coming all the way from California, Judge Aldisert, to be with us today. And we look forward to your testimony.
ALDISERT: Thank you, sir.
Mr. Chairman and members of the committee, I thank you for this invitation to offer my views on my colleague.
But, before proceeding into my formal statement, I want the record to show that there was a discussion this morning about ages of judges. Well, I am an old man. And I will tell you how old I am.
There's a certain distinguished United States senator sitting up there who I swore in as a lawyer in the city of Pittsburgh over 40 years ago. And that's Orrin Hatch.
And I will also say that I presided over the first jury trial that he ever tried. And he won the case.
LEAHY: Oh, that's sweet, Orrin.
HATCH: I'm glad you said that, Judge. They don't believe it.
LEAHY: I never knew you won one. That's nice.
SPECTER: They've always gotten along very well together, Senator Leahy and Senator Hatch.
ALDISERT: When I first testified before this committee in 1968, I was seeking confirmation of my own nomination to the federal circuit court. I speak now as the I speak now as the most senior judge on the 3rd circuit.
And I begin my brief testimony with some personal background.
ALDISERT: In May 1960, I campaigned with John F. Kennedy in the critical presidential primaries of West Virginia.
The next year, I ran for judge, as was indicated, and I was on the Democratic ticket, and I served eight years as a state trial judge.
And as the chairman indicated, Senator Joseph Clark of Pennsylvania was my chief sponsor when President Lyndon Johnson nominated me to the Court of Appeals, and Senator Robert F. Kennedy from New York was one of my key supporters.
Now, why do I say this? I make this as a point that political loyalties become irrelevant when I became a judge. The same has been true in the case of Judge Alito, who served honorably in two Republican administrations before he was appointed to our court.
Judicial independence is simply incompatible with political loyalties, and Judge Alito's judicial record on our court bears witness to this fundamental truth.
I have been a judge for 45 of my 86 years. And based on my experience, I can represent to this committee that Judge Alito has to be included among the first rank of the 44 judges with whom I have served on the 3rd Circuit, and including another 50 judges on five other courts of appeals on which I have sat since taking senior status.
Moreover, I have been a longtime student of the judicial process. I have written four books on the subject and more than 30 law review articles. And this study required me to study the current work of 22 justices of the U.S. Supreme Court. And I've read hundreds of opinions of appellate judges of every federal circuit, every state, and every political stripe.
And the great Cardozo taught us long ago the judge, even when he is free, is not wholly free. He is not to innovate at pleasure. This means that the crucial values of predictability, reliance and fundamental fairness must be honored.
ALDISERT: And as his judicial record makes plain, Judge Alito has taken this teaching to heart. He believes that legal outcomes will follow the law as dictated by the facts of the particular case, whether the facts involve commercial interests, government regulation or intimate relationships.
According to these criteria, Mr. Chairman, Judge Alito is already a great judge.
We who have heard his probing questions during oral argument, we who have been privy to his wise and insightful comments in our private decisional conferences, we who have observed at first hand his impartial approach to decision-making and his thoughtful judicial temperament and know his carefully crafted opinions, we who are his colleagues are convinced that he will also be a great justice.
If Justice Alito is confirmed, as I believe wholeheartedly he deserves to be, he will succeed a justice who has gained a reputation as a practical justice, whose resistance to ideologically driven solutions has positioned her as a swing vote on the court.
And as has been heard several times in this hearing, Justice O'Connor, in 1995, described her approach to judging. What she said then is even more important today. And I quote, "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. The only way for judges to mediate these conflicting impulses is to do what they should do anyway: Stay close to the record in each case that appears before them and make their judgments based on that alone."
And knowing Sam Alito as I do, I am struck by how accurately these words also describe the way in which he has performed his work as a United States circuit judge.
And that is why, with utmost enthusiasm, I recommend that he be confirmed as an associate justice on the Supreme Court.
And thank you, Mr. Chairman.
SPECTER: Thank you very much, Judge Aldisert.
