Transcript

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

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Thursday, January 12, 2006; 5:25 PM

The transcript picks up with Sen. Feinstein's questions. Return to Part II.

Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman.

And I'd like to thank you very much for being here. I think the testimony was very interesting. I listened acutely.

And, you know, I think we'd all be very lucky if any one of us had colleagues like you that would come forward and say the things that you all have said.

Let me ask this question. How do you look at the evaluations that have been done, those evaluations that say, "Well, in the cases looked that he has judged," whatever percent it was but let's say it's 70 percent, I'm just making it, in favor of corporations or business, or against the little man? How do you look at that sample and how do you regard that? It's been written about rather extensively.

Anyone that would like to try to answer it.

Judge Becker?

ALDISERT: I would try that.

FEINSTEIN: Oh, all right. Give Judge Becker, because I've known him longer.

BECKER: Senator Feinstein, first of all, you have to keep in mind that -- and I think this is a national -- this statistic applies nationwide. I think somewhere between 80 and 85 percent of cases are affirmed. So a lot of this is going to determine who won in the district court or who won in the agency. So those numbers are skewed by that very fact.

The only other thing I would say is, I haven't analyzed these statistics, but that's nothing I've ever seen. He's voted with me. There was a case not long ago, it was a very thin employment discrimination case which a woman, while she never got to a jury in district court, one of my colleagues wanted to affirm. I was on the fence. And Sam wanted to reverse. I said, "OK, write it up." And we went along.

I've just never seen any evidence that he's for the big guy against the little guy. But I think if you analyze these, I think you'd find most of the statistics come from the fact that the big guy won in the district court and 80 to 85 percent of those case are affirmed, and most of those would have been unanimous.

ALDISERT: I was about to say the same thing, but my good friend Judge Becker, your figure was a little skewed there.

ALDISERT: The percentage of reversals is not 15 percent; it's 8.7 percent...

(LAUGHTER)

... in the statistics of last year of all cases. In criminal cases, through in the figures of 2004, the reversal rate in criminal cases was 5.1 percent.

BECKER: I always defer to the master...

BARRY: And of course it should be added that when we are considering cases on appeal, we are operating on a standard of review. So we are not typically looking at the issues underlying that review.

We're looking at an abusive discretion standard. We're looking at: Were the facts clearly erroneous? So we're not starting from scratch, typically.

FEINSTEIN: Let me ask you this question: The subject of abortion and Roe was raised. And, obviously, if you've listened to the hearings, you've heard the questioning going on, back and forth.

I was very puzzled when I read Chief Justice Roberts' statement before us on Roe and how he answered Senator Specter's questions. And the chief ended up by saying that he felt that Roe was well-settled law. I think he even added to that very well-settled law.

SPECTER: He said settled beyond that.

FEINSTEIN: All right, settled beyond that.

And I asked Judge Alito, and I thought at the very least he was going to agree with Justice Roberts.

FEINSTEIN: And he said, "Well, it all depends upon what settled means."

What do you make of that?

BARRY: I respectfully cannot characterize what Judge Alito meant by that, and I much prefer not to have to try.

FEINSTEIN: That's fine.

Anybody?

(UNKNOWN): I think we're here as fact witnesses more than opinion witnesses, Senator Feinstein, and I really would not answer that question.

FEINSTEIN: Very good, very good.

(UNKNOWN): I couldn't make a judgment on it.

FEINSTEIN: Thank you. Thank you very much.

Thanks, Mr. Chairman.

SPECTER: Senator Hatch?

HATCH: Well, I want to express my gratitude to all of you judges -- you too out there in the West, Judge Garth -- for coming here today and helping this committee.

It was pretty apparent that I got quite emotional when my old friend Judge Aldisert testified -- I really did. I got emotional because I care for you and I watched you for years there and just have a tremendous amount of respect. Read your books -- and you've always sent them to me. And that's meant a lot to me.

But you all mean a lot to me. It's no secret that, with very few exceptions, I love the federal courts. I love the judges. And there are very few exceptions.

There are a few that I think you could name yourselves.

(LAUGHTER)

But by and large -- you know, we pass unconstitutional legislation up here all the time and the president sometimes, too.

(LAUGHTER)

If it hadn't been for the courts, we would probably not have preserved the Constitution.

(LAUGHTER)

So I want to give you all credit for that.

But let me just say this -- by the way, just to correct the record, what Judge, now Chief Justice Roberts -- he and Judge Alito basically said the same thing. They said, well, it's settled as a precedent of the court -- with regard to Roe v. Wade. And that's exactly what he said. Entitled to respect under principles of stare decisis. That's basically what Alito said.

HATCH: And Roberts said, "And it is settled as a precedent of the court, yes."

So Senator Specter asked him some more, and then he said, I think the initial question for the judge confronting an issue in this area -- you don't go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding.

So these are maybe touchy words, but it's important to get it right.

Now, one of the most prominent issues in this hearing has been how Judge Alito views the role of precedent in deciding cases. Too often, I think, the objective seems not so much to get insight into Judge Alito's general views about precedent, but about clues about how he will treat particular precedents.

First, let me make this point about Judge Alito's record regarding circuit precedent. As I understand it, the appeals court can reconsider its own precedents only when all 3rd Circuit judges sit together en banc.

Is that correct?

(UNKNOWN): That is correct.

HATCH: OK. It is my understanding that in his 15 years on the 3rd Circuit, Judge Alito has participated in 38 en banc decisions.

Now, Judge Alito voted to overturn circuit precedent in just four of those cases. Two of those decisions were unanimous, all judges agreed.

Now, that does not look to me like someone who plays fast and loose with precedent.

Let me just ask you, Judge Becker -- and if anybody disagrees with what Judge Becker says I'll be happy to have you respond -- let me ask you a question about Judge Alito's handling of -- and the reason I ask Judge Becker is Judge Becker, as Senator Specter said, is the 101st senator. He came down here and gave (inaudible) time trying to help this asbestos problem, and we all respect him for that.

Let me just say, I know you have participated in more than 1,000 cases -- or decisions rather -- with Judge Alito. All of you, of course, can offer your thoughts as well.

Yesterday during the hearing, one of my Democratic colleagues held up some charts listing quotes from a few case in which Judge Alito's colleagues criticized how he applied circuit precedent. The picture that was painted was that Judge Alito misapplies precedent when it suits him -- suggesting, I suppose, that he might be an activist or careless in this regard on the Supreme Court.

HATCH: Now I certainly agree that the views of his fellow judges are particularly relevant on this point, and having you here is very valuable to all of us for that reason.

Now, asking you all about this here seems more useful than a few selective sentence fragments on a chart.

Realizing, Judge Becker, that judges do not always agree on every single point every single time, how would you characterize Judge Alito's overall view or approach to precedent?

BECKER: Respectful of it. I've never seen what was portrayed where...

(CROSSTALK)

BECKER: Judge Alito might have disagreed with prior precedent, but he followed it unless he felt that it was dicta -- in which case it wouldn't be precedent...

HATCH: Right.

BECKER: ... or the case was distinguishable. But I have never seen him ignore or disregard precedent.

HATCH: Has any of the rest of you seen that?

(UNKNOWN): No.

HATCH: Judge Aldisert?

ALDISERT: Judge Hatch...

HATCH: Senator Hatch, please.

(LAUGHTER)

ALDISERT: I wanted to answer Judge Feinstein (sic) the same way.

In my book "The Judicial Process: Text, Materials and Cases," second edition, 1996, I have an entire chapter on precedent.

And one of those sections is called viability of precedent or when do you depart? And there's a sophisticated body of law -- and I cite cases with Justice Sandra Day O'Connor, Thurgood Marshall and a few others.

And there are also some very important scholarly academic articles on it. And I think that Judge Alito's expression that it depends is a statement that you have to consider all the factors on all the Supreme Court cases that discuss when do we depart from precedent?

ALDISERT: And there's a body of law. And it's in my case book.

HATCH: Thank you so much.

Mr. Chairman, I want to thank all of these great judges for being here. And I want to thank you, Judge Lewis, for taking time to be here, in particular. We just really respect you. I love and respect the 3rd Circuit Court of Appeals.

SPECTER: Thank you, Senator Hatch.

Senator Leahy?

LEAHY: Well, Mr. Chairman, I realize we have some retired and very distinguished retired judges, but some current judges. Insofar as the current judges, their cases are appealed to the Supreme Court. If Judge Alito becomes a member of the Supreme Court, he'll have to rule on appeals from their decisions.

And so I think, rather than create a difficulty for them or for Judge Alito if he is confirmed, I think I will not avail myself of a chance to ask questions of this unprecedented panel.

SPECTER: Thank you very much, Senator Leahy.

Senator Kyl?

KYL: Thank you, Mr. Chairman.

I just had a question -- and I think, Judge Lewis, it was a comment that you made that raised this question in my mind.

There was a point made about the circulation of opinions among all of the judges on the court.

When a three-judge panel has tentatively made a decision in a case and circulates an opinion, is that opinion circulated among all the judges? And then do all of the judges have an opportunity to comment on that in some way?

(UNKNOWN): Yes.

KYL: Any of you -- Judge Lewis?

LEWIS: Yes, that is correct. And that is why the opinion is the opinion of the entire court, in the end, when it is released.

I should let Chief Judge Scirica address the current practice. I've been off the court for some time.

SCIRICA: Thank you.

LEWIS: But I assume it's done the same way. Is it not, sir?

KYL: This is interesting to me because I practiced before the 9th Circuit Court of Appeals and that same opportunity, I think, is not as available.

LEWIS: Yes.

ALDISERT: That, Senator -- that was invented by Judge Biggs in the late 1930s.

KYL: In the 3rd Circuit, sir?

ALDISERT: Yes.

SCIRICA: We circulate all of our precedential opinions to the entire court before they are ever published; that is, before the litigants or before the public sees them.

