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

Part II of III

The transcript picks up with 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.

(LAUGHTER)

ALITO: Well, I'll take the Fifth Amendment on the second part of the question.

(LAUGHTER)

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.

(LAUGHTER)

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.

Thank you.

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.

DURBIN: OK.

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.

Senator Graham?

No comments. Wonderful.

Senator Cornyn?

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.

(LAUGHTER)

And it doesn't take long if you do it before lunch.

(LAUGHTER)

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

WITNESSES:

U.S. REPRESENTATIVE CHARLES GONZALES (D-TX)

U.S. REPRESENTATIVE DEBBIE WASSERMAN SCHULTZ (D-FL)

STEPHEN TOBER,

CHAIRMAN,

AMERICAN BAR ASSOCIATION (ABA) STANDING COMMITTEE

ON THE FEDERAL JUDICIARY

MARNA TUCKER,

ABA D.C. CIRCUIT REPRESENTATIVE

JOHN PAYTON,

ABA FEDERAL CIRCUIT REPRESENTATIVE

EDWARD BAKER,

JUDGE,

U.S. COURT OF APPEALS

ANTHONY SCIRICA,

CHIEF JUDGE OF THE U.S. COURT OF APPEALS

FOR THE 3RD CIRCUIT

MARYANN BERRY,

JUDGE,

U.S. COURT OF APPEALS

RUGGERI ALDISERT,

JUDGE,

U.S. COURT OF APPEALS

LEONARD GARTH,

JUDGE,

U.S. COURT OF APPEALS

JOHN GIBBONS,

RETIRED U.S. COURT OF APPEALS JUDGE

TIMOTHY LEWIS,

RETIRED U.S. COURT OF APPEALS JUDGE

CHARLES FRIED,

FORMER U.S. SOLICITOR GENERAL,

1985-89,

PROFESSOR OF LAW,

HARVARD LAW SCHOOL

ANTHONY KRONMAN,

PROFESSOR OF LAW,

FORMER DEAN,

YALE LAW SCHOOL,

NORA DEMLEITNER,

FORMER CLERK TO JUDGE ALITO,

PROFESSOR OF LAW,

HOFSTRA UNIVERSITY SCHOOL OF LAW

ERWIN CHEMERINSKY,

PROFESSOR OF LAW,

PROFESSOR OF POLITICAL SCIENCE,

DUKE UNIVERSITY LAW SCHOOL

MICHAEL GERHARDT,

PROFESSOR OF CONSTITUTIONAL LAW,

UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW

SAMUEL ISSACHAROFF,

PROFESSOR OF CONSTITUTIONAL LAW,

NEW YORK UNIVERSITY SCHOOL OF LAW

GOODWIN LIU,

ASSISTANT PROFESSOR OF LAW,

UNIVERSITY OF CALIFORNIA, BERKELEY,

BOALT HALL

BETH NOLAN,

PARTNER,

CROWELL & MORING LLP LITIGATION GROUP

LAURENCE TRIBE,

PROFESSOR,

HARVARD UNIVERSITY,

PROFESSOR OF CONSTITUTIONAL LAW,

HARVARD LAW SCHOOL

REGINALD TURNER,

PRESIDENT,

NATIONAL BAR ASSOCIATION

FRED GRAY,

FORMER CIVIL RIGHTS ATTORNEY

SENIOR PARTNER,

GRAY, LANGFORD, SAPP, MCGOWAN, GRAY & NATHANSON,

KATE MICHELMAN,

FORMER PRESIDENT OF THE NATIONAL ABORTION AND

REPRODUCTIVE RIGHTS ACTION LEAGUE

PRO-CHOICE AMERICA

RONALD SULLIVAN,

ASSOCIATE CLINICAL PROFESSOR OF LAW,

SUPERVISING ATTORNEY,

YALE LAW SCHOOL

AMANDA FROST,

ASSISTANT PROFESSOR OF LAW,

AMERICAN UNIVERSITY'S WASHINGTON COLLEGE OF LAW

JOHN FLYM,

FORMER PROFESSOR OF LAW,

NORTHEASTERN UNIVERSITY SCHOOL OF LAW

STEPHEN DUJACK,

FREELANCE WRITER,

EDITOR,

ENVIRONMENTAL FORUM

PETER KIRSANOW,

COMMISSIONER,

U.S. COMMISSION ON CIVIL RIGHTS

CATHY FLEMING,

PRESIDENT ELECT,

NATIONAL ASSOCIATION OF WOMEN LAWYERS

CARTER PHILLIPS,

MANAGING PARTNER,

SIDLEY AUSTIN LLP

KATE PRINGLE,

FORMER ALITO CLERK,

PARTNER,

FRIEDMAN,KAPLAN, SEILER AND ADELMAN LLP

JACK WHITE,

FORMER ALITO CLERK,

ASSOCIATE,

KIRKLAND AND ELLIS LLP

THEODORE SHAW,

PRESIDENT,

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.

(LAUGHTER)

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.

(LAUGHTER)

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?

LEAHY: Yes.

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?

LEAHY: Sure.

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.

Senator Hatch?

HATCH: I'll reserve my time, thank you.

SPECTER: Thank you.

Senator Kennedy?

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: Yes.

(CROSSTALK)

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...

(CROSSTALK)

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...

(CROSSTALK)

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?

PAYTON: Yes.

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?

PAYTON: 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?

PAYTON: Yes.

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.

Senator Feinstein?

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.

Senator Kyl?

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.

(LAUGHTER)

SESSIONS: Well, we're glad you don't have to do background work on senators.

(LAUGHTER)

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.

Senator Graham?

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.

Senator Schumer?

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.

Pardon me.

Senator Coburn, do you have questions of the ABA?

(LAUGHTER)

SESSIONS: AMA, he'd like to ask about.

(LAUGHTER)

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.

(LAUGHTER)

Judge Becker?

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