We turn now to Judge Leonard Garth who is coming to us -- you see him on the television screen -- coming to us from California. Judge Garth is a graduate of Columbia, 1942; served in the United States Army, lieutenant from '43 to '46; and then from the Harvard Law School, where he graduated in 1952.
In 1969, he was appointed to the district court by President Nixon, and then to the circuit court by President Nixon in 1973; a lecturer at Rutgers Law School and at the Seton Hall Law School.
Has known Judge Alito since Judge Alito clerked for Judge Garth back in 1976 to 1977 and has served with him on the 3rd Circuit for the 15 years of Judge Alito's tenure there.
SPECTER: Judge Garth, we very much appreciate your being with us, and we look forward to your testimony.
GARTH: Thank you, Senator Specter, Senator Leahy and the honorable members of the Senate Judiciary Committee -- and, of course, my own family of judges who have preceded me in speaking to you today.
I, too, am privileged to appear before you today, albeit by video conferencing rather than in person. I cannot be with you in person because I recently had some major spinal surgery, and I find it extremely difficult and painful to travel.
As Senator Specter has indicated, I have served as a federal judge for some 36 years, as a district court judge in New Jersey and, since August of 1973, as a member of the 3rd Circuit Court of Appeals.
Now, I do want to interject and say that in that respect, perhaps Judge Aldisert is older than I am -- not by many days.
And I'm almost as old as he is, but not quite as handsome as Judge Barry of my court.
I hope you'll forgive that aside, but I want to ask you something else to forgive me. I have heard all of my colleagues speak so eloquently, and I'll use the term that Judge Barry used, glowingly, about Judge Alito. But I have known him just a little bit longer and in a different capacity over the course of his career.
Following his graduation from law school, he served as one of my two law clerks in 1976 to 1977. And as you have heard, since 1990 he has served as my colleague on the court of appeals.
GARTH: During the interim years, because of the relationship that we developed during his clerkship and the fact that both he and I are New Jersey residents, we remain close to one another. Hence I think I can speak knowledgeably about Sam's qualifications and his talents, his discretion, his honesty, his fairness and his integrity.
These are qualities that Judge Alito possesses now and has possessed since the very beginning of his legal career.
Let me first tell you about Sam's clerkship with me. As you may know, a law clerk is a judge's legal adviser and a sounding board, if I may use that term. But he or she often becomes much more than that -- a member of the judge's extended family.
And, as a result, a judge gets to know his law clerk in a particularly personal way.
I knew Sam in this personal way at the very beginning of his career as a lawyer. For that reason, I think I have a unique perspective to share with you about him.
I chose Sam to be my law clerk in 1976 from among the literally hundreds of applicants who sent their resumes to me and the other judges of honor of our court that year.
Sam was still a law student when I interviewed him, but he struck me in that encounter as fiercely intelligent, deeply motivated and extremely capable.
I did not know at that time that Sam was the son of Samuel Alito Sr. That's a gentleman who had impressed me very, very much as a witness in the New Jersey redistricting case that I heard about 1972.
Once I made the connection, however, I fully understood why Sam was so impressive and why he regarded -- and regards today -- his father as a role model.
During his tenure with me, Sam bore out all my initial impressions of his excellence -- impressions which had led me to engage him. He was a brilliant and exceptional assistant to me.
He enabled me to test judicial theories and to fashion appropriate judgments in each case that came before our court. I have had some 85 law clerks assisting me in chambers over the course of my career on the bench.
GARTH: They have all been extremely well qualified in all ways to serve a court of appeals judge.
Sam Alito stands out even among that very elite group. And during the year that he was my law clerk, Sam and I frequently took an afternoon walk near the courthouse in Newark and discussed the cases while we walked.
I can tell you that the recommendations and arguments that Sam made about those cases were, as my colleagues have pointed out, always reasoned, principled and supported by precedent.
I developed, then, a deep respect for Sam's analytical ability, his legal acumen, his judgments, his institutional values and, yes, even his sense of humor which, if he is confirmed -- as I hope he might -- will probably compete with that of other justices.