We do not do that with a category that we call not precedential opinions. They are handled by the panel themselves unless there is a dissent, in which case we circulate them as well.

Now, of course, when a litigant loses a case, that litigant has the opportunity to file a petition for rehearing. And that goes to the entire court, because the litigant usually asks both for panel rehearing before the original panel and also before the entire court.

And so for precedential opinions it gets sent to the court on two different occasion -- one before it is ever published and one after it is published.

KYL: I'm curious, what happens if there's a strong opinion by one of the judges on the court who did not sit on the original three- judge panel?

SCIRICA: Well, that's...

KYL: Different from the conclusion.

SCIRICA: Any judge on our court, on the initial circulation or even on the circulation for the petition for a rehearing may write to the entire court or may write to the opinion writer or may write to the panel expressing his or her disagreement.

It's one of the wonderful things about an appellate court, because we view the panel decisions that are precedential as opinions of the court, more than just the opinion of the panel or the opinion of the author of the case.

And there's often this wonderful dialogue that goes back and forth between the opinion writer or the panel and the judge who may have concerns about what is being decided. And it can sometimes can go on for days, sometimes the panel will, or the author, will say, "I want to think about this. I want to have the opportunity to revisit this issue."

SCIRICA: And sometimes it takes weeks before the panel comes back with a new opinion, often a revised opinion. This is part of the collegial aspect of the court.

KYL: This should be very reassuring to the litigants...

BARRY: And sometimes we'll go en banc before the opinion ever issues.

(UNKNOWN): Often the panel will change its mind, say, "We got it wrong."

KYL: It's very interesting, and I appreciated the opportunity to at least mention that. And I, too, want to thank all of you for your willingness to be here, to take time out, but most especially to speak on behalf of a colleague who I know you all admire a great deal. And I thank you for that very much.

SPECTER: Thank you, Senator Kyl.

Senator Durbin?

DURBIN: Mr. Chairman, I thank the members of the panel for their public service. I have no questions. And I would like to associate myself with the remarks of Senator Leahy.

SPECTER: Thank you very much, Senator Durbin.

Senator DeWine?

DEWINE: I have no questions, Mr. Chairman.

SPECTER: Senator Sessions?

SESSIONS: I would just like to ask the panel, I see one of the articles that stirred up some of this discussion about not being evenhanded judge actually only considered 221 cases in the judge's first six years on the bench.

I'm sure you as professionals who have been there, your judgment is better about his style and fairness than some abstract numbers would be. But I will just ask you, Judge Scirica, maybe, and if others would like to comment please do so, on civil rights cases that I've seen here, the civil rights cases Judge Alito wrote, the panel agreed with him 90 percent of the time and his opinions were unanimous 90 percent of the time. That doesn't sound like an extreme position to me.

What would you say about that?

SCIRICA: Well, I would agree. That would comport with my recollection of these cases.

SESSIONS: And I notice the respect Judge Lewis had for Judge Alito. It said, when he sat on panels where both the other judges were Democratic appointees, the decision was unanimous in 100 percent of the cases, or whatever those statistics show.

And then, with regard to the immigration cases, it says that his appeals, the average judge in the country, in the average cases, the immigrant wins asylum claims in the court of appeals in slightly over 11 percent of the time. But in Judge Alito's record he ruled for the immigrant seeking asylum in fully 18 percent of the cases.

Do those numbers, Judge Scirica, strike you as sort of what the -- well, the 11 percent, is that about what you would expect?

SCIRICA: Yes, sir.

SESSIONS: And in the cases that he wrote opinions on, the average court of appeals judge ruled for the immigrants 8 percent; he ruled for the immigrants 19 percent.

Well, I don't know that those numbers mean a whole lot, but I do think they tend to rebut some of the numbers that we've seen floating around, because your opinion of him does not reflect a person who shows bias.

In the Rybar case, Judge Gibbons, you're no longer on the bench, you could be honest with us right here in Congress. If the Congress had put in an interstate commerce nexus in the statute they passed about machine guns, like they did in ITSMV, Interstate Transportation of Stolen Motor Vehicle, or interstate transportation of stolen property, kidnapping or theft from interstate shipment, it would have been upheld, wouldn't it?

GIBBONS: That's what he said in his dissenting opinion.

SESSIONS: So the truth is that Congress missed the boat.

GIBBONS: Yes.

(LAUGHTER)

(CROSSTALK)

SESSIONS: And we'd be fix it soon as we passed the law correctly, I would submit.

SESSIONS: And I would just ask this, Judge Aldisert. I'm serious about this question, but I think Judge Roberts agreed with me that if an individual within the heart of Pennsylvania or New Jersey picks up a rock and kills another person, that is not a federal crime. Is that correct? Unless there's something added, without an interstate nexus of some kind, or that would be prosecuted solely by the state court.

(UNKNOWN): Unless he stole the rock out of an interstate shipment.

(LAUGHTER)

LEWIS: It could be a violation of federal civil rights, also.

(UNKNOWN): Or if the person he assaulted was a federal official.

SESSIONS: Right.

(UNKNOWN): A president or a vice president or a senator.

(LAUGHTER)

SESSIONS: Well, Judge Lewis said it could be a civil rights violation if he was in a way to deny someone of civil rights or if he was a federal official. But classically, the federal criminal law has been tied to interstate commerce nexus, hasn't it, Judge Aldisert?

(UNKNOWN): Civil rights.

SESSIONS: Judge Lewis?

LEWIS: That's right.

SESSIONS: Thank you.

SPECTER: Thank you, Senator Sessions.

Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

I feel like I need to say "may it please the court."

Thank you all for being here. It's very important, I believe, to have testimony from people that know this nominee.

We've heard a lot of wild and crazy, from my perspective, accusations that have been unsubstantiated, from people who don't know this nominee as well as you do.

I want to just try to eliminate one concern that's been expressed. And I've heard a hint of criticism about these judges appearing as witnesses in this hearing, supposing that perhaps there will be some conflict of interest if your decisions would be appealed to the United States Supreme Court and Justice Alito had to sit on it.

I haven't noticed any lack of a willingness to disagree with him while you were colleagues on the 3rd Circuit. That seems highly unlikely. And for the suggestion that this is somehow unprecedented, to have judges, former and current sitting judges, testify, Mr. Chairman, I have a list of examples where sitting members of the federal judiciary have testified during the confirmation proceedings of another federal judge. And I would ask that that be made a part of the record.

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

CORNYN: Canon 4B of the code of conduct for U.S. judges provides, "A judge may appear at a public hearing before a legislative body..."

There's some ellipses there.

"... on matters concerning the law, the legal system and the administration of justice to the extent it would generally be perceived that a judge's judicial experience provides special expertise in the area."

And I regret, your honors, that you somehow get sucked in to the contentiousness and some of the unfairness that occurs sometimes -- the innuendo that sometimes arises when you're a witness in a contested proceeding.

And, as you can tell, these hearings have become -- and the confirmation process -- an adversarial process.

The unfortunate point, as our chairman has noted before, it's not controlled by the rules of evidence. It could be based on speculation, hearsay and rumor. Whereas we know, in a court of law, that wouldn't be admissible.

And our procedures are a lot more flexible and open-ended. And, certainly, there's no standard of review that applies to judges in your distinguished and exalted position as members of the federal judiciary.

Judge Aldisert, I want to say that I guess I'm the only other panel member, member of this committee, who's probably read one of your books. But I'm certainly familiar with your great work and your writings.

And, of course, as has already been noticed, Judge Becker is very familiar to the Judiciary Committee.

And I want to ask both Judge Gibbons, who is no longer on the bench, and Judge Becker -- both of you have talked about the transforming experience of crossing over from being an ordinary lawyer, including a U.S. attorney, and then putting on the black robe, after you have put your hand on the Bible and have taken an oath to uphold the laws and Constitution of the United States, so help me God, and what a different perspective that provides -- a different obligation, different responsibilities.

CORNYN: And I think Judge Trump Barry noticed that transformation in this nominee when he crossed over from being a practicing lawyer to becoming a member of the judiciary.

And, Judge Becker, I wonder if you just might comment -- we just have a couple of seconds here. But this morning, Senator Biden was asking questions about this nominee's views on Roe v. Wade and perhaps is reflected in an application he made for a job in 1985. And it seemed to raise the question of: Well, if that's your view today, wouldn't you just feel free to go in and vote to overrule it?

And it struck me because of the difference in a judge's role from that of an advocate. He was applying for a job as part of the Reagan administration.

But on one hand he was talking about, well, maybe you have the power, but what Judge Alito seemed to talk about most was legitimacy of the judicial making process and the judgments rendered by courts and why that's such an integral part of the role judges play in our system of government.

Would you please respond to that?

BECKER: Well, I agree with Judge Alito and I think, Senator Cornyn, that you have eloquently described the transforming experience.

I know that it is within your life's experience when you took the oath of office to be the justice of the Texas Supreme Court, it just transforms you. You become a different person and your obligation is to the rule of law. And you have no interest in a case -- and if I could just segway this into your original point, which bears upon what Senator Leahy had to say in terms of whether or not a justice of the Supreme Court would have to recuse on an opinion I wrote, on one of our cases, I have no interest in the case.

Recusal is a function of whether or not the party or the lawyer has an interest in the case.

BECKER: But I don't have any interest in any case. And (inaudible) none of us have any interest in any case. And this is consistent with what Judge Alito said and your description of that transforming experience.

CORNYN: Mr. Chairman, I would just say, Judge Gibbons and Judge Lewis are no longer members of the bench; I'm sure have experienced the liberating transformation once you cross back over that rubicon, perhaps, as well.

Thank you very much.

SPECTER: Thank you very much, Senator Cornyn.

Senator Coburn?

COBURN: Thank you very much. And I appreciate so much you all taking the time to come here.