Few of the cases that come before our court are slam-dunk cases. Most involve difficult questions on which reasonable people can disagree. And generally Sam and I reached agreement after discussing these cases, but more than once we did not.
Even in those latter cases, the ones in which we disagreed, I understood and respected the positions that Sam advanced and the contours of his analysis.
Our afternoon walks invariably ended at a neighborhood store, T.M. Ward Company, where we purchased peanuts and coffee. I note parenthetically that Ward has since honored Sam by naming a special blend of coffee that he favors, Judge Alito's Bold Justice Blend.
I think there are few of us that have that distinction.
After he left my chambers, Sam continued on to public service, as you have heard. In a letter to the then-Deputy Assistant Attorney General Arnold Burn, I endorsed Sam's candidacy for United States attorney for the district of New Jersey. And I want to just read you what I wrote. This was a long, long time ago.
"I can certify to Mr. Alito's integrity, ability, discretion and honesty.
GARTH: "Above and beyond those qualities, however, I believe his talents as a lawyer are exceptional.
"I am sure that his tenure in government service since he has left my chambers has reflected the fact that he is a thorough, meticulous, intelligent and resourceful attorney and that his judgments are mature and responsible. Indeed, he was one of the finest law clerks I have had the privilege to engage. And if I were to rate him on the basis of one to 10, 10 being the highest rating, he would without question receive a 10-plus rating."
I stress these same attributes when I endorsed Sam for membership on our court seven years later. He has more than lived up to my rating and the qualities that I attributed to him in the 15 years since he joined the court and became my colleague.
Sam is an intellectually gifted and morally principled judge. We have not always agreed on the outcome of every case, as just recently stated.
Just this fall, for example, Sam dissented from a majority opinion that I wrote in an Employee Retirement Income Security Act -- that's ERISA -- that I wrote in an ERISA case.
In that case, Sam and I disagreed about how two provisions of the statute interact. I and the other majority judge were attracted in large part to the reasoning of the 2nd Circuit.
Judge Alito, on the other hand, was attracted by the reasoning of the 7th Circuit. Even in the cases on which we disagree, however, I always respect Sam's opinion -- just as I did during our afternoon walks when he was my law clerk.
Sam is also a prudent judge.
Make no mistake, he is no revolutionary. He is a sound jurist, always respectful of the institutions and the precepts that led to the decisions in the cases under review.
I have heard concerns expressed about whether Judge Alito can be fair and evenhanded.
GARTH: Let me assure me from my extensive experiences with him and with my knowledge of him going back, as I have stated, over 30 years, that he will always vote in accordance with the Constitution and laws as enacted by Congress.
His fairness, his judicial demeanor and actions, and his commitment to the law -- all of those qualities which my colleagues and I agree he has -- do not permit him to be influenced by individual preferences or any personal predilection.
As you may know, when the judges of our court meet in conference -- and I think Judge Becker referred to this in his remarks -- we are the only individuals in chambers. No law clerks, no assistants, no administrative personnel or, indeed, anyone else attend these conferences.
I can tell you with confidence that at no time during the 15 years that Judge Alito has served with me and with our colleagues on the court and the countless number of times that we have sat together in private conference after hearing oral argument, has he ever expressed anything that could be described as an agenda. Nor has he ever expressed any personal predilections about a case or an issue or a principle that would affect his decisions.
He has a deep and abiding respect for the role of stare decisis and established law. I appreciate, of course, that the Supreme Court can retreat from its earlier decisions, but it does so rarely and only in very special circumstances.
And I am convinced that if Judge Alito is confirmed as an associate justice of the Supreme Court, he will continue to honor stare decisis as he did as a law clerk and as he has done as a member of our court.
He will sit among those jurists whose qualities of fairness and of principle are the lode star of the judiciary.
GARTH: In my opinion, Sam is as well qualified as the most qualified justices currently sitting on the Supreme Court.
A word about Sam's demeanor is in order. Sam is and always has been reserved, soft spoken and thoughtful. He is also modest, and I would even say self-effacing. And these are the characteristics I think of when I think of Sam's personality. It is rare to find humility such as his in someone of such extraordinary ability.
Over the 30 years I have known Sam, I have seen him grow professionally into the reserved, mature, independent and apolitical jurist that graces our court today. I regard him as the most qualified member of our court to be considered as an associate justice of the Supreme Court.
I know that just as Judge Alito has brought and brings grace and luster to the 3rd Circuit, so too will he bring grace and luster to the United States Supreme Court if he is confirmed.
Thank you, members of the Senate Judiciary.
SPECTER: Thank you very much, Judge Garth, coming to us, I've just been advised, from Phoenix, Arizona. Thank you.
Our next witness is Judge John Gibbons. Graduate of Holy Cross, 1947, bachelor's, Harvard Law School in 1950. Nominated to the 3rd Circuit by President Nixon in 1970, chief judge from 1987 to 1990 -- at which time he resigned to become a professor of law at Seton Hall University.
He now is in the practice of law. Known Judge Alito for more than 20 years when Judge Alito was a U.S. attorney and has tried cases before Judge Gibbons.
Thank you very much for being with us today, Judge Gibbons, and we look forward to your testimony.
GIBBONS: Mr. Chairman and members of the Judiciary Committee, as you all probably know, or as Senator Specter has just said, I was a member of that court of appeals where Judge Alito is now a member for 20 years.
And, indeed, it was my retirement from that court 16 years ago that created the vacancy which Judge Alito filled on the court of appeals.
Since his appointment, lawyers in the firm of which I'm a member have been regular litigators in the courts of the 3rd Circuit, not only on behalf of clients who pay us handsomely for such representation but also frequently through the firm's Givens Fellowship Program on behalf of nonpaying clients whose cases have presented those courts with challenging human rights issues.
The Givens Fellowship Program is certainly a significant part of our practice, as aptly demonstrated by the fact that, since 1990, Givens Fellows lawsuits have resulted in 115 reported judicial decisions.
This committee should appreciate that the Court of Appeals for the 3rd Circuit has been, for the 50-plus years that I followed or participated in its work, a centrist legal institution.
An important reason why that's so is that, many years ago the court adopted the requirement that all opinions intended for publication must, prior to filing, be circulated by the opinion writer not only to the members of the three-judge panel, but also to the other active judges on the court.
The purpose of this internal operating rule was to permit each active judge not only to comment upon the opinion writer's treatment of 3rd Circuit and Supreme Court precedent but also to vote to take the case en banc for rehearing by the full court if the judge thought that the opinion was outside the bounds of settled precedent.
Thus, the level of interaction among the 3rd Circuit appellate judges has, for a half century, been unusually high. This committee should also appreciate that appointment to an appellate court where one has life tenure is a transforming experience.
GIBBONS: I remember a former judicial colleague saying to me once, after several years on the bench, "John, what other job in the world is there in which you can look in the mirror while you're shaving and say to yourself, 'All I have to do today is the right thing according to the law?'"
A good judge puts aside interests of former clients, interests of organizations one may have belonged to and interests of the political organization that may have been instrumental in one's appointment.
I personally experienced that transformation, and I witnessed it repeatedly in the judicial colleagues who joined the court after I did.
These two points, the unusual internal cohesion of the 3rd Circuit Court of Appeals and the transformative experience of serving on a court protected by life tenure, suggest to me that the committee members in determining whether or not to vote in favor of confirming Judge Alito should concentrate not on what he thought or said as a recent Princeton undergrad or graduate or as a young lawyer seeking advancement as an employee of the Department of Justice, but principally, if not exclusively, on his record as an Article III appellate judge.
If you look, as you should, at that 15 record as a whole, you cannot, in good conscience, conclude that Judge Alito will bring to the Supreme Court any attitude other than the one held by the colleague I mentioned who thought important thoughts about judging every morning while he was shaving.