As a physician, I'm starting to learn some of the lingo of the legal profession. It's hard, but I'm going to talk in doctor's terms so the rest of them can't understand.

But, Judge Barry, I wanted to ask you -- and also Judge Lewis -- do you think that there is any merit whatsoever to the allegations that were made that Judge Alito is hostile to the rights of women or minorities? And have you seen that? In the 30 years, have you seen any indication whatsoever, either in his opinions, his personal life, in his interpersonal relations with you, or you, Judge Lewis, that there is any indication that there's that type of bias in this man?

BARRY: I have never seen it. And if I had seen it, I would not be here today.

COBURN: Judge Lewis?

LEWIS: I've already said that if I sensed that Sam Alito, during the time that I served with him or since then, was hostile to civil rights or would be hostile to civil rights as a justice of the United States Supreme Court, I absolutely would not be here today.

I am not interested in saying anything on behalf of someone that I believe would hold views like that or would proceed in that way.

I am basing what I am saying on my years of experience in conference with him, discussing cases. We had different views and different approaches, but never did it seem to me that he held any hostility to civil rights, which is an area that I hold very dear and is very important to me -- and remain committed to furthering in this country.

COBURN: Thank you.

Well, Mr. Chairman, I don't think that you can have a better recommendation than the people that you worked with and the people that you spend the greatest amount of time with and the people who see you under stress, who make evaluations.

And the greatest tragedy, I think, of this hearing is the allegations that have been made that aren't substantiated based on fact, but are substantiated on the basis of the fact that you want to try to destroy somebody's character and undermine their character to make them look a certain way in which they're not.

COBURN: And I appreciate your all's very straightforward answer, and I thank you coming.

And I yield back my time.

SPECTER: Thank you very much, Senator Coburn.

The question has been raised as to precedents. And Senator Cornyn has addressed that. And it's worth mentioning just a few, that former Chief Justice Burger testified for Judge Bork, District Judge Craig testified for Chief Justice Rehnquist, District Judge Tanner testified for Justice Thomas. The canons, specifically 4B, of the conduct of U.S. judges makes a specific allowance for this kind of a situation. Quote, "A judicial experience provides special expertise to the area."

And it is certainly obvious that the insights which you judges have to Judge Alito's background is unique. When you talk about what goes on in those conferences, you're the only ones who are there. And you have much more insights as to the opinions he has written that you have worked with him on.

We have 30 witnesses who are coming in, and that has been a traditional part of the process, but I know of no situation where witnesses have more to say which is relevant and weighty. Perhaps weight is the best evidentiary characterization of what you've had to say.

A lot of things can be relevant. Especially where you have the issue which has been before this committee as to Judge Alito's agenda or Judge Alito's approach or Judge Alito's personal views dominating his judicial determinations, this panel is right on the head.

SPECTER: And it has been an unusual panel, but that's really not a strike against the practice. It may be a precedent for the future and it, I think, will be a good precedent.

But whenever you try something new, there are differing voices, but I think it's an extraordinary contribution which this panel has made to this process.

So, Judge Becker, former Chief Judge Becker, Chief Judge Scirica, Judge Barry, Judge Aldisert, Judge Gibbons, Judge Lewis and Judge Garth from Phoenix, Arizona -- you lucky fellow -- we thank you all very much for coming in.

We're going to take only a 10-minute break now. I didn't have a chance to discuss it with Senator Leahy.

But we do not have the situation where Judge Alito is on the stand and he needs a little longer break. We'll have fresh witnesses and tired senators.

Ten minutes. We'll resume at 5:20.

(RECESS)

SPECTER: We'll now proceed with panel three.

And our first witness is Edna Axelrod. She's known Judge Alito for nearly 20 years, having worked with him when he was a United States attorney. She is a sole practitioner in South Orange, New Jersey. She served in the U.S. Attorney's Office from 1980 to '83, and '85 to '94, during Judge Alito's tenure as U.S. attorney. She had important positions as chief of the Appeals Division. She is a graduate of Duke's law school with a master's degree in law from Temple.

And we welcome you here, Ms. Axelrod.

We're going to have to be mindful of the time, because we have four panels and about 23 witnesses. (inaudible) Well, I would like to, but it's subject to negotiations with you, Senator Leahy.

LEAHY: Mr. Chairman, could I just ask you to consider (ph) the number of letters I have of usual things to put in the record.

SPECTER: Sure, without objection, they will be made a part of the record. Thank you, Ms. Axelrod for being here, and we're starting the clock for five minutes.

AXELROD: Thank you, Mr. Chairman and members of the committee. I appreciate the opportunity to appear here today to testify in support of the nomination of Samuel Alito.

I am a former chief of the Appeals Division of the United States Attorney's Office of the District of New Jersey, and for the past 11 years I have practiced as a federal criminal defense attorney in northern New Jersey.

At this point in these proceedings, I am sure there's little need to provide further comment concerning Judge Alito's legal acumen and outstanding accomplishments. However, I hope that the committee may find it useful to hear the insights and observations of someone who worked closely with Judge Alito during the period of time that he served as United States Attorney for the district of New Jersey.

I first met Judge Alito when I joined the United States Attorney's Office in 1980. At that time, he was laboring in the appeals division, and I was in the frauds division. As a rookie, I quickly learned that if I ran into a particularly thorny legal or procedural problem, the most knowledgeable and approachable person to consult was Sam Alito. Although he soon left for the Solicitor General's Office, he returned in 1987 as United States Attorney.

Shortly after his arrival, he began selecting the supervisory staff who would assist him during his tenure. And after reviewing my work in the appeals division, he asked me to serve as chief of appeals. This was particularly meaningful to me for two reasons. First, Judge Alito's estimable as an appellate and Supreme Court advocate had preceded him, and the importance that he placed on the appellate process was well known. Second, in 1987, it was still unusual for women to be elevated to positions of authority in either government or private offices, and I was gratified to see that Judge Alito's appointments were based on merit, not gender.

As a member of his supervisory staff, I met frequently with Judge Alito, sometimes alone, but usually with other division chiefs, to discuss ongoing, significant criminal prosecutions, appeals and investigative initiatives. During these meetings, he openly invited the thoughts and input of everyone, asking subtle questions to guide the discussion to areas where he had concerns. Although it was clear that in the end, he would make up is own mind, it was equally clear that there was no danger in advocating a position that he might ultimately reject.

His goal was to get as much information as possible, so his decisions could be firmly grounded in a comprehensive understanding of the law and the facts. Consistent with this approach, the stewardship of the office was grounded in quiet confidence. His decisions and actions were measured and thoughtful, never impulsive or purely reactive. Although it is possible for U.S. Attorneys to use their offices as showcases for themselves in their further aspirations, that is, to enjoy and employ the limelight, this was never Judge Alito's way. It was always the work, not the image, that came first.

It is a well-known motto of federal prosecutors, one most often heard on those occasions when they suffer defeat, that the United States wins when justice is done. Under the leadership of Samuel Alito, and I should say Judge Alito, that was more than a catch phrase. It was office policy. Judge Alito expected the assistants in his office to work hard to achieve and preserve convictions where the evidence supported guilt. But he also demanded that they remain ever- mindful of the very great power that they wielded as federal prosecutors and the need to use that power with appropriate discretion.

Based on my experience in that office, I am confident that Judge Alito would approach the power of being on the Supreme Court with an equal, if not heightened, sense of responsibility and care. As I noted earlier, I am presently a criminal defense attorney, and I am also a lifelong Democrat. As such, I might be expected to have concerns about Judge Alito's nomination. However, in supporting his nomination, I am actually representative of a large number of former colleagues of Judge Alito, of all political stripes, who support his nomination because they know firsthand what kind of man he is.

Those of us who know him know that he is not an ideologue, and that he does not use his position to pursue personal agendas. We have seen his profound respect for the law and precedent and his unfailing respect for all participants in the criminal justice system: prosecutor, defense counsel and defendant alike. We know him to be a man of unquestionable ability and integrity, one who approaches each case in an open-minded way, seeking to apply the law fairly.

The appointment of Sandra Day O'Connor to the Supreme Court in 1981 was an event of special importance to me. At the time, I thought that the most significant fact was that she was a woman, the first woman, on the court. And of course that was truly groundbreaking. But in time, I have come to appreciate that, more than her gender, it is her extraordinary mixture of character and intellect that has most profited our country. As a person of both great character and great intellect, Samuel Alito would be a worthy successor to Justice O'Connor, and I hope that he will be speedily confirmed. Thank you very much.

SPECTER: Thank you, Ms. Axelrod.

Our next witness is Professor Michael Gerhardt, distinguished professor of constitutional law at North Carolina School of Law. Professor Gerhardt is the author of a number of books on constitutional law. He has served as special consultant to the White House on the nomination of Justice Stephen Breyer. He received his bachelor's degree from Yale in 1978, masters from the London School of Economics and law degree from the University of Chicago in 1982. Thank you for joining us, Professor Gerhardt, and the floor is yours for five minutes.

GERHARDT: Thank you very much, Mr. Chairman, Senator Leahy and other distinguished members of the committee. For almost 20 years, I have had the honor of teaching constitutional law. For almost as long, I have studied the process of Supreme Court selection in some detail and have had the privilege and opportunity to write about it at some length.

And I come to you today with the hope that whatever expertise I have developed in that process may be of some use to you. In this statement, I want to just make three brief observations as extensions of my written statement, which you already have.

First, the constitution allows every senator to make a decision about a Supreme Court nominee based on whatever factors he or she considers to be pertinent, including judicial philosophy. The constitution, I believe, does not require absolute deference to the president when it comes to making Supreme Court nominations, nor, for that matter, does it require hostility. The constitution allows you, I think, to do what you see fit. It allows you to engage in a robust dialogue about the qualifications for service on the Supreme Court.

With that in mind, I just want to give you one brief example of what I'm talking about and what the constitution allows, just to illustrate the robustness of the process -- that we shouldn't be ashamed of it, but, in fact, should be prepared to embrace. Much has been said about the fact that Judge Alito has had the most judicial experience of any nomination made to the Supreme Court in almost 70 years, but nobody mentions who that other nominee was.

That other nominee that proceeded him was Benjamin Cardozo. And Cardozo, as we probably all know, was not President Hoover's first choice. He wasn't even President Hoover's second choice. In fact, he was the choice of the Senate. And when senators came to the president and said, in effect -- in fact, members of this committee came to the president and said, in effect, that "This is the person we want, here are the criteria we think are important," President Hoover was not obliged in any way, shape or form to accept that, but he did.

And I simply make that observation to underscore the fact that there is an opportunity for exchange between the presidency and the Senate with respect to a Supreme Court nomination. And we should be prepared and as open as possible in talking about the qualifications for service. And again, if each of you believes to some extent that judicial philosophy is appropriate, it's important to say so and to act accordingly.

Secondly, you know better than I the important function of this committee as a gatekeeper. You are in the position, at least the initial position, of being able to filter out the views and personality you don't want to see reflected on the Supreme Court. Or you're in the position of determining what views and personality you do want to have on the Supreme Court.

The Supreme Court is largely a function of choices made by the president and the Senate. The Senate and the president help to make the Supreme Court what it is. And I think that that dual partnership is something we ought to keep in mind, because in making determinations and judgments about a Supreme Court nomination, the Senate has an extremely important role to play.

And the more vigorously you perform that role, I think, the more credit it does to you, and the more we can be assured that whatever choice gets made about the people that serve on the court, that we can have confidence that they can be there, that they are worthy of the trust you've given them to exercise the awesome power of judicial review over the constitutionality of not just your actions, but the actions of other branches.

Third, I must confess, and I regret there's an error in my written statement, I discuss in the written statement the importance of assessing whether or not Judge Alito was a bottom-up or top-down judge. A bottom-up judge is somebody who decides cases incrementally, one at a time, and has a great deal of respect for precedent. A top- down judge is somebody that tends to infer principles directly from the constitution and then impose them from the top down.

And in the course of trying to figure out whether Judge Alito is bottom-up or top-down, I made a mistake in not identifying Justice Harlan as one of the justices he most admires. I just wanted to correct that error. The reverence for Justice Harlan is almost universal, and he's certainly one of the justices I most admire. But the admiration for Justice Harlan does raise a question.

And the question is this: "How, if at all, does Judge Alito's reverence for Justice Harlan make him the same kind of judge or a different kind of judge than other justices who also have admired Justice Harlan, including Justice Kennedy and Justice Souter. Is he the same kind of judge they are, or is he a different kind of judge?"

Reverence for Justice Harlan is obviously pertinent, it's important, but it may only tell us so much, and I think it's useful and very important for you not to shy away from asking the tough questions. You have asked the tough questions. I think it does you credit. I think that's what this process is all about, and I am privileged to be a part of it.

Thank you.

SPECTER: Thank you very much, Professor Gerhardt.

Our next witness is Commissioner Peter Kirsanow, with the U.S. Commission on Civil Rights, partner with the law firm of Benesch, Friedlander. He's also on the board of directors of the Center for New Black Leadership, on the advisory board of the National Center for Public Policy Research. His bachelor degree's from Cornell, a law degree from Cleveland State with honors. Commissioner Kirsanow has reviewed Judge Alito's civil rights record and will testify as to his conclusions in that area.

KIRSANOW: Thank you, Mr. Chairman, Senator Leahy, members of the committee.

The U.S. Commission on Civil Rights was established pursuant to the 1957 Civil Rights Act to, among other things, act as a national clearinghouse for matters pertaining to discrimination or denials of equal protection.

And furtherance of clearinghouse responsibility, and with the help of my assistant, I've reviewed the civil rights cases in which Judge Alito has participated in the Third Circuit as well as his record as an advocate for the Supreme Court in the context of prevailing civil rights jurisprudence. Our examination reveals that Judge Alito's approach to civil rights is consistent with the generally accepted textual interpretation of the relevant constitutional and statutory provisions as well as governing precedent.

His civil rights opinions evince appreciable degrees of judicial precision, modesty, restraint and discipline. In short, his civil rights record is exemplary: legally sound, intellectually honest and with an appreciation and understanding for the historical bases under- girding our civil rights laws. Our examination also reveals that several aspects of Judge Alito's civil rights record have been mischaracterized, some of the criticisms misplaced. Just three brief examples:

First, some have contended that Judge Alito has a regressive or anti-civil-rights view of affirmative action, one that's to the right of Justice O'Connor. This contention is based on three affirmative- action cases in which Judge Alito participated (inaudible) while he was with the Solicitor-General's Office in the Reagan administration. These three cases are Wygant v. Jackson Board of Education, Sheet Metal Workers v. EEOC, and Firefighters v. the City of Cleveland, all of which involved expansive racial preferences as remedies for discrimination.

Notwithstanding the fact that positions espoused as an advocate are poor proxies for interpretive doctrine, there is nothing in the records to stress that Judge Alito would somehow restrict remedies currently available under United Steelworkers v. Weber or Johnson v. Transportation Agency any more than Justice O'Connor would. Judge Alito essentially argued that rigid quotas are unlawful and opposition to quotas and expansive racial preferences do not evince a hostility to affirmative action, let alone civil rights in general.

KIRSANOW: Second, some critics have said that Judge Alito's decision or dissent in Bray v. Marriott is evidence of his supposed tendency to impose quote "almost impossible evidentiary burdens on Title VII plaintiffs." But a review of Bray shows that Judge Alito's dissent actually steadfastly adheres to Third-Circuit precedent and carefully applies the law to the facts, whereas majority opinion seems to dilute the commonplace standard of proof in a Title VII case by reducing or converting the burden of production on the part of the defendant into a burden of proof.

The third contention, unsupported by our examination, is that Judge Alito's civil rights record is out of the mainstream. Judge Alito participated in 121 Third Circuit panels that decided cases that may be termed in the traditional sense civil rights cases. Now, one would expect that if someone were out of the mainstream that by definition, he would rarely agree with his colleagues on the Third Circuit and moreover, you'd expect that he would almost never agree with his Democratic colleagues and would vote overwhelmingly with his Republican colleagues.

But an examination of Judge Alito's extensive record on the Third Circuit shows that his co-panelists on civil rights cases actually agreed with his written opinions and votes 94 percent of the time, and that's whether or not these panelists were Republican or Democrat, and in fact, produced unanimous decisions 90 percent of the time. Moreover, judges appointed by Democratic presidents actually agreed with Judge Alito's civil rights positions at a slightly higher rate than his Republican colleagues, by a margin of 96 percent to 92 percent.

In fact, judges appointed by Democratic presidents Johnson, Carter and Clinton agreed with Judge Alito's civil rights position at the same or a slightly higher rate than judges appointed by President Reagan or either President Bush. Obviously, in order to thoroughly assess Judge Alito's civil rights cases, you have to look at the actual facts and applicable law in each case. But it cannot be credibly stated that Judge Alito is hostile to civil rights, out of the mainstream or extreme, without leveling the same charges against every other judge on the court, whether Republican or Democrat.

I respectfully submit that Judge Alito's 24-year record on matters pertaining to civil rights demonstrates a firm and unwavering commitment to equal protection under the law. And he has a comprehensive and precise understanding of our civil rights laws that will make him an outstanding addition to the Supreme Court.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Commissioner Kirsanow.

Our next witness is Professor Issacharoff, professor of constitutional law at New York University's school of law and author of several books focusing on voting rights and civil procedure. He had taught at the Texas law school. Bachelor's degree from Binghamton University in 1973 and law degree from Yale in 1983.

Thank you for joining us, Professor, and we look forward to your testimony.

ISSACHAROFF: Thank you, Mr. Chairman, Senator Leahy and members of the committee.

I want to direct my remarks to the question of reapportionment cases and the significance of the court's role in overseeing the basic fairness and integrity of our political process. And I raise this issue because reapportionment cases stand for something beyond simply the doctrine of one person, one vote.

They also stand for the role that the court has to play in making sure that the political process doesn't turn in on itself and doesn't close out those who are not able to effectively marshal their votes, their power, their support under the rules that govern the political process. It's significant because no justice of the Supreme Court over the past 35 years has hesitated to assume the responsibilities so well articulated by the Supreme Court in the famous Carolene Products footnote.

Justice Stone, in 1938, on behalf of the Court, recognized a special need for exacting judicial review in the case of laws, and these were his words, "that restrict those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." The reapportionment cases of the 1960s, the cases that appeared to have so deeply concerned Judge Alito as a young man, were the realization of the Carolene Products insights.

In the 40 years that have passed since the reapportionment cases, the Supreme Court has bravely entered into the political thicket. Sometimes the court's role is simply what appears to be routine, such as access to the ballot and the polling place. Sometimes it is truly extraordinary, as with Bush v. Gore. The result of these interventions, although obviously not without controversy, is a political system that is more open and more participatory than at any time in our history.

It is difficult to imagine in this day and age any serious objection to the rights identified in these cases. In Reynolds v. Sims, for example, Chief Justice Warren wrote that "Full and effective participation by all citizens in state government requires that each citizen have an equally effective voice in the election of members of his state legislature." But it is also well to recall the facts presented in these cases.

The willful failure to reapportion had transformed American legislative districts into grossly unrepresentative institutions in which voters of the growing cities and suburbs found themselves unable to participate effectively in a political process controlled by rural minorities. In Alabama, the site of Reynolds v. Sims, one county had 41 times as many representatives per person as another. That pattern was repeated across the country. In California, to pick just one, Los Angeles County had one state senator, as did another county with 1/100 of its population.

While the basic principle of "one person, one vote" may now be so deeply embedded in our culture as to seemingly defy any controversy, its implementation was another matter. And I think that's what's significant about these cases. Those whose votes were miscounted to the point of irrelevance were repeatedly frustrated by entrenched political power. The intervention of the Supreme Court was indispensable. Indeed, it was the single most successful remedial effort by the Supreme Court in our history. It changed and made fundamentally more democratic the legislative process, and it made the legislative process one that was deserving of judicial deference.

When I teach these cases today to students, however, and even when I was a law student in the early 1980s, the idea of "one person, one vote" appears so elemental, so in keeping with the most rudimentary sense of democracy and legitimacy, that students cannot even fathom that a democratic society could be organized on any other basis.

I do not know how a young college student in 1970 might have reacted, particularly when presented with the formidable writings of Alexander Bickel. Bickel captured well the tension between a commitment to popular sovereignty and the overriding commands of the constitution. And it is well to remember that, although we turn our attention here to the court, it is obviously the Congress that is a significant and major institution expanding our democratic horizons, as with the Voting Rights Act of 1965.

Nonetheless, I would suggest the fact that the reapportionment cases should appear on a job application in the 1980s as at least a curiosity. Perhaps it was the recounting of an intellectual path, but perhaps an indication of a continuing view that courts have no business in checking the abuses of political power. If it is the latter, it should be deeply troubling to this committee and to the Senate. For the issue of the day is not the intellectual trajectory of a thoughtful college student, but the implications for the vital role the Supreme Court plays in our democratic life.

Critical issues in the organization of our democracy remain unsettled and are going to appear as they do before the court. Our system of redistricting has run amok, the competitive lifeblood drained by perpetuating insiders. This may prove to be the same sort of structural obstacle to democratic reform as had to be dislodged by the reapportionment decisions of 40 years ago.

The answer may not be simple, but the role of the court is absolutely critical. So, too, with campaign finance, so, too with even the mechanics of our electoral system. In all of these areas, there is reason to doubt that incumbent officials are able to fix the political process that elected them. As Justice Scalia has wisely cautioned, "the first instinct of power is the retention of power."

While not without controversy or difficulty, our collective experience over the past 40 years confirms that the nation is much the better for the robust attention of the court to the health of our democracy. I would suggest to this committee and to the Senate that before confirming any nominee to the Supreme Court, the Senate of the United States should be able to conclude with confidence that, regardless how a nominee may vote on any given case, he or she will assume the full responsibility of protecting the integrity of our democratic processes. Thank you, Mr. Chairman.

SPECTER: Thank you, Professor.

Our next witness is Mr. Carter Phillips, one of the premier appellate lawyers in the country. He has handled some 47 cases before the Supreme Court of the United States, some of those as assistant to former Solicitor General Rex Lee. He's a graduate of Northwestern School of Law, a clerk for Chief Justice Warren Berger and rated as one of the 100 best lawyers in America by the National Law Journal.

At your hourly rate, Mr. Phillips, thank you for joining us, and how much does five minutes cost?

PHILLIPS: Well, I won't answer that question, but I will tell you that the law firm has taken a hit today.

Thank you, Mr. Chairman and members of the committee. Often times, it strikes me that baseball metaphors tend to be used at these hearings, but it at least impresses me that perhaps a tennis metaphor is more appropriate at this point.

Based on the testimony of Judge Alito in the last two-and-a-half days and the extraordinarily eloquent testimony of the Third Circuit judges in the last hour or so, it would strike me that we ought to be at the point of "game, set and match." Because it seems to me that there can be no serious question about either the qualifications on ability or ethics or any other standard that this committee would want to use in reviewing the qualifications of Judge Alito to become a Supreme Court Justice.

You have my written testimony. I'm not inclined to repeat it at this point. One thing I have learned as an appellate advocate is if you think you're ahead on points, you do well to sit down and shut up. So all I'm going to do is simply recount for you my own experiences with Judge Alito when we were in the Solicitor General's Office, not because I think they add all that much, but I do think they debunk the notion that somehow Judge Alito has long been an ideologue of any sort.

The judge and I met when we both interviewed with Judge McCree, who was President Carter's solicitor general. We were interviewing for a job as an assistant to the solicitor general. We had applied to that position prior to the election. Neither of us knew which direction that election was going to come out. We were seeking that position not because we had any kind of an agenda to fill, but solely because each of us hoped to get a very prestigious position.

Now, as it happened in that first meeting, Judge Alito and I happened to get seated together by ourselves, when all of the other members of the Solicitor General's Office went off to another table. And we had what I think is fairly described as at least a little bit of an uncomfortable conversation, because we assumed we were competing for exactly the same job, and had a very interesting exchange of views about our backgrounds and our experiences, he being an existing assistant U.S. attorney with an extraordinary amount of experience as an appellate lawyer, I being a former law clerk and, at that time, an assistant professor of law.

But we built a great friendship based on that conversation and the fact that we both ended up in the Solicitor General's Office. But what struck me is that whether or not the solicitor general had been Wade McCree or whether as it turned out the solicitor general was Rex Lee, our service to the United States would have been precisely the same. The only other thing I would say in that regard is that during the three-plus years that I served with Judge Alito in that office, I had an opportunity to talk with him almost every day.

And in that capacity, I learned an enormous amount from him about both his compassion and his intellect and his open-mindedness and his enthusiasm to assist all of the lawyers in that office. He was a great lawyer, he was a tremendous oral advocate. He went on, obviously, to a very distinguished career. While I have my own opinions about what he's accomplished on the Third Circuit, it seems to me I cannot add to the eloquence of what's already been said by the judges of that court. I would simply urge this committee to confirm this justice.

SPECTER: Thank you very much, Mr. Phillips.

Professor Goodwin Liu is an expert in constitutional law, civil rights and the Supreme Court at the University of California Boalt Hall. He is a graduate of Stanford with a bachelor's degree, and masters from Oxford, and a law degree from Yale law school in 1998. He served as a law clerk for Supreme Court Justice Ruth Bader Ginsburg during the October 2000 term.

Thank you for coming in today, Professor Liu, and we look forward to your testimony.

LIU: Thank you, Mr. Chairman. I'm very honored to be here today.

I agree with all of my fellow panelists that Samuel Alito has a very talented legal mind. I have read over 50 of his opinions. They are very sharp, analytical, intellectually honest. But if intellect alone were enough, then these hearings would be unnecessary.

We care about the judicial philosophy of the nominee, and so to prepare for these hearings, I studied Judge Alito's opinions on individual rights versus government power. His record is enormous, and, Mr. Chairman, as you've said, cherry-picking cases is not very informative. Neither is it very informative to look at the entire run of all cases. What is informative, I think, is a look at the closest, most contested cases, cases where judges on a panel disagreed.

These are the cases most like the ones at the Supreme Court, the law is less clear, and judges have to show their stripes.

LIU: I don't think Judge Alito is an ideologue, but I think it's important to see what the record says. So I looked at several areas where government wields great power -- Immigration, the Fourth Amendment, criminal prosecution. In these areas Judge Alito sat on 52 panels that divided between the individual and the government. He voted for the individual only four times; three times joining an embanked majority, one time writing in dissent. In the other 48 cases he sided with the government. This includes all 13 cases on the Fourth Amendment, all eight cases involving erroneous jury instructions, all four cases involving the death penalty. On 13 occasions his vote for the government was a dissent from an opinion written or joined by a Republican colleague.

Most of the counter-examples cited in these hearings are not terribly illuminating. The constitutional violations were clear, the holdings were unanimous.

In the contested cases Judge Alito agreed with the government over 90 percent of the time, far more often than other appellate judges in similar cases, even those appointed by Republican presidents.

Now these figures are not dispositive. Every case is different and I'm sure Judge Alito got it right many times. But let me give three examples that show his instinct, I think, to defer to government power.

The first is a memo he wrote in 1984 as assistant to the solicitor general, analyzing a case where police saw a burglary suspect running across a backyard. The suspect reached a fence and an officer called out, police, halt! When the suspect tried to climb the fence, the officer shot him in the back of the head, killing him. The suspect, Edward Garner, was an eighth grader with a stolen purse and $10 on his body. He was not armed, and the officer did not think he was. The sole reason for his killing was to prevent his escape. Judge Alito's memo, speaking for no one but himself said, I think the shooting can be justified as reasonable within the meaning of the Fourth Amendment. In a remarkable passage he argued that using deadly force to stop a fleeing suspect rests on, and I quote, "the general principle that the state is justified in using whatever force is necessary to enforce its laws." In 1985 the Supreme Court rejected this view.

Second, in a 2004 case, the FBI installed a secret video camera in a suspect's hotel room. This was done without a warrant on the ground that the FBI turned on the camera only when the target allowed an undercover informant into the room. Judge Alito accepted this logic, even though the camera remained in the room day and night. The dissent called the surveillance Orwellian, limited only by the government's self-imposed restraint. Judge Alito seemed not to grasp that the concept of a warrant puts a judge between the citizen and the police precisely because our privacy is too precious to entrust to law enforcement alone. The NSA program of warrant-less eavesdropping is also being defended by assurances of executive self-restraint.

Finally, in 1997, there was a capital case where two Reagan appointees, both former prosecutors, found a misleading jury instruction unconstitutional. Judge Alito said the instruction was ambiguous and inadvisable, but adequate to convict the defendant of first-degree murder. He also said the court should not have heard the claim at all because defense lawyers did not argue it in prior appeals. But the state never raised this argument to the inmate's claim. Judge Alito raised it himself. The court chided him for nearly crossing the line between a judge and an advocate.

Civil liberties are sometimes seen as obstacles to law enforcement, but as Justice Frankfurter once said, the safeguards of liberty are often forced in cases involving not very nice people.

Mr. Chairman, liberty is not safe in an America where police can shoot and kill an unarmed boy to stop him from escaping with a stolen purse, where judges occasionally aid prosecutions by raising arguments that the state itself did not raise, and where the FBI can install a camera where you sleep on the promise that they won't turn it on unless they have to.

Mr. Chairman, this isn't the America we know and it isn't the America we aspire to be. Thank you, Mr. Chairman.

SPECTER: Thank you, Professor Liu.

Mr. Phillips, how would you evaluate the comments Professor Liu has made?

PHILLIPS: Well, with respect to the memorandum to the solicitor general, I think the notion that that's an individual opinion is not a very apt description, or at least what I viewed my role when I was an assistant to the solicitor general. What we did in that context and in this particular case, what he was doing was proposing that an amicus brief be filed on behalf of the United States in support of the state of Tennessee's position. And that process, you know, you -- I mean it may be that that sentence, and I don't know the context of it to understand it completely, but at that stage all he's doing is proposing that a brief be filed. It would be interesting to see what the ultimate brief said and whether or not it staked out a position quite as aggressive. But because that's part of the deliberative process that goes on, it's the same deliberative process that goes on with respect to the courts.

You know, I mean, I don't disagree that it makes sense to look at the most contentious cases as a legitimate way to examine that, but again, I don't think you can take -- and I do think this is the classic instance of cherry picking. I don't think you can take out one or two specific examples and say this somehow reflects anything about the body of work of a judge who has been on the bench for 15 years and in the face of the testimony we just heard from colleagues of his who spent literally more than decades with him and whose view is that he comes to each case with an open mind and thoroughly analyzes each one and performs this is in a bottom up, not a top down process.

SPECTER: Ms. Axlerod, you know Judge Alito extensively. How would you respond to Professor Liu's testimony?

AXELROD: Well, I had the same reaction concerning the first case that was mentioned when he was in a role as an advocate and was trying to come up with the different perspectives that you would bring to a case as an advocate for the government where your job is to figure out whether or not you're going to be supporting the result below. He was doing his job. And he was doing it appropriately.

And the other cases, I think you have to look at cases more closely than you can in basically a sound byte during a few-minute presentation. You have to look at the arguments that were made on both sides. You have to look at what the standard of review was. You need to see the facts. And I'm sure that the professor analyzed these cases ably, but I would not be persuaded simply by a short summary of them, that the reasoning was unfounded, even if I disagreed with it, which I very well might have without seeing more.

SPECTER: Commissioner Kirsanow, what is your evaluation of Judge Alito's record as it applies to civil rights issues with African Americans?

KIRSANOW: Well, it's -- as I indicated before, it is exemplary. We took a look at several hundred cases -- 121 specifically, and we drew a very broad net to encompass the broadest definition of civil rights possible. But also, we also drew a more narrow net for the more traditional civil rights cases.

The Title Seven cases, where it's more likely that you're going to find an African American plaintiff. And what we saw there is, and I'd refer to Ray v. Marriott. I think it's emblematic of the kind of approach Judge Alito has. He's very precise. Earlier on I heard testimony with respect to is he in favor of the little guy or the big guy? And I think I would hearken back to Judge Alito's opening, where he says that no one is either above the law or below the law.

I don't think that he's outcome driven. He's looking at upholding the law, whether or not that redounds to the benefit of the big guy or the little guy. And I think that's the classic example of someone who hues closely to the most profound protections of civil rights.

SPECTER: Professor Issacharoff, is there any doubt in your mind that Judge Alito will uphold the one man, one vote rule?

ISSACHAROFF: I don't think there's any doubt that he would uphold the one person, one vote as an abstract matter. I think that the broader question that's raised by his earlier comments -- and I heard nothing in these hearings that really addressed this -- is a deeper one about the role of the court in checking the abuses of incumbent power. And so while I don't in any way question that he has as much as all the rest of us have internalized the one person, one vote principle, my reservations would be on the willingness to use judicial power to check malfunctions in the political process.

SPECTER: Professor Gerhardt, you say that the Senate ought to be an active participant in the selection of Supreme Court justices. To what extent do you think that with a heavy campaign on the judicial issue, the president has latitude to pick judges as he wants to on the political spectrum, and how could the Senate really effectuate your idea?

GERHARDT: I think the idea I'm describing is the system that we've got. I don't mean to suggest a different kind of system, Senator. The president may do exactly as you suggest, pick somebody based on whatever criteria he likes.

I'm just suggesting that I think it's perfectly consistent with the structure and history of our constitution for Senators then to provide an independent judgment of his criteria and to assess them on whatever other criteria they think are appropriate.

SPECTER: Red light went on during your answer.

LEAHY: I think he was referring to myself, professor, good to see you again.

If I could, I just want to follow up on Professor Issacharoff -- and it was nice to meet your sun Lucas (ph) here earlier. That way his name is in the transcript.

ISSACHAROFF: Thank you, Senator.

LEAHY: You know, we've talked about the '85 job application of then Sam Alito for a job in Ed Meese's Justice Department. He stated he developed an interest in constitutional law, motivated in large part -- in large part by a disagreement with the Warren court decision's, particularly in the areas of reapportionment. Now, in the questions he was asked here, he retreated from that unqualified disagreement and said it was based on certain details of later Warren court decisions, like the 1969 case of Kirkpatrick v. Priesler. Does that seem credible that he was telling Mr. Meese in 1985 that in 1969 as a young college student so incensed by the Kirkpatrick case, it motivated him to study constitutional law?

ISSACHAROFF: I think the Kirkpatrick case may have had some impact in the Alito household because of the particular role that his father played, but his statement refers to an intellectual excitement based on the writings of Professor Bickel of Yale. Professor Bickel was not concerned about the implementation of one person, one vote. Professor Bickel was concerned, as was Justice Harlan at the time, that the court should have no business in this area whatsoever, that whatever the political process did, whatever the malfunctions of politics might be, the courts simply were not to be engaged in that process. That's the idea that was animating Professor Bickel and one has to assume was animating the young Sam Alito.

LEAHY: And, of course, Justice Harlan was one of his heroes. If we follow that idea of Harlan's dissent and others, we wouldn't have had reapportionment around this country, would we? Unless reapportionment done politically by those who would reapportion themselves out of office.

ISSACHAROFF: The history of the United States was that for the 20th Century until we got these cases in the 1960s, incumbent officials simply did not reapportion. They had a constitutional duty, including this body in the 1920s, the Congress, the Senate of the United States decided not to reapportion. The Congress simply said, why should we reapportion ourselves out of business? We'll just refuse. Even though we had a constitutional obligation. The lesson was that when power decides to close in on itself and pull the ladders up behind it, the courts have to be there.

Professor Bickel was deeply disturbed by this, and when I read in 1985 that somebody is saying that that's what brought me to constitutional law, it opens questions. I don't have an answer, but it certainly, I do find it puzzling.

LEAHY: Thank you.

And Professor Liu, listening to the two cases you described, the 10-year-old boy shot in the back while -- by an officer who didn't believe he was armed and in any event he wasn't coming at the officer, he was leaving. TV and the (inaudible), these things really bother me. And you now have the merging story that the president may have violated -- actually Congressional Research Service believes he has and ordered others to violate the criminal provisions of the Foreign Intelligence Surveillance Act by spying on Americans. Do you think, from what you've seen here today we should take great comfort that a potential Justice Alito would stand up to the president on those kind of issues?

I look at how deferential he's been to law enforcement and I served in law enforcement as did I chairman. I have a very soft, warm part in my heart for law enforcement. The only thing in my office that has my name on it is my shield from when I was in law enforcement, but doesn't this bother you?

LIU: Well, Senator Leahy, it does. And I won't venture any predictions as to how he would perform as a justice, but I would say that what he urged the committee to do was to believe that he would behave as a justice as he's behaved as a 3rd Circuit judge.

Let me say one thing about the memo. This memo that he wrote in 1984 is about 13, 14 pages long. The first 10 pages of the memorandum contain his own personal individual analysis of this case. I urge all members of the committee to read it, if only to discover that he uses the first-person throughout the first 10 pages of the memo. Only in the last three pages does he discuss whether or not the United States government should file an amicus brief on the side of the state of Tennessee. And what is ironic about the last three pages is that he observes that all federal agencies prohibit precisely this kind of use of deadly force. And that is one of the reasons why he urged against participation amicus participation in this case, because the United States government would be put to a difficult position to show that it really meant the rule that he would have urged.

LEAHY: Thank you.

Professor Gerhardt, I'm going to send you a letter. I had another question for you. I found very instructive your quick history lesson, as I have when you've given longer ones. Thank you, sir.

Thank you, Mr. Chairman. I apologize. I'm going to have to leave at this point for a while, but I know you've got everything under control.

SPECTER: Thank you, Senator Leahy.

Senator Kyl?

KYL: Mr. Chairman, let me just thank the witnesses for being here. I just am moved to make one comment. I can't dispute the analysis of individual items here, but I think in law we're all familiar with the best evidence rule. And the best evidence of how Judge Alito would serve on the United States Supreme Court, it seems to me is not something that might have motivated him to be interested in the law 30 some years ago or something he even wrote as a young lawyer working in the administration, but rather his 15 years on the bench, number one; and secondly, how his colleagues have viewed his character as well as his judicial performance.

We've had almost three days to query him about all manner of issues. And I think to try to use the phrase cherry pick a particular comment that was made in a much different kind of context and read into that something more powerful than all of the other best evidence that we have is a real stretch. I'll just put it that way.

I nonetheless appreciate the effort that all of you have made to be here to enlighten us in these hearings. And I thank you for your testimony.

SPECTER: Thank you very much, Senator Kyl.

Senator Kennedy?

KENNEDY: Thank you, Mr. Chairman.

I was reminded of an extraordinary observation the other day, and that was that Robert Bork and Ruth Bader Ginsburg agreed 91 percent of time. It was the 9 percent when they differed, which was the major differences. That's something that I think sometimes we lose track of here when we're looking at overall statistics, overall figures. It's the dissents. And it is the close dissents, as the Professor Liu has pointed out, that really indicate on these enormously sensitive issues involving race, involving the disabled, involving women, that so much of a judge's philosophy comes out.

I'm interested in, professor, just if you'd talk a little bit about the jury selection cases. We've considered the two that Judge Alito was most involved in. One, which is pretty boilerplate and understand the Brinson v. Vaughn case and then the dramatic Riley v. Taylor case, which is just extraordinary and I think enormously distressful to many. I'd be interested if you would just talk about both and give us your assessment.

LIU: Sure. Well, Riley v. Taylor has been discussed in these hearings. That was a case that concerned a challenge to racial discrimination in jury selection in the Dover County Court. It was shown that over the course of four murder trials within the same year, including the defendants in the case, the prosecution had struck every black potential juror to serve on a murder -- on a capital jury.

And the case was originally decided, actually, with Judge Alito in the majority, but it was then embanked, and the Judge Sloviter ended up with the majority opinion, basically finding that this pattern, in addition to other evidence in the record, showed racial discrimination of the jury. Judge Alito dissented from that view and I think the sentence I think that is most disturbing is his comparison of that pattern to the right or left handedness of presidents. And he went further to say that absent a careful multiple regression analysis -- I can barely say it -- we can't infer from the statistical pattern any racial discrimination.

Now, when the Brinson v. Vaughn case came along three or four years later -- that was I believe a 2005 case in which there was a pattern of 13, I believe, out of 14 black jurors being struck. And Judge Alito wrote a unanimous opinion, finding rarely discrimination in that case. What is interesting about that case is that he relies on a prior case of the 3rd Circuit, called Holloway v. Horne (ph) which relies in turn on Riley v. Taylor.

KENNEDY: Could you just in the very short time, in looking through the cases on these dissents, in areas where Judge Alito took away the effect of a decision of a trial court to have a jury trial, the number of cases that he took away from the trial court and the number of cases that he took after there had been a jury trial on appeal where he ruled against the individual on that, effectively overriding or overruling the trial court, number in both of those areas is some rather significant cases. We haven't got a lot of time here, but I think you get what I'm driving at in terms of the respect for the trial court and the jury verdict, whether you feel from your own kind of analysis the appropriate kind of respect and tradition for that.

LIU: Well, I think one area in which there is a -- to my mind at least -- a somewhat disconcerting pattern is in the Fourth Amendment context. You know, much has been said about, for example, the Doe v. Groody case. What I find puzzling about that case is, it is not that there is nothing to Judge Alito's position. I think if you read...

KENNEDY: This is the strip searching of the child.

LIU: His opinion actually is like all of his opinions, incredibly well-reasoned, very thoughtful, it is not at all disparaging to the girl or her mother who was found to be illegally searched. What is interesting to me is that in that case there is the availability of two competing interpretive principles. One is read the four corners of the warrant for what it says. The other is supplement the four corners of the warrant with underlying material that is questionable at least in terms of whether or not it is incorporated.

Given the important dignity at interests in Doe v. Groody, it just strikes me as puzzling, why he would have chosen the second interpretive device rather than the first; and the second one is the one that that took the case out of the jury's hands to determine whether or not the search was or was not reasonable.

KENNEDY: This is the one where Judge Chertoff took exception to Judge Alito.

Thank you very much. My time is up.

SPECTER: Thank you, Senator Kennedy.

Senator Sessions?

SESSIONS: Well on the Doe case, Mr. Phillips, Doe v. Groody, this was a question involving a lawsuit you as a solicitor general, you've had to defend law officers of personal damages, you're being sued. At best there was an appearance, was it not, that this affidavit was in fact made a part of the warrant because the magistrate judge intended it so and said it.

PHILLIPS: Senator Sessions, that is to the least of my mind a complete answer to the professor's argument, which is this doesn't have anything to do with two different analytical approaches. It has to do with how do you apply qualified immunity and what deference do you owe to the individual officer who is in a very precarious position, making decisions on the fly.

You know, I think if you read the opinion, it's quite, as I said, scholarly, thoughtful, analytical, almost apologetic with respect to the consequences to the individuals involved, but still recognizing at the end that qualified immunity is designed to provide precisely the kind of gate keeping function that the court exercised there in order to take those kinds of issues away from the jury because that's the only way you can protect the greater societal interests that are implicated.

SESSIONS: So he did a search warrant on a house where dope dealers were there and he followed the instructions of the magistrate. They conducted a search of the young girl in a private chamber by a woman officer without removing all of her clothes, just pulling down her outer garments and a blouse up, apparently. And from the indications of the magistrate, that was permitted. And so, the question was was he acting within the line or scope of his employment and was this officer subject to personal suit for money damages. Isn't that correct?

PHILLIPS: That's absolutely right, Senator.

SESSIONS: Well, I'm telling you our police officers have a hard enough time understanding these laws of search and seizure. They are very complicated. And the judges throw out searches all the time when they're not proper. But to sue the officer who's trying to do the right thing, I think, Judge Chertoff was in error. And I'd like to see him back on here. I'll serve the U.S. attorney with him. I'll ask him about that case. I think Judge Alito was correct. Maybe he was not. But I think he had a good basis for that decision. And I'm concerned about it.

And Mr. Liu, with regard to the Kithcart case in your written opinion here, you quote a dissenting opinion from Judge McKee that said that this is where you criticize Judge Alito for holding that there was not a basis for arresting a black individual who was in a black sports car after some armed robberies that occurred. So that was the message apparently that went out. And the officers stopped the car and arrested this individual.

He was black in a black sports car. And the judge said that's not enough. That's basically racial profiling. And he left open, as I understand, the question of whether or not the stop was legitimate. And this judge -- correct me if I'm wrong. And maybe some of you prosecutors would jump in. But Judge McKee you quote favorably here. He said, "Just as the record fails to establish that Officer Nelson had probable cause to arrest any black male who happened to drive by in a sports car, it also fails to establish reasonable suspicion to justify stopping any and all such cars that happen to contain a black male.

Now, isn't there quite a difference of proof standard between the authority of an officer to arrest someone and the authority of an officer to do an investigative stop? Isn't that clearly a different standard? And wasn't Judge Alito correct to suggest that there's a different standard for the investigative stop than it is to arrest someone?

LIU: I think that's true, Senator Sessions. There is definitely a difference of standards. One is a reasonable suspicion standard. The other is a probably cause standard. 

In this case, I want to be absolutely clear in my testimony. I'm not criticizing Judge Alito for his result. I'm saying he's correct, but Judge McKee is saying that he didn't go far enough. Judge McKee is dissenting to the other side of Judge Alito by saying that by the same logic that racial profiling prohibits the probable cause finding, it also prohibits the reasonable suspicion finding.

SESSIONS: Well, in that I think the law is clearly to the contrary. I think officers who have that kind of information can at least stop a vehicle. At least there's certainly far more authority to do that than it is. And the standard is different, pretty clearly. 

Thank you, Mr. Chairman. I won't...

SPECTER: Thank you very much, Senator Sessions.

Senator Biden?

BIDEN: Mr. Gerhardt, I'm just curious. Was that the case you cited about the Hoover administration? Was that when Senator Bora (ph) went down -- it's been said to -- it's a good answer, I think, to the chairman. Senator Bora (ph) went down. And when he was given a list of 10 people, looked at the list. To the president he said, "It's a great list, Mr. President, but you have it upside down." And that's how you get the message because when presidents actually consult, you do have an impact.

Let me ask a question, Mr. Gerhardt. And I understand if you don't want to answer it. But where do you think on the spectrum of the present court, if Judge Alito is confirmed, he will end up? 

GERHARDT: It's a great...

BIDEN: That's guessing. But, I mean, what's your best judgment?

GERHARDT: It's a great question, Senator, and obviously I think it's one of the central questions in these hearings. I can tell you this much. I know how the president answers that. The president said he wanted to nominate somebody in the mold of Justice Scalia and Justice Thomas. And I think one of the questions in these hearings has been the extent to which, for instance, Judge Alito is going to be perhaps more like those justices or perhaps like some other justices, maybe Justice O'Connor or Justice Harlan, as he suggested. 

And so, if he is going to fit that mold, then obviously the balance shifts in a number of important cases in a certain direction. But if he's not, then, of course, it's going to be harder to predict.

I might venture at least this much. I think that if he is truly going to be a bottom-up judge, as he suggests, then I think the shift is not going to be that great. In other words, the shift will be more modest. That's the critical thing.

The critical thing about being a bottom-up judge is that that is the essence of modesty. There's very little margin or error when you're a judge and you're a bottom-up judge. But if you turn out to be a top-down judge, there's a greater potential for a margin of error. And so, if he does turn out to be more like Justice Thomas and Justice Scalia, there's greater possibility for error.

BIDEN: Well, there'll be an awful lot of disappointed folks in Washington and in the nation if he turns out to be like Justice O'Connor. A lot of people will be very upset who are supporting him now.

But let me ask, if I may, anyone who'd like to respond on the panel. One of my greatest concerns is -- and I must tell you I have diminishing regard for the efficacy of hearings on judicial nominees in terms of getting at the truth. I'm not in any way implying...

(UNKNOWN): Based on the panel?

BIDEN: Yes. No, no, I'm not in any way implying -- across the board, Democratic nominees, Republican nominees. You know, it goes to this issue, in my view, of do the people have a right to know what they're about to put on the bench. And the part that concerned me the most, I must tell you, is the judge's comments on or failure to comment on the -- at least in my view a clear understanding of what he means by the unitary executive. 

It seems very different than what others think unitary executive means and scholars that I'm aware of and his discussion about or failure to respond to what is now a very much animated debate about whether or not the president can wage war without the consent of or authority from the Congress and whether or not, as the administration argues, the war powers clause only gives the Congress the power to declare war if it wants to when the president doesn't want to go to war, which is the most extreme reading I have heard other than one occasion in the Bush one administration. 

So does anyone here have any doubt that there's a need for the president absent in the danger to get the consent of the Congress before he were to invade Iraq or Syria tomorrow? Or does the president have the authority tomorrow, based on his judgment, to raid Iraq and Syria, to invade Iraq and Syria? Anybody want to venture an opinion on that?

ISSACHAROFF: I think, Senator Biden, that the lesson of the steel seizure case and including Judge Alito's invocation of Justice Jackson's opinion in that case, is that the president acts at tremendous constitutional peril when he acts contrary to the express wishes of Congress and acts at significant constitutional peril when he acts absent congressional authority unless there is true military exigency of the moment. I think that that's fairly well established. 

That's been the history of the relationship between Congress and the executive. It's been a difficult history. And the question of how much authorization Congress has given is a repeated issue before the courts and has been since the Civil War cases. But I don't think that there's any doubt on this question constitutionally.

BIDEN: Thank you, Mr. Chairman. My time's up. 

SPECTER: Thank you, Senator Biden. 

Senator Cornyn?

CORNYN: Thank you, Mr. Chairman. 

I guess I just have to express some reservations at trying to predict how Judge Alito's going to rule on the bench. I can think of famous examples where President George Herbert Walker Bush thought David Souter was going to be of a particular frame of mind or approach on the bench. I guess, who was it, Richard Nixon probably had some ideas about Harry Blackmun. And President Eisenhower had some ideas about Earl Warren. 

I mean, this is -- judicial independence means something. And what it hopefully means is that exactly what the framers intended in terms of providing the flexibility, the freedom, the independence. They have life tenure. We can't cut their salary. You know, who knows? I mean, this is, I guess, a debate only lawyers can love. But it's important. But I just don't know how we can answer the question comprehensively.

Professor Issacharoff, it's good to see you again. Of course, I got to know you during your tenure at the University of Texas Law School before you came up North to NYU. But I wanted to -- you know, there's been some questions about Judge Alito's statements back about his concerns about the Warren court decisions on reapportionment. And you alluded to that in your testimony.

And, you know, the fact is our nation has a checkered history, doesn't it, in terms of enfranchising people, making sure that everyone's vote counts roughly the same? Back, I guess, at the beginning of our nation, people had to have property before they could vote. We know that some people couldn't vote at all -- African Americans. And we fought a Civil War and amended the Constitution on that. And we know that there is even today the Texas congressional redistricting case is pending before the United States Supreme Court.

But just to -- this remains the subject of a lot of interest and a lot of controversy. But I just want to make sure that we are not guilty, those of us on this side of the dais, about overstating or reading too much, I should say, into what Judge Alito has said. He said in college he was motivated by a deep interest in constitutional law, motivated in large part by disagreement with Warren court decisions, particularly in the areas of criminal procedure, the establishment clause and reapportionment. Let's talk about reapportionment, which is, I know, one of your passions and expertise.

It wasn't until 1962 when the Supreme Court decided that those issues were justiciable in the first place. Wouldn't that have been Baker v. Carr? 

ISSACHAROFF: That's correct, Senator.

CORNYN: And then the principle of one person, one vote was decided in Reynolds v. Simms in 1964, I believe. Is that the right time and the right case?

ISSACHAROFF: Yes, yes.

CORNYN: And, of course, notwithstanding what some have tried to make out of what Judge Alito said, he's testified here and other areas that he considers one person, one vote a bedrock of our democracy. And he's said that's -- you know, everybody believes that. At least every American believes that today, although it was fairly controversial not that many decades ago, or at least in terms of the courts' role.

What he did say -- and I want to get your comment on this -- is that -- and maybe it was because of his father's experience, as you alluded to a little bit -- that strict numerical precision in terms of the size of districts, whether they be for city councilmen, whether it be for state representative, state senator or congressman or whatever. There's sort of the troublesome issue of how do you deal with things like municipal boundaries and communities of interest, lines that ordinarily you would think define those communities of interest in a way that you just don't want to run roughshod over. Is that a legitimate consideration on the way to try to achieving that goal of one person, one vote? Or is that just bogus?

ISSACHAROFF: I think, Senator -- and I still have the temptation to refer to you as Justice Cornyn. But, Senator, I think that it is absolutely a legitimate concern. I think that one person, one vote turns out to do two things. One, it's emblematic. It's our aspiration that everybody be equal in the political process. And secondarily and perhaps more importantly, it serves as a check on what those in power can do to try to preserve themselves in power. And that second feature of it has been difficult. 

And the efforts to ratchet up mathematical exactitude have usually come in cases that were about something completely different. For example, in the New Jersey case in the mid-1980s, Karcher v. Daggett, the real issue was a partisan gerrymander. And everybody understood that. And the court didn't know what to do about it. Justices had trouble with that issue for the decade since. And so, it fell back on this extraordinary mathematical exactitude, which, in fact, is completely illusory because the census isn't that precise.

So I agree with you fully. I don't think that that was where the controversy had moved in the late 1960s. I'd stay by that statement. But nonetheless, you're absolutely right that this is a legitimate source of concern.

CORNYN: Professor, thank you. My time is up. I appreciate your response to my question. Thank you.

SPECTER: Thank you, Senator Cornyn.

Senator Coburn?

COBURN: Thank you, Mr. Chairman. 

I've been listening. I was not here for all of it, but I was paying attention by the video screen in the back room. And just some observations.

You know, I live on Capitol Hill with two Democrats. And the thing that's normally asked of them is how can you live with that guy. You know? And their answer is you don't know his heart. And then I get asked the same thing. How can you live with those two guys? And I say you don't know his heart.

And it strikes me as I look at this panel, the three people who testified favorably for Judge Alito know him. And the three people who didn't testify, who testified somewhat negatively about Judge Alito don't know him. They've read some of his cases, not all of his cases. 

And so, it just kind of strikes me that one of the most valuable pieces of information that this committee has gotten from outside witnesses was the judge panel that came before you, the people that have worked with him for over a decade, worked with him in a closed room. I believe they know his heart. And I believe anyone in this room you can take anything that we've written at some time or said at some time and you can make each of us look terrible. And I would just -- I only have really one question. And that's for Professor Liu.

How do you explain the fact that Judge Lewis, who is adamant about Title 7 of the Civil Rights Act, his observations about Judge Alito are completely contrary to yours? How do you explain that? Here's a guy that knows him. Here's a guy that has very liberal leanings in terms of the political spectrum. Here's a guy that is basing his whole legal career on civil rights. And yet he says I know this man, and there's not a bit of truth in any bias or any direction that he goes. How do you explain that?

LIU: Well, Senator Coburn, I certainly can't dispute Judge Lewis' account or views on Judge Alito. I understood the previous panel to be testifying to the integrity and intellectual honesty of the nominee, none of which I dispute. In fact, I conceded in the very first sentence of my testimony that I find him also to be an intellectually honest person.

My only viewpoint, I guess, that I'm offering is not really a viewpoint at all. What I'm trying to simply urge is that some attention be paid to his record and that the record speaks for itself. And it doesn't speak to the nominee's intellectual -- any negatives regarding the nominee's intellectual honesty. Rather, I think, it speaks more to the set of values or instincts or the intangible qualities of judging, I think, that every judge, every human being brings into the world.

It is not that any judge decides to go about any case saying I come in with this bias or I come in with that bias. I grant that Judge Alito, like every judge, tries to be impartial. But every judge also has a set of instincts, a central tendency. And I think it can be revealed, not definitively, but it can be revealed by looking at patterns across large numbers of cases.

COBURN: And you looked at 50 cases of his? Is that correct?

LIU: Well, I've actually looked at more, but the cases that I've...

COBURN: How many more? How many more?

LIU: I've probably looked at 60 or 70 cases.

COBURN: Out of 4,000?

LIU: Out of the 360 that he's written.

COBURN: Written opinions on, but he still has adjudicated over 4,000 cases.

LIU: Certainly, that is true.

COBURN: All right.

Thank you, Mr. Chairman. I yield back.

SPECTER: Thank you, Senator Coburn.

I had hoped to finish up this evening. But the sense of the proceeding at this point is that it's not a wise thing to do. This panel took an hour and 15 minutes. And projecting with a break, we'd be in the 10:00 range or perhaps even later. That would depend upon how many senators were here to question. And I think in the morning we may have more questions. And I think it is a fair observation that we're not at our best. And we started at nine, so we're in the 10th or 11th hour. And we do have tomorrow to proceed and still meet the schedule that I had announced earlier.

I know that it's a likely inconvenience to some of the people who were on the later panels. Although nobody on the latter panels, if we were to finish tonight, would be out of this town tonight anyway. So it's really staying over. I know that in making your plans to come here you didn't know whether you'd testify on Thursday or Friday, and nobody else knew whether you'd testify on Thursday or Friday. We tried to follow the Roberts model. But on Roberts we finished up his testimony close to 11:00. And today we didn't start on the outside witnesses until 2:30. That's probably more than you want to know, but I like to tell you what's on my mind.

I see some of the witnesses on the later panels nodding in affirmative. Nobody seems to be too distressed about calling it a day at 6:36 after starting at 9 a.m. So we will begin tomorrow morning at 9:00.

KENNEDY: Mr. Chairman, could I enter in the record a letter from the National Association of Women's Lawyers in the appropriate place and then also a letter from Professor Higgenbotham (ph) as well in the appropriate place in the record?

SPECTER: Certainly, without objection, they will be placed in the record at what we conclude to be an appropriate place after consulting with you. 

Thank you all very much. That concludes our hearing.

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


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