He has consistency followed the practice of carefully considering both Supreme Court and 3rd Circuit Court precedents.
Very few of the opinions he has written for a unanimous panel or for a panel majority have moved his colleagues among the active judges to vote to take the case en banc. The cases in which he participated that produced dissenting opinions by him or from him, all, it seems to me, were close cases in which either the law or the evidentiary record were such that equally conscientious judges could quite reasonably disagree about the outcome.
GIBBONS: Take, for example, cases presenting challenges to state regulations of abortion, certainly a hot-button topic for many people who are opposing Judge Alito's confirmation.
I found four such cases in which he participated. In three of them, he decided against state regulations that might have put a burden on a woman's choice for an abortion.
In the fourth case, about which a lot has been said, Planned Parenthood of southeastern Pennsylvania v. Casey, Judge Alito dissented from a majority opinion holding unconstitutional the Pennsylvania spousal consent provision for an abortion. And it is that dissent which the opponents of his confirmation talk about most frequently.
They seem to urge that on the basis of that dissent, Judge Alito is so far out of the mainstream of constitutional law that his confirmation will endanger the constitutional protection of civil rights practically across the board.
In your consideration of that dissent, I suggest that you should take into account these points.
First, at the time the circuit considered the Pennsylvania spousal consent statute, the Supreme Court had not yet decided whether states could impose such a requirement.
And second, the Court of Appeals majority invalidated the statute. Had the Supreme Court simply denied certiorari, that invalidation would have remained in place.
GIBBONS: Instead, at least four justices voted to grant certiorari.
If the issue of the statute's constitutionality was so overwhelmingly clear, why was certiorari granted to endorse the 3rd Circuit's majority position?
Clearly, Planned Parenthood v. Casey was, at the time the court of appeals acted, a case over which conscientious judges could reasonably disagree. Otherwise, the Supreme Court would simply have denied certiorari.
Nothing in the Supreme Court's case law dealing with abortion relieves the appellate judges in intermediate appellate courts from the duty of making a conscientious effort to fit the case before them within that case law -- and the four abortion cases in which he participates show that that is exactly what Judge Alito has done.
Another opinion that has caught the attention of those clamoring for Judge Alito's scalp is his dissent in United States v. Rybar, in which he would have held that the Supreme Court decision in Lopez prohibited Congress from regulating mere possession of machine guns. The majority opinion upheld the statute.
Unlike Casey, the Supreme Court didn't review that case. Thus, the question of the reach of Lopez was left open. And when the issue reached the 9th Circuit in the United States v. Stewart in 2003, it adopted Judge Alito's dissenting position.
Some opponents of his confirmation have relied on that dissent in suggesting that Judge Alito is perhaps a captive of the right-wing gun lobby.
This committee, after actually reading Lopez and Rybar and the 9th Circuit case, I suggest, cannot in good conscience find the dissent to be anything more than a good faith effort to somewhat unenthusiastically apply the perhaps unfortunate Supreme Court precedent of Lopez.
Indeed, in his Rybar dissenting opinion, Judge Alito suggested how Congress could cure the Lopez violation.
The extent to which opponents of Judge Alito's confirmation largely ignore his overall 15-year record as a judge suggests, at least to me, that the real target for many of the somewhat vitriolic comments on the nomination is less him than the executive branch administration that nominated him.
GIBBONS: The committee members should not think for a moment that I support Judge Alito's nomination because I'm a dedicated defender of that administration.
On the contrary, I and my firm have been litigating with that administration for a number of years over its treatment of detainees held at Guantanamo bay, Cuba and elsewhere. And we are certainly chagrined at the position that is being taken by the administration with respect to those detainees.
It seems not unlikely that one or more of the detainee cases that we are handling will be before the Supreme Court again. I do not know the views of Judge Alito respecting the issues that may be presented in those cases. I would not ask him. And if I did, he would not tell me.
I'm confident, however, that, as an able legal scholar and a fair-minded justice, he will give the arguments -- legal and factual -- that may be presented on behalf of our clients, careful and thoughtful consideration without any predisposition in favor of the position of the executive branch.
That's more than the detainees have received from the Congress of the United States, which recently enacted legislation stripping federal courts of habeas corpus jurisdiction to hear many of the detainees' claims -- without even holding a committee hearing.
Justice Alito is a careful, thoughtful, intelligent, fair-minded jurist who will add significantly to the court's reputation as the necessary expositor of constitutional limits on the political branches of the government. He should be confirmed.
SPECTER: Thank you very much, Judge Gibbons.
Our final witness on the panel is former 3rd Circuit Judge Tim Lewis, a graduate of Tufts University in 1976, a law degree from Duquesne in 1980.
SPECTER: He served as an assistant United States attorney before President Bush the elder appointed him to the Western District Court. And then in 1992, President Bush the elder nominated him to the 3rd Circuit.
Judge Lewis resigned in 1999 and now is co-chair of the appellate practice group at the Schnader Harrison office. He serves as co-chair of the National Committee on the Right to Counsel, a public service group dedicated to adequate representation of indigents.
Judge Lewis and Judge Alito served together on the 3rd Circuit for seven years.
We appreciate your being here, Judge Lewis. And the floor is yours.
LEWIS: Thank you very much, Senator Specter.
Thank you, members of the committee. It's a pleasure and an honor to be here today.
When Thurgood Marshall announced his intention to resign as a justice of the United States Supreme Court in conference one day, the first person to respond was Chief Justice Rehnquist. Chief Justice Rehnquist's words were, "No, Thurgood, no. Please don't. We need you here."
Shortly thereafter, when Justice Marshall had resigned, he was interviewed and, in the course of that interview, was asked about Chief Justice Rehnquist. And during that interview, he said, "This is the best chief that I have ever served under" and went on to extol Chief Justice Rehnquist's service on the United States Supreme Court.
Now, I was quite frankly stunned by both of those observations when I learned them at the time. And it wasn't until I had served for a period of time as a judge on the United States Court of Appeals that it all began to make sense to me.
It is no coincidence to anyone who is familiar with my body of work while I served on the United States Court of Appeals and my body of work since having left the court, that I happen to be sitting on the far left of this panel here this afternoon.
And yet, I am here. And what I have just related about the exchanges between Justice Marshall and Justice Rehnquist -- and Justice Marshall's later observation about the chief justice helps explain why I am here, because it is true that during the time that I served with Judge Alito, there were times when we did not agree.
I am openly and unapologetically pro-choice and always have been. I am openly -- and it's very well known -- a committed human rights and civil rights activist and am actively engaged in that process as my time permits, my law practice permits today and through my law practice at Schnader Harrison Segal & Lewis.
LEWIS: I am very, very much involved in a number of endeavors that one who is familiar with Judge Alito's background and experience may wonder -- well why are you here today saying positive things about his prospects as a justice on the Supreme Court?
And the reason is that having worked with him, I came to respect what I think are the most important qualities for anyone who puts on a robe, no matter what court they will serve on, but in particular, the United States Supreme Court.
And first and foremost among these is intellectual honesty. As Judge Becker and others have alluded to, it is in conference, after we have heard oral argument and are not propped up by law clerks -- we are alone as judges, discussing the cases -- that one really gets to know, gets a sense of the thinking of our colleagues.
And I cannot recall one instance during conference or during any other experience that I had with Judge Alito, but in particular during conference, when he exhibited anything remotely resembling an ideological bent.
That does not mean I agreed with him. But he did not come to conference or come to any decision -- any decision -- that he made during the time that I worked with him, based on what I perceived to be an ideological bent or a result-oriented demeanor or approach.
He was intellectually honest and, I would say rigorously so, even with respect to those areas that he and I did not agree.
Second, I have no hesitation in commending his commitment to principal, both in how he went about his work on the 3rd Circuit and how he came to his decisions.
LEWIS: It was through a very difficult process we all would put ourselves through.
But in Sam's case, I think that I can say that no one worked harder at coming to what he thought was the right decision than Judge Alito.
Finally, though we did disagree, it was always respectful, and that is what I came to understand as probably the most important facet of appellate judging. No one, and I mean no one, has a corner on the marketplace of ideas in terms of what is best, what is right.
We have different approaches and it's very important that we maintain different approaches in positioning and in pushing forward our sense of jurisprudence. They do not have to be the same.
In fact, I think that it is contrary to the best interests of democratic government for there to be some monolithic approach to judicial decision-making on the United States Supreme Court or on any other court.
Sam Alito practiced a form of jurisprudence that I think is best referred to as judicial restraint, judicial deference. It is, in many respects, a more conservative form of jurisprudence than was my own. And that is fine. That is perfectly fine. And as a matter of fact, I dare say it's important because through the exchanges we learn from one another and I think we're a better court.
And I know that this is the case on the Supreme Court, as it is reflected in Chief Justice Rehnquist's observation when Justice Marshall announced his resignation.
And I think that it's important that different approaches be respected.
So that in the end I am here as a matter of principle and as a matter of my own commitment to justice, to fairness and my sense that Sam Alito is uniformly qualified in all-important respects to serve as a justice on the United States Supreme Court.
SPECTER: Thank you very much, Judge Lewis.
This distinguished panel has been accorded much more time than we customarily allow because of the very large number of witnesses which we have.
SPECTER: But out of deference to your positions and your coming here and your unique knowledge, we have done that.
I would like to ask each of you a great many questions, but I'm going to limit myself to five minutes. And I would urge that the responses be sounds clips.
You haven't had as much experience with that as we have, but on the networks a sound clip goes for about eight seconds and locally about 18 seconds. You don't have to quite do that, but as close as you can.
You can start my clock now.
Judge Becker, the conference is a unique opportunity, as has been explained, to really find out about what your colleagues think. Do you think -- is your judgment that Judge Alito would allow his personal views on a matter to influence his decisions as a justice?
BECKER: I do not think that. I am confident that he would not.
SPECTER: Judge Garth, you spoke about stare decisis. You have been quoted about your views of Judge Alito as to his approach, if confirmed, where the bounds of a Supreme Court justice on stare decisis are not the same as a court of appeals judge.
As Judge Gibbons has noted, the issue of a women's right to choose has become a very central factor in our deliberations. Do you have any insights which you would care to offer as to how Judge Alito would weigh the issue of stare decisis on that particular subject?
GARTH: (OFF-MIKE) And it would be presumptuous of me to even think of how he would rule on that subject.
GARTH: But I can tell you that when it comes to applying the precedents in our court and in the Supreme Court, he has always been assiduous in the manner in which he has applied them. And he has always had good reason and principle.
I can't say more than repeat again that I believe that Judge Alito, when he described to the committee how he would rule on a case and what he would do in respect of stare decisis, I could not express it better than he did.
SPECTER: Judge Barry, you've sat with him in these private conferences, known him for a long time, back to days when you were in the -- and I hadn't noted that -- you were in the U.S. Attorney's Office when he was an assistant. How would you evaluate Judge Alito on his consideration of women's issues?
BARRY: If I had to add anything to my initial testimony, I would have stated more about what Sam and I did together on this wonderful court and how reasonable he was, and how he never indicated bias of any kind.
I told you at the outset I have known Judge Alito for almost 30 years. I have the utmost respect for him. I have never heard him say one thing that would give me any reason to believe that he would give other than the most careful consideration to what you described as women's issues.
SPECTER: Judge Lewis, I have a question for you. And then I'm going to propound a question for the other three judges before my red light goes on.
SPECTER: I would like you to be a little more specific in your evaluation on Judge Alito as to how he would handle the civil rights issue.
And I'm not going to wait for to you start to answer because my red light will go on in advance.
And then I'm going to ask Judge Scirica, Judge Aldisert and Judge Gibbons to address the subject which has concerned this committee in some detail, as to whether there is any tilt in Judge Alito's approach to the powerful, to the government, as opposed to the average citizen whom we characterize as "the little guy?"
Would you start, Judge Lewis, with your evaluation?
LEWIS: Yes, I will. Thank you, Senator.
Let me begin by saying that, if I believed that Sam Alito might be hostile to civil rights as a member of the United States Supreme Court, I guarantee you that I would not be sitting here today.
That's the first thing that I want to make clear.
My experience in civil rights cases on the 3rd Circuit were primarily in the Title VII area, with Judge Alito. And there were cases in which we agreed and cases where we disagreed.
There was one in particular, the Piscataway case which was, for lack of a better term, a reverse discrimination case that became an en banc matter where I and a number of my colleagues wound up writing dissenting opinions.
But that was a very close and, I think, very closely contested case having to do with whether or not Title VII contemplated diversity as an interest that an employer could use.
And, to my disagreement and chagrin, the majority did not agree with Judge Sloviter, Judge McKee and myself in that case.
But I never felt that Judge Alito or any of my colleagues who were in the majority in that case were in any sense hostile to civil rights interests. It was a legal question and they came out the way that they did.
In other cases -- for example, the Aman v. Cort Furniture case which I authored.
LEWIS: Judge Alito was not on the panel, but as I think Judge Gibbons mentioned, all opinions are circulated on the 3rd Circuit.
And so really, any opinion that comes out as the opinion of the court. I don't believe in that case, which was another Title VII case that I think furthered the law in some very important respects, defining racial code words as actionable under Title VII -- I believe that Judge Alito went along with that. I was very happy that he did that. And there were others.
My sense of civil rights matters and how courts should approach them jurisprudentially might be a little different. I believe in being a little more aggressive in these areas.
But I cannot argue with a more restrained approach. As long as my argument is going to be heard and respected, I know that I have a chance. And I believe that Sam Alito will be the type of justice who will listen with an open mind and will not have any agenda-driven or result-oriented approach.
SPECTER: Judge Scirica, would you reply as briefly as you can as to the question I've posed?
SCIRICA: In my 15 years with Sam Alito, I have never seen any indication that he would favor that particular interest.
SPECTER: Judge Aldisert?
ALDISERT: Well, I'd approach it from a rather personal standpoint.
Judge Alito is an American of Italian origin and, until quite recently, Americans of Italian origin were subject to a lot of discrimination -- quotas as to whether they could get into professional schools.
A little example in my particular case. When you consider all the Americans of Italian origin from New England, Connecticut, New York, New Jersey, Pennsylvania and along the seaboard, there had never been an American of Italian origin -- where these millions of Americans of Italian origin lived -- there had never been an American of Italian origin ever appointed to the United States Court of Appeals until President Johnson appointed me in 1968.
ALDISERT: So I can speak from experience: Things are better now, but I have lived through that.
When you look at Judge Alito, his father came to the United States as an Italian immigrant at a very early age. And I'm certain that the idea of protecting the rights of the so-called little guy is in the genes of Samuel A. Alito Jr.
SPECTER: Judge Gibbons, as briefly as you can.
GIBBONS: Well, his attitude toward criminal defendants is of some significance for our law firm, because we have a very big white collar criminal defense practice. And my partner, Larry Lustberg, prepared a memo on the subject.
He says although given his prosecutorial background, Judge Alito has been seen by many of the defense bar as pro-government. A thorough review of his record shows that, in fact, he's a fair-minded jurist who pays careful attention to the record below and who takes great pains to apply precedent.
Now he then goes on in the memo to review the series of cases in which Judge Alito decided against the government on many significant issues.
And he concludes, "While, like most appellate judges, there are far more decisions affirming than reversing convictions" -- that is certainly true of every judge who's sat on the court of appeals -- "Judge Alito's jurisprudence is properly characterized as careful, based on precedent and particularly attentive to the record. If that record does not support affirmance, he reverses."
But he also included an admonition to the rest of the department that you better know the record, because he will.
SPECTER: Thank you, Judge Gibbons.
Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved