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

CQ Transcriptions
Friday, January 13, 2006; 11:48 AM



JANUARY 13, 2005






































































































































SPECTER: The hearings for the confirmation of Judge Alito for the Supreme Court of the United States will now reconvene.

I've just been discussing with Senator Leahy the allocation of time, and we had seven judges who testified yesterday who exceeded the five minutes. I thought it the better part of prudence to not bang the gavel, but allow them to go on, but they did take some extra time -- in the seven, eight, nine minute range.

So, I just said to Senator Leahy that we'll give seven of the witnesses selected by Democrats five extra minutes, or he can allocate the time as he chooses. I don't want to split hairs over how much the exact time was.

But I think it's very important to keep the balance, and we did that in the selection of the number -- 30. In the past it had been divided about 18 to 12, with the majority party taking more. But we have worked out the arrangement of 15 to 15, to keep it level.

LEAHY: Mr. Chairman, if I might on that, you have been fair. Ultimately, of course, everything has to be determined based on what the nominee says. But these public witnesses are important in deciding whether we replace Justice Sandra Day O'Connor with Judge Samuel Alito.

I think they help focus, as the witnesses yesterday did, on aspects of his record and events with respect to civil rights and privacy rights. These are long-time pioneers in our nation's sometimes rocky journey toward equal justice and respect for women's rights. They're the people in the frontline today.

We'll hear from representatives of minority communities. We'll have a number of written statements.

And as I've said over and over again, we're the only 18 people who get to ask questions on behalf of 295 million Americans and generations for a long time to come. So I think these hearings are important.

Again, I thank you for your courtesies and your fairness in keeping them going.

SPECTER: Thank you very much, Senator Leahy.

We now turn to our first witness on the panel, on our next panel. Professor Nora Demleitner, from the Hofstra School of Law teaches, teaches and has written widely on criminal, comparative and immigration law, managing editor of the "Federal Sentencing Reporter" and serves on the executive editorial board of the "American Journal of Comparative Law."

Bates graduate, summa cum laude, graduate from the Yale Law School, 1992 -- we have a heavy representation of Yale law graduates here; that's a very healthy thing -- and was symposium editor of the "Yale Law Journal." I didn't know there was a symposium editor. There wasn't one there in my time.

Thank you for joining us, professor, and the floor is yours.

DEMLEITNER: Thank you, Mr. Chairman, Senator Leahy and members of the committee. Good morning, and thank you for the opportunity to testify today. The one thing that I should...

SPECTER: I should have added, professor, that you clerked for Judge Alito after graduating from law school. I think that ought to be on the record.

Start the clock back at five minutes.

DEMLEITNER: I was about to ask that. Thank you very much.

Since the very early days of my clerkship, I must admit that Judge Alito has really become my role model. I do think that he is one of the most brilliant legal minds of our generation -- or of his generation -- and he's a man of great decency, integrity and character.

I say all of this as what I would consider to be a left-leaning Democrat, a woman, obviously, a member of the ACLU and an immigrant. And my view is not one that is unique with regard to people who have worked with him, or with regard to people who have worked for Judge Alito.

All of his clerks, many of whom are politically liberal, have signed on to a letter strongly urging the Senate to confirm Judge Alito as Associate Justice. A number of non-Republican legal academics who have worked with or for Judge Alito have also issued an equally forceful statement on his behalf.

Let me explain to you why I believe that Samuel Alito deserves to sit on the highest court and why his confirmation will, in fact, not pose a threat to the rights of women, to the rights of minorities, immigrants or other vulnerable groups.

Judge Alito does not have a political agenda. He gives very careful consideration to the lower court record and to prior judicial decisions.

Let me point you to two cases that may explain the judge's philosophy. While I clerked for him, he had to decide the case of Parastoo Fatin. Ms. Fatin had left Iran in order, in part, to be escaping the regime of Ayatollah Khomeini. She applied for asylum in the United States, but was denied by the immigration court and by the Board of Immigration Appeals.

Without revealing any confidences, I can tell you that Judge Alito was very much moved by the personal tragedy of the situation and the moral dilemma Ms. Fatin would face. If returned to Iran, she would either be unable to speak her deep feminist convictions, or the Iranian regime would penalize her. The problem with her case was that there was really an absence of favorable case law and, even worse, a very thin record, that indicated only very limited opposition on her part to the Iranian regime.

The judge did not see himself in a position to help Ms. Fatin, who was, however, ultimately permitted to stay in the United States. He, however, did take this opportunity to write one of the most progressive opinions on gender-based asylum law.

His decision was the first to recognize that gender alone could constitute a basis for asylum. This revolution in asylum law has not been widely recognized outside a very small group of asylum practitioners. And neither has Judge Alito gotten a whole lot of credit for garnering the votes of both of his fellow panelists for this decision, one of whom was a Nixon appointee.

The Fatin case hasn't gotten a lot of attention, but you have spent part of the day yesterday on the Rybar case, where Judge Alito dissented. I think you should read the case a little differently than the way in which it has been portrayed. Let me just set the context.

In 1995, the Supreme Court decided Lopez, Justice O'Connor joining the majority, striking down the possession of machine guns on school grounds as unconstitutional. I think a lot of commentators expected this to create a major shift in lower court jurisprudence. This did not happen, I think, in part, because the lower courts read the decision extremely narrowly and, arguably, incorrectly.

Judge Alito, who has been, I think, generally labeled as an anti- criminal defendant judge, was very much willing to follow Supreme Court precedent to the point where it would necessitate the dismissal of a host of criminal indictments. At the same time, he took pains to note that Congress could very easily remedy the problem with the statute by indicating in the record that there was a connection between the possession of machine guns and interstate commerce. Let me also point you to the fact that a blue ribbon ABA task force has increasingly critiqued the increasing federalization of criminal law.

Judge Alito's record, I think, indicates, and Rybar confirms, that he will follow Supreme Court cases very carefully, and that he will read congressional legislation very carefully. He has also used, I think, his prior background experience very effectively in working, for example, on sentencing reform with the Constitution Project and, at one point, as an advisory board member of the "Federal Sentencing Reporter."

I believe, overall, that his criminal background experience will inform the judge's decision, but it will surely not bias him in one way or the other. He'll be able to strike a practical balance that is informed but not predetermined by his background.

And for all those reasons, I believe very strongly that he deserves to be confirmed as the court's next Associate Justice.

SPECTER: Thank you very much, professor.

We now turn to Professor Erwin Chemerinsky, the Austin and Burg Professor of Law and Political Science at Duke.

Prior to coming to Duke in 2004, he had been for 21 years at the University of Southern California Law School, where he was the Irmas Professor of Public Interest Law. He is a graduate of Northwestern University with a bachelor's degree and a law degree from Harvard. And last year, he was named by "Legal Affairs" as one of the top 20 legal thinkers in America.

Thank you for coming in today, professor. The floor is yours.

CHEMERINSKY: Thank you, Mr. Chairman, Senator Leahy, distinguished senators.

It's truly an honor and a privilege to testify at these historic hearings. It's impossible to overstate the importance of this nomination for the future of constitutional law.

In recent years, the Supreme Court is often referred to as the O'Connor court, because Sandra Day O'Connor so often has been in the majority in 5-4 decisions in crucial areas: protecting reproductive freedom, enforcing the separation of church and state, limiting presidential power and advancing racial justice. Replacing her has the possibility of dramatic changes in so many areas of constitutional law.

A crucial question for this committee is, what will be the effect of Samuel Alito on the Supreme Court?

I want to focus on one area: executive power. I choose this area, because no area of constitutional law is likely more important in the years ahead than this.

As you know, in recent years, the Bush administration has made unprecedented claims, expansive presidential power, such as the claim of authority to detain American citizens as enemy combatants without even the Constitution's requirements for warrant, grand jury indictment or trial by jury; the claim of authority to torture human beings in violation of international law; the claim of authority to eavesdrop on conversations of Americans without complying with the Fourth Amendment or the Foreign Intelligence Surveillance Act; the claim of authority to hold American citizens indefinitely, and citizens of other countries indefinitely, as enemy combatants.

My goal here isn't to discuss the merits of any of these issues; instead, to point to the fact that separation of powers is likely to be an enormously important issue in the years ahead. And, of course, there's no need to remind this body of the crucial role the checks and balance separation of powers play in our Constitution's structure.

Some of the most important Supreme Court cases in history have been those where the court has said no to assertions of presidential power, such as Youngstown Sheet and Tube v. Sawyer, in striking down President Truman's seizure of the steel mills, and the United States v. Nixon, in stating that President Nixon had revealed the Watergate tapes.

A key question for this committee is whether Samuel Alito will continue this tradition of enforcing checks and balances, or whether he'll be a rubber stamp for presidential power.

I have carefully read the writings, the speeches and the decisions of Samuel Alito in this area, and they all point in one direction: a very troubling pattern of great deference to executive authority. I have closely followed the hearings this week, and I know you're familiar with the examples.

To mention just a few, in 1984, while in the Solicitor General's Office, Samuel Alito wrote a memo saying that he believed that the Attorney General should have absolute immunity to civil suits or money damages of engaging in illegal wiretapping, a position the Supreme Court rejected, in language that seems so appropriate now, in saying there was too great a danger of violation of rights from (ph) executive officials, when the zeal to protect national security would go too far.

The next year, he said there should be increased use of presidential signing statements. He said, quote, the president should have the last word as to the meaning of statutes, which would be an increase in executive power.

As you know, in a number of writings and speeches, he said he believed in the unitary executive theory. There's a good deal of discussion this week as to what that means.

But if you look at the literature of constitutional law, those who believe in a unitary executive truly want a radical change in American government. They believe that independent regulatory agencies, like the Securities and Exchange Commission or the Federal Communications Commission, are unconstitutional. They believe the Special Prosecutor is unconstitutional. They reject the ability of Congress to limit the executive.

As a judge on the Third Circuit, Judge Alito has not had the opportunity to review resurgence of presidential power. But there have been many cases which considered assertions of law enforcement authority. Over and again he comes down on the side of law enforcement. I think his dissenting opinions are particularly revealing, because as Judge Becker said, he rarely dissents.

One case, I think, shows Judge Alito's overall philosophy. There's one discussed yesterday at the end of the day, Doe v. Groody. This, of course, was the case where the police strip searched a mother and her 10-year-old daughter, who were suspected of no crime. As Carter Phillips said yesterday, this was an issue of qualified immunity. That means, did the officers violate clearly established law that a reasonable law (ph) should know? Should the officer have known that it violates the Constitution?

Senators, any police officer, any judge should know that strip searching a 10-year-old girl, who was suspected of nothing, violated the Constitution. Senators, this is one of so many cases where Judge Alito deferred to law enforcement. I am here for a simple reason. I believe that at this point in time, it's too dangerous to have a person like Samuel Alito, with his writings and records on executive power, on the United States Supreme Court.

Thank you.

SPECTER: Thank you very much, professor.

We now turn to Professor Anthony Kronman. After teaching at the University of Chicago Law School and Minnesota Law School, Professor Kronman came to Yale, where he has been on the faculty for 16 years, and was the dean of the law school from 1994 to the year 2004. He is a Sterling Professor of Law at Yale.

He has his undergraduate degree from Williams in 1968 with highest honors, a Ph.D. in Philosophy at Yale, a law degree from Yale in 1975, when he was a classmate of Judge Alito.

Thank you for being with us today, professor, and the floor is yours.

KRONMAN: Thank you, Mr. Chairman, Senator Leahy, other members of the committee. I am grateful for the opportunity to appear this morning and offer my testimony.

I have known Sam Alito for 33 years, since we met in the fall of 1972 as members of the entering class at the Yale Law School. Over the next three years we took nearly a third of our law school courses together. We worked on the law journal together. We debated in the moot court program. I had a chance to observe Sam Alito at close range and to form an estimate of his character.

Sam was hardworking and ferociously bright. No one, I think, would challenge that. But that wasn't the first thing that impressed me about Sam. What impressed me first and most emphatically was his generosity and gentleness.

When Sam spoke, in class or out, others listened. But when others spoke, Sam listened, and not just in the superficial sense of waiting politely until they had finished, but in the deeper and more consequential sense of straining to grasp the good sense of their position and to see it in its most attractive light.

Sam always spoke with modesty. But even when he was defending a position that he believed clearly to be right, did so with the knowledge that he might be wrong.

Learned Hand once described the spirit of liberty as the spirit that's not too sure of itself. That's a phrase that's always had a special meaning for me, and it well describes the quality in Sam that I noticed from the start.

I noticed something else and admired something else, as well, and that was Sam's faith in the law. Sam believed in the integrity of the law, and in the essential fairness of its processes.

Anyone who has studied the law knows that it is not a mechanical system; it requires moral judgments at many points. But there is all the difference in the world between a person who approaches the law from the outside and views it as an instrument for the advancement of some program of one kind or another, and a person who approaches it from the inside and whose fundamental leading allegiance is to the law itself.

Sam falls clearly in that second category. He had, so far as I could tell, no political agenda of any kind. I would have described in law school as a lawyer's lawyer. And if you would have asked me on the day we graduated whether he was a Democrat -- as I was then and am today -- or a Republican, I couldn't have told you.

My knowledge of Sam Alito is based almost entirely on my personal acquaintance with the man. But since his nomination to the Supreme Court, I have attempted, as have many others, to glean at least a sense of his judicial temperament by reading a few of his opinions. I haven't read many, I haven't made a systematic study of them, but the ones that I have read suggest to me rather strongly that the judicial temperament that I discern in these opinions is entirely consistent with the human temperament of the man I came to know and admire more than 30 years ago.

The temperament of the judge, as I see it, is marked by modesty, by caution, by deference to other, in different roles with different responsibilities, by an acute appreciation of the limitations of his own office, and by a deep and abiding respect for the past.

There is a name that we give to all of these qualities taken together. We call them judiciousness. And in calling them that, we recognize that they are the special virtues of a judge.

Judge Alito has been a judicious judge. And my confidence that he will be a judicious justice is based on my personal knowledge of the man and my belief that his judicial temperament is rooted in his human character, which is the deepest and strongest foundation it could have.

Thank you very much.

SPECTER: Thank you very much, Professor Kronman.

We turn now to Ms. Beth Nolan, partner in Crowell and Moring Litigation Group, has a broad practice which focuses on constitutional and public policy issues.

Ms. Nolan held prestigious and high ranking positions in the Clinton administration in the Department of Justice in the Office of Legal Counsel. She had been a clerk to Chief Judge Collins Seitz of the Third Circuit. Is an undergraduate -- has an undergraduate degree from Scripps College and a law degree magna cum laude from Georgetown in 1980.

Thank you for being with us today, Ms. Nolan. We look forward to your testimony.

NOLAN: Thank you, Mr. Chairman, Senator Leahy, members of the committee. I'm delighted to be here today, and thank you for inviting me to provide my views.

I want to address one issue, how Judge Alito, if he should become Justice Alito, would approach questions of executive power.

I've served, as you mentioned, Mr. Chairman, in the White House as Counsel to the President, and political and career positions in the Office of Legal Counsel in the Clinton and Reagan administrations.

As might be expected of one who has served as legal counsel to the president, I believe it is essential to defend the power of the president to undertake his constitutionally assigned responsibilities and to resist illegitimate incursion on that power. And certainly, in my position as White House Counsel, I sometimes was in conflict with Congress as each branch struggled to assert its views of its authority.

This does not mean, however, that the executive should assert a view of its power that is virtually unconstrained or that fails to take account of the constitutional powers of Congress. Presidential power should be interpreted, even by lawyers for the president, with proper respect for the coordinate branches, not solely to maximize presidential power.

Judge Alito's service, as has been mentioned, on the Third Circuit, has not offered him much opportunity to address issues of executive power, but we do have some indication of his views. And I find particularly instructive and troubling his 2000 Federalist Society remarks in which he announced his support of the unitary executive theory. What he means by that support is a critical question.

It's a small phrase in one way -- unitary executive -- but it has almost limitless import to many of its adherents. At one level, it embodies the concept of presidential control over all executive functions, as Professor Chemerinsky mentioned, a concept that's been soundly rejected by the Supreme Court.

But the phrase also often serves to embrace a bundle of expansive interpretations of the president's substantive powers and correspondingly stringent limits on the legislative and judicial branches. This is the apparent meaning of the phrase in many of the administration's -- this administration's -- signing statements, claiming broad powers for the president.

In his Federalist Society speech, Judge Alito endorsed the theory of the unitary executive as developed during the period he served in the Office of Legal Counsel as a supervising deputy. An important question is how he views OLC precedence from that time.

In one opinion from that time involving covert activities, OLC expressed the president's authority in sweeping terms, adopting Justice Sutherland's dicta from a very different context to assert that the president's authority to act in the field of international relations is plenary, exclusive and subject to no legal limitations, save those derived from the applicable provisions of the Constitution itself, while declaring that Congress had only those powers in the area of foreign affairs that directly involve the exercise of legal authority over U.S. citizens.

This would seem to mean that the president is essentially above the law in the areas of foreign affairs, national security and war, and Congress is powerless to act as a constraint against presidential overreaching in these areas. It is a fair question whether Judge Alito agrees with these sweeping views.

This is not just of historical interest, of course. That version of unitary executives from the 1980s sounds remarkably similar to the assertions of unreviewable and unconstrained powers the current president has asserted with regard to his authority to ignore the laws passed by Congress, such as those forbidding torture and those regulating electronic surveillance. These issues may well come before the Supreme Court.

Judge Alito indicated over 20 years ago his strenuous disagreement with the usurpation by the judiciary of the decision making authority of the political branches.

Does this signal that he will defer to the executive branch's positions on its power and its claims that these positions are largely unreviewable? Or will he, as Justice O'Connor did in Hamdi, see a clear role for the courts in protecting our constitutional balance and, hence, our civil liberties?

Judge Alito's statements about executive power raise legitimate and serious questions that should be explored.

SPECTER: Thank you very much, Ms. Nolan.

Our next witness is Professor Charles Fried of the Harvard Law School, an expert in the areas of constitutional, legal and moral philosophy. From 1985 to 1989, he was Solicitor General of the United States, and from 1995 through 1999, he was an Associate Justice of the Supreme Judicial Counsel of Massachusetts.

He holds a bachelor's degree from Princeton, a doctor of law from Columbia, and both a bachelor's and master's from Oxford University.

Professor Fried, in his capacity as Solicitor General, was Judge Alito's superior when Judge Alito worked in that office.

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

FRIED: Thank you, Chairman Specter, and I thank the members of the committee for inviting me.

I think what I can most usefully do is cast some light on Judge Alito's -- and if I slip into "Sam," please forgive me, because we were a small and very collegial and friendly office -- Judge Alito's work in that office.

The Reagan administration no doubt had a point of view about the law, just as did the FDR administration in 1933, or the JFK administration in 1961. That is not unusual. That's what elections are about.

Part of that view encompassed the notion that the lower courts had gone too far in limiting the ability of law enforcement, that the lower courts had moved too far away from an appropriate view of Affirmative Action, as expressed by Justice Powell in Bakke, toward quotas. And, I suppose, emblematic of the notion that courts sometimes just make things up was the notion that Roe v. Wade was incorrectly decided, a notion which, may I say, was shared by people across the political spectrum. Professor Paul Freund, Archibald Cox expressed that view as late as 1985.

The first job of the staff of the Solicitor General's Office was to make sure that when the solicitor general presented the solicitor general's clients' position to the Supreme Court, this was done in a professional, correct and respectful way.

That office had career lawyers, some of whom stretched back to the time of Lyndon Johnson. I myself appointed as deputies people who I knew to be Democrats -- liberal Democrats. None of that bothered me or bothered them, because we were a professional office and they understood that their work was professional work. That is exactly how Judge Alito viewed his work.

If I look at the example that has -- two examples -- that have been much featured in these discussions, his memo to me in the Thornburg case on Roe v. Wade, it is said that he argued that Roe v. Wade should be overruled. He did not -- you need only read that memo, because he said in that memo that we should not argue that Roe v. Wade should be overruled. I didn't follow that advice, but that was what the advice was.

Similarly, it is said that he argued for the absolute immunity of the Attorney General in connection with wire taps. He did not. What he said was, I don't question that immunity, but we should not propose that argument. We should not make that argument to the court.

In 1985, he wanted a job in the administration, and at that point he took on a different role and he spoke in a different tone of voice. I think that's perfectly understandable and appropriate. And when, 15 years later, he became a judge -- when, 15 years ago he became a judge -- he once again assumed a different role.

His whole career shows that he understands the difference between a professional lawyer, an advocate and a judge. And no more eloquent testimony of that understanding can be had than the wonderful testimony of his colleagues -- Democrat and Republican, liberal and conservative -- who served with him for those 15 years.

I believe that it's perfectly appropriate for this panel, for this committee, to have probed Judge Alito's disposition. Everybody has a disposition. He is in the mainstream. He tends toward the right bank of the mainstream, I agree.

When this Senate approved two wonderful judges to be justices, Justice Breyer and Justice Ginsburg, it was perfectly plain that they tended toward the left bank of the mainstream, and they were confirmed and properly so. I believe Judge Alito should be, as well.

SPECTER: Thank you very much, Professor Fried.

Our next witness is Professor Laurence Tribe, Loeb University Professor at the Harvard University, and Professor of Constitutional Law at the Harvard Law School.

Professor Tribe has argued before the United States Supreme Court over 33 times, served as a law clerk to Justice Potter Stewart, received his bachelor's degree from Harvard College summa cum laude in 1962, and a law degree, also from Harvard, magna cum laude, in 1966.

Professor Tribe, the floor is yours.

TRIBE: Thank you very much, Mr. Chairman, Senator Leahy and members of the committee. It's a great honor to be here on this very important occasion.

I'm not here to endorse the nomination of Judge Alito, as I did with my most recent testimony before this committee on a Supreme Court nomination with Justice Kennedy.

I'm not here to oppose his nomination, as I did several months before that time with Robert Bork. And I'm not here to lecture the committee on its responsibilities or its role. I don't think that's my role.

I think the only useful function that I can perform is to ensure, to the limited extent I can, that senators not cast their votes with, to borrow an image from a Kubrick movie, their eyes wide shut.

It is quite clear that there are two, central concerns in the country and in the Senate with respect to this nomination, and they do not relate, honestly, to what a truly admirable, collegial, modest, thoughtful and brilliant fellow Sam Alito is. I don't mean to call him Sam. I don't really know him the way that my colleague Charles does.

They relate to whether Justice Alito might, by casting a decisive fifth vote on many cases, narrow the scope of personal liberty, especially for women, and broaden the scope of presidential power at a time when we see dramatically the dangers of an unfettered executive by weakening the ability of both Congress and the courts to restrict presidential assertions of authority.

A word first about liberty. It is certainly true that, in the Solicitor General's Office, the memorandum that Judge Alito wrote for the Solicitor General did not urge that the court be confronted frontally -- overrule Roe. But he made it clear even then that the strategy he thought wise to pursue was a step by step process toward the ultimate goal of overruling Roe. That is the only prospect on the table.

I assure you that, if the Supreme Court actually overrules Roe, I will have thousands of students to tell that I predicted the wrong thing. That's not the danger.

They won't say Roe v. Wade is hereby overruled. What they will do -- and I'm saying "will," because I am assuming that confirmation will occur, maybe it won't -- but with the vote of Judge Alito as Justice Alito, the court will cut back on Roe v. Wade step by step, not just to the point where, as the moderate American center has it, abortion is cautiously restricted, but to the point where the fundamental, underlying right to liberty becomes a hollow shell.

It is the liberty interest, which occurs not only in Roe, but in the right to die and in many cases that we can't predict over the next century, and certainly over the 30 years that Justice Alito would serve. It is that underlying liberty which is at stake.

And it is crucial to know that Judge Alito dramatically misstated the current state of the law. And I say that with deference and respect, but it was clear.

When pushed on whether he still believed, as he said, not in his role as a government lawyer, but in his personal capacity, that he believed the Constitution does not protect the right to abortion, when he was asked, do you still believe that he said, well, I would approach it by starting with Casey. Casey, in 1992, he said, began and ended with precedence, stare decisis; Casey simply followed Roe, and he thereby avoided the issue.

That's not true. Casey split the baby in half. That is, Casey said there are two fundamental questions here. One, does the woman have a fundamental liberty at stake when she's pregnant and she wants to make a decision? And number two, assuming she does, at what point does the state's interest in the fetus trump the woman's liberty?

On the liberty issue, the court did not rely on stare decisis and Roe. The moderate justices who wrote the joint opinion -- Justices O'Connor and Kennedy and Souter -- said that on the underlying issue of liberty we agree, clearly, the woman's liberty is important, special, not just like the right to fix prices.

Because, if we didn't that, and if we had a case where a teenage girl is being forced to have an abortion, her liberty wouldn't be special either. And therefore, we must conclude, without relying on Roe, this is a liberty deserving of special protection.

Never, in the descriptions that you heard from Judge Alito with respect to the issues in Roe, did he confront the question, does he, too, believe that that liberty is special? Or does he, as did Robert Bork and as do many, believe that there is no special liberty simply because the woman happens to have a fetus inside, her interest is no greater than my interest in learning how to play tennis.

So, it seems to me clear that the indications we have of Judge Alito's belief are that he does not have a conviction that that liberty is special. And he is unwilling not only to commit to treating this as a so-called "super precedent," he's not even willing to indicate to this committee that he believes that the court has a special role in protecting intimate personal liberties.

With respect to consolidating the powers of the president, I want to associate myself completely with the remarks of Beth Nolan. It is very clear that, with respect to the unitary executive theory that is being espoused, that what you saw in the instance of Judge Alito's testimony was not a forthright description of what he said he believed.

SPECTER: Professor Tribe, you're a minute and a half over. If you could summarize, we'd appreciate it.

TRIBE: I'm sorry. I will certainly summarize.

When he spoke in November of 2000, after Morrison was decided, he outlined a strategy for consolidating the power of the president, notwithstanding Morrison. And I think it is easy to explain, but I won't try to do it over time, why the distinction he tried to draw between a president's control of functions within his power and the scope of executive power is a completely phony distinction.

SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?

TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.

SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?

TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation.

SPECTER: The clock needs to start at five minutes, even for the chairman, for everybody.

We'll now -- I'd already started the five minute round, but we'll proceed. And as we all know, after the panel testifies, each senator has five minutes for questioning.

Professor Fried, you testified in the confirmation hearing of Chief Justice Roberts that you thought Roe was wrongly decided, but you also thought that Roe should not be overruled. And that's based on the reliance and upon the precedence and upon stare decisis.

You've worked closely with Judge Alito. I know you've followed his career. What is your sense as to how Judge Alito will approach the Roe issue, if it should come before the court for reversal or being sustained, in the context of your understanding of his approach to stare decisis?

FRIED: Well, I think it's a version, but only a version, of what my colleague and friend Larry Tribe has said. I think he will not -- and Larry agrees with that-move toward a frontal overruling, just as he has been urged, and others have urged, should happen.

That's my belief, and I could be quite wrong. I could be quite wrong about that, but that's my belief.

Now, the idea that he would chip away at it, I'm not sure I know what that means. When the Casey decision came down and Justice O'Connor -- and it's clearly Justice O'Connor -- moved from the very strict almost abortion-on-demand standards of Roe towards the undue burden standard, a cry went up from the community, which I think Professor Tribe is associated with, that this was a disaster. But in fact it was a reasonable thing to do.

And we do not know what the future holds, but I don't expect him to do things which would be other than in the reasonable tradition of Casey, which I agree with Professor Tribe is a much better decision and a much better founded decision than Roe.

SPECTER: Ms. Nolan, the critical issue which the Congress is going to be looking at, and this committee is going to hold a hearing on, is the president's power on eavesdropping without a warrant in the contravention of the specific provision of the Foreign Intelligence Surveillance Act.

During the Clinton administration, Deputy Attorney General Jamie Gorelick testified -- I see you nodding, you know she testified -- that the president had inherent authority to conduct those warrantless searches.

What have you seen aside from the generalizations of unitary power, anything specific in the record of Judge Alito that he has a view on that critical issue?

NOLAN: First of all, I just want to be clear that Deputy Attorney General Scorella's testimony was about inherent authority in the absence of a statutory provision. It was physical searches not covered by FISA, just to clarify that.

SPECTER: Well, she testified during the Clinton administration, which was long after FISA was adopted.

NOLAN: Yes, but it didn't cover physical searches, and that was the question at that time. It was part of the Ames case. And in fact the administration brought to Congress a request that FISA be amended to cover physical searches.

SPECTER: OK. On to Judge Alito.

NOLAN: I'm not aware of anything in Judge Alito's record with regard to that.

SPECTER: Professor Chemerinsky, do you think -- you commented that the issue as to Judge Alito as to whether he'd be a rubber stamp or not for executive power. Do you think he'd be a rubber stamp?

CHEMERINSKY: Everything that I could find in his record points to tremendous deference to executive authority.

SPECTER: Well, tremendous deference is a little different from being a rubber stamp.

CHEMERINSKY: I think the key question that this committee has to face is, will this be a justice when these issues that we're talking about come before the court is he willing to enforce checks and balances? In light of his entire career before going to the bench, being in the executive branch, in light of his writings when he was in the solicitor general's office, the speeches that he's given, the opinions he's written on the third circuit, I don't find anything to indicate that he will be enforcing checks and balances.

SPECTER: So you think he'd be a rubber stamp? CHEMERINSKY: I think the record here does speak for itself. I think if we can't find anything that points to his willingness to enforce checks and balances...

SPECTER: I have to interrupt you. I want to ask a question of Professor Kronman and Professor Demleitner. There's been a lot of talk about Judge Alito, whether he is deferential to the powerful and to the government.

You, Professor Demleitner, was his clerk, you know him pretty well.

You know him, Professor Kronman, for several decades.

I'd like you to address your sense of him on that issue.

Start with you, Professor Demleitner.

DEMLEITNER: I have never seen anything while I clerked for him or in subsequent years that led me to believe that he had an agenda or any kind of plan to save a particular group over others. He really in my experience looks at each case individually, and I'm sure he was surprised when he saw the statistics adding up how often he voted for a corporation or for an individual.

Quite to the contrary, I think his opening statement was a very powerful one in which he addressed his own background, and I think it indicates that he would not be inclined to favor big government or big corporate interests over individual interests.

SPECTER: Professor Kronman?

KRONMAN: I would agree with that. I have no reason to think that Judge Alito begins with a strong dispositional inclination to always favor governmental power over individual rights.

He does, I think, have an inclination to be respectful of those in positions of institutional authority who have wrestled with questions that come before his court and to take seriously the thought they've given to those questions and to weigh them appropriately.

SPECTER: Thank you very much.

Senator Leahy?

LEAHY: Thank you, Mr. Chairman.

I'm curious, and I listened very carefully, Professor Chemerinsky -- did I pronounce that correctly?

CHEMERINSKY: Yes, you did. Thank you.

LEAHY: Thank you. In 2004, in the Hamdi case -- and I'm sure you're very familiar with that -- the Supreme Court considered whether due process required that a citizen of this country who was being held as an enemy combatant but a citizen of this country should be forwarded a meaningful opportunity to challenge the factual basis for the detention.

Justice O'Connor's decision for the court upheld the fundamental principle of judicial review over the executive authority. She said in effect that in war, whether declared war, war on terror, whatever, it's not a blank check for the president when it comes to the rights of a nation's citizens.

Now, the unitary executive theory, which Judge Alito espoused remarks just as recently as five years ago, was championed in dissent by Justice Thomas in Hamdi and saying that the war powers of the president couldn't be swayed by the court.

Well, I'm going to ask you this and then I'll ask Ms. Nolan then the same question. What are the implications for the rights of Americans to be free from governmental intrusions, for Justice Thomas' views to prevail rather than Justice O'Connor's?

CHEMERINSKY: It's an enormously important question. Hamdi was a tremendous victory for all American citizens, because, as you say, the Supreme Court said that before an American citizen can be held as a combatant, there must be due process -- notice of the charges and opportunity be heard, representation by counsel.

There was only one dissent directly to that, and that was Justice Thomas who advances the unitary executive theory, which is the reason why the president should be able to hold individuals without due process.

You asked, what might be the implications of this. Well, the question will be, can the president can engage in electronic eavesdropping in violation of the Foreign Intelligence Surveillance Act, which it's clear what the unitary executive theory would say about that.

Can the president hold an American citizen as an enemy combatant without a warrant for arrest, a grand jury indictment or a jury trial? I can think of nothing more anesthetic over the Constitution but the unitary executive theory would seem to say yes.

LEAHY: Ms. Nolan, what would you say about that? And the professor added this question of, wiretapping outside the Foreign Intelligence Surveillance Act. If you could go to my original question, but also tell me what would you have given as advice to the president of the United States if he said I'm going to bypass, if I said, "I'm just going to go wiretap on my own innate authority"?

NOLAN: Well, here I'm going to show my credentials as a lawyer to the president and say that I'm not exactly sure because we don't know the full contours of the program. So I want to be clear that it's possible that the president could bring something to me that would make me say, "Under these circumstances...


LEAHY: Let's go by what you've seen in the press.

NOLAN: But what I've seen I would say, "You have to follow FISA or you have to go to Congress and get it amended."

LEAHY: And you agree with Professor Chemerinsky that under the unitary form of government we'd be in a much different world if that had prevailed in the Supreme Court rather than Justice O'Connor's view on Hamdi.

NOLAN: Absolutely. And I think the electronic surveillance is a perfect example of this theory going to the next step, which is it's based on this unitary executive theory and the commander in chief power, but the theater or war now is the entire world, including the United States. And the end of the war may be never when we're talking about the war on terror. And so we're not talking about limited emergency presidential powers in a very short period of time.

LEAHY: You're talking about powers being used in my lifetime and your lifetime.

NOLAN: That's correct.

LEAHY: And if I might because time is limited, and I'd like to pursue that because I think you're absolutely right, if we say it's a war on terror, nations that face terror threats throughout their history -- look at Europe, look at other countries -- do we set aside our Constitution on the claim that we may face these?

Professor Tribe, you and I have talked about a number of issues over the years. I appreciate all the help you've given both me and this committee.

I think about last month we passed the McCain amendment that prohibited inhuman, degrading treatment of detainees by U.S. personnel under all circumstances, originally strongly, strongly opposed by the administration. Their polling, the White House polling, and published polling showed not a position sustainable. They worked out a deal with Senator McCain. The president with great fanfare signed this; of course then very quietly issued a statement in effect construing what the law was and exempting or carving out exemption for the executive.

Now, let's say there was a violation brought before the courts in the McCain amendment prohibiting cruel and inhuman and degrading conduct and it came before a court. What weight would a court give? Would the court give an equal weight to the statute overwhelmingly passed by Congress, signed into law by the President? Would it give equal weight to that as they would to this signing statement which carved out exceptions to the law signed by the president?

TRIBE: Senator, under current law, a clear majority of the Supreme Court and most circuit courts would say that although in cases of ambiguity the understanding of the president of the law's meaning at the time it's signed might be a factor to consider.

When, as in this case, the law was clear, or as clear as one could be in talking about gradations of methods of interrogation, that the McCain law statute and the Levin-Graham compromise, or whichever way it was sequenced, is the law.

And the statement made by the president of the United States on December 30 of 2005 that this will be enforced by the president only in accord with his power over the unitary executive, a phrase that is constantly used by this administration, and when that was construed to mean that he will decide in his unfettered discretion when the method of interrogation crosses the McCain line and is cruel and inhumane, that will be given no weight.

But there is no way consistent with his expressed beliefs that a Justice Alito could go along with that view. That is under his view, which would be I think quite similar to the view of Justice Thomas dissenting in Hamdi. It is up to the president to decide how he will through his subordinates in the unitary executive branch carry out his authority as commander in chief, especially the authorization for the use of military force.

And it is interesting that when asked by Senator Durbin about the role of the unitary executive theory in Hamdi, which goes directly to the question whether American citizens could be detained indefinitely or made subject to eavesdropping under the broad authority of the authorizations of the use of military force, notwithstanding FISA, he said, "Well, I'm not sure that Justice Thomas referred to the unitary executive theory." Well, in fact, he did. Just read his opinion. He relies heavily on names. He says, "Because the unitary executive must have discretion to decide how to carry out the war, it his views that will prevail.

But it would not be on the theory that the president's understanding of the law trumps Congress' intent. It would rather be on the theory that the president has unfettered power to control the entire executive branch within the reach of his authority.

Now, let me, if I might, just say why this distinction between scope, the reach of his authority, and control is not a coherent one. Yes, it is true that the unitary executive theory would not suddenly add to the executive branch a distinct lump of lawmaking powers. For example, the power that Truman exercised in the steel crisis. The president couldn't suddenly under the unitary executive theory gain the power of eminent domain.

But the president does have the power to disregard acts of Congress that would impinge on his carrying out of an executive function. And under the views that were expressed by Judge Alito in his testimony and the views that were really the underpinning of the unitary executive theory when it was cooked up in a creative storm in the Office of Legal Counsel in the period when Judge Alito was there, the underpinning includes the notion that the president has inherent power over foreign affairs for war making and the executive.

SPECTER: Professor Tribe, we're way over time on this section. If you could wrap up that answer...

TRIBE: It's wrapped up.

SPECTER: ... I want to be deferential to Senator Leahy who has a follow up. This is not a precedent now. Go ahead.

LEAHY: No, no, no. That's OK. Actually, my follow up was going to go into this subject, so I was interested in the answer.

SPECTER: OK. If you're sure.

Senator Hatch?

LEAHY: Thank you.

Thank you very much, Professor Tribe.

HATCH: Well, I have to apologize to this brilliant panel, because I wasn't here. I was down at the Blair House with the chancellor of Germany that I needed to do. And I have respect for all of you.

I just have one question.

Professor Fried, maybe you could assist me with this.

We've had some difference of opinion as to what settled law is in this body. A common question asked is, do you believe Roe v. Wade is settled law or any number of other opinions as well.

Professor Fried, could you explain the difference between settled law and settled precedent, because as I heard both now Chief Justice Roberts and Sam Alito, Judge Alito, they basically both said that they believe that Roe v. Wade and a number of other cases are settled precedents.

Now, I think what I'd like you to do is could you please explain the terms, settled law and settled precedent so that we all understand it once and for all and whether the two witnesses, now Chief Justice Roberts when he was Judge Roberts and Judge Alito, whether they were consistent in their answers on that particular issue?

FRIED: I'm afraid I'm unable to say what the difference between settled law and settled precedent is. I think that came out during the very excellent questioning by Senator Feinstein.

Judge Alito's answers, I think, were admirable.

Chief Justice Roberts answered Senator Feinstein and came up with the statement of settled law/settled precedent. I don't think that there was an attempt to make some distinction between those two concepts. But what he was suggesting that this is something that is so well understood that it would be really extremely disruptive and unfortunately disruptive to overrule it.

Now, this was taken by members of this body and in the press as an absolute commitment how Judge Roberts would vote. I don't believe he meant it as that.

And Judge Alito, to his credit, when he was asked that question was so scrupulous about giving a commitment, which he absolutely must not do and which I don't think any member of this panel would want him to do, to make a commitment, he avoided a formulation which had come to be made the equivalent of a commitment, of an oath that, "I shall never do that." No judge, no person who aspires to be on a court should ever make a commitment about how he or she will vote. I think you all agree with that.

And I think Judge Alito, though it is causing trouble for him and will cause trouble for him, was unwilling to enter that territory because of his very admirable scrupulousness.

HATCH: Well, thank you, Mr. Chairman. I just wanted to clarify that. I think that does clarify that, because that's the way I interpreted it as well. Thank you for answering that.

SPECTER: Thank you, Senator Hatch.

Senator Kennedy?

KENNEDY: Thank you very much, Mr. Chairman.

To come back to this unitary presidency or executive, Judge Alito was asked frequently about his view about this and also about its impact upon the administrative agencies, and he responded during the course of the hearings that the Humphrey executor to Morrison upheld the powers of Congress to create the independent agencies and tried to leave it at that.

Of course, what's enormously interesting was his statement that his dissent in the Morrison case where he took exception to the Morrison, but he says, "But perhaps the Morrison decision can be read in a way that heeds if not the constitutional text that I mentioned at least the objectives for setting up a unitary executive that could lead to a fairly strong degree of presidential control over the work of the administration agencies in the areas of policy making.

So this is his view. We appreciated understanding what the law is, and I think Professor Tribe indicated what he through would be the decision, but this is his view.

And then in his work at the Justice Department at OLC on signing statements -- and I'll include the appropriate paragraph but let me just -- in the issue of Time mentioned his statement here, "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress."

Rather, at least for me, I think for most legislators, a bizarre concept. I thought we were the legislative branch.

But then he continues, "From the perspective of the executive branch, the issue of the interpretive signing statements would have two chief advantages. First, it would increase the power of the executive to shape the law -- increase the power of the executive to shape the law. And, second, by forcing some rethinking by courts, scholars and litigants, it may help to curb the prevalent abuses of legislative history." The question is, are we talking about someone that has a different understanding of the balance between the executive and the Congress and the judiciary in terms of the makings of law? It seems to me that this is an attempt to change that balance and tip it more towards the executive at a time when we have certainly the challenges that are out here before the country to make it fairer, more equitable to deal with the problems and challenges that we're facing in the country in terms of opportunity.

Professor Tribe?

TRIBE: Well, I think I would underscore one aspect of what you were quoting, Senator Kennedy. Those statements that were made by Judge Alito about how he understands and how he believes one could shape the relationship among branches of government after Morrison, which was the decision upholding the validity of the independent counsel law and the decision rejecting the attach on Congress' role with respect to the executive, when Judge Alito made those statements, he was not working for the government, he was not speaking in some other role. He was a judge. He had been a judge of the United States Court of Appeals for the third circuit for about 10 years.

The statement was made on November 17, 2000 to a gathering of the Federalist Society, obviously a group exercising considerable influence with what was then the likely new administration. That was 10 days after the votes were counted in the election of 2000. It was 10 days after now President Bush had declared victory even though the recounts were going on.

So he was speaking to the decision makers who would perhaps decide -- he was already discussed as a possible nominee to the Supreme Court -- who would decide whether he would remain on the third circuit. And he was saying to that group, "I still believe what we were arguing back in 1986 at OLC." He talks about the gospel according to OLC. He says, "I still believe in that gospel." He's speaking as a judge. And he says, "Under that gospel we have a way of getting the president more power." I cannot imagine more direct evidence of where he would come out.

KENNEDY: I'm sorry to interrupt but I have very brief time. Just how would that change the relationship between the executive and Congress?

TRIBE: It would make it much harder for Congress to say, "You cannot interfere with the SEC in the following way. You can't override the directives of the Fed." Even the independence of the Federal Reserve Board, which could be distinguished on grounds that historically monetary control was outside the executive power, but that's shaky ground when you believe in the full unitary executive. In theory, it could take over the conduct of all of the agencies, because there are only three branches of government and they belong in the executive.

KENNEDY: My time's up.

SPECTER: Thank you, Senator Kennedy. The committee's going to break very briefly for the memorial service for David Rosenbaum, which is being held at 10:30 in this building. A number of members of the committee have expressed an interest in going there. I do not intend to stay for the full ceremony and will be back, and others may stay longer. But I just wanted to point that out, and we'll be breaking at about 10:20 or so.

Now, Senator Sessions?

LEAHY: Mr. Chairman, could I just ask unanimous consent to place in the record several news articles regarding this whole issue?

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

Senator Sessions?

SESSIONS: Professor Demleitner, I found your comments insightful from your perspective, as you said, a left-leaning Democrat, and ACLU member and worked at the Criminal Justice Clinic while you were Yale. And you told a story about being with Judge Alito as his clerk and you saw something that concerned you in an opinion and you asked him about it and he took the transcript home that night to read it. Would you share briefly how that come about and what that meant to you as a young law clerk?

DEMLEITNER: Of course. I'd be happy to. Thank you for asking, Senator.

I think it was in the fall of my clerkship, and as you said correctly, I had worked in the prison clinic at Yale and obviously it was representing prison inmates, and so I had a very pro-defense outlook, which I think I still have today. And so clerking for a former federal prosecutor was somewhat, I guess, I was somewhat apprehensive about that.

But from the very first day on, I think Judge Alito made it very clear that he wanted to hear all kinds of arguments. And I was, I think, generally inclined to argue to him that he should vote to reverse convictions.

And there was one particular case that I remember very distinctly. It was a bribery case, and I had read the record, I had read the lower court transcript, and I thought there was some reason why he should vote to reverse. And a lot, I think, other judges would have said, "No, I don't see it," and just left it at that.

He took the entire low court record home, took my memo home, and the next morning when he came back it was very clear he had spent quite a bit of time with it, he had read it, he had digested it, sat me down, explained to me why I was wrong, he was right.

But I was so impressed with it because he didn't just laugh, "This is one of Nora's other theories to set someone free," but he really took it seriously, and he did this with every single case. So I actually wanted to respectfully disagree with Professor Tribe on this issue, because I think collegiality brilliance, listening to others, which Professor Kronman had talked about, are very important on a court that consists of only nine members. Because I think it shows he will be open-minded, he will listen, he always listens, and I think that's very important. And he can be moved.

I mean, I remember writing memos to him and discussing cases with him where I saw this is his position, and he came out of oral argument and came out of the bench meeting with the judges afterward and he had changed his mind. So he's not set, he's not doctrinarian. I think that's important to know about him.

SESSIONS: Well, that's consistent with what his colleagues on the bench have said, that's for sure. And you mentioned the Rybar case. I agree with you on that. In fact, in that case he ruled for the little guy against the prosecutors and the government who wanted to put the man in jail. He threw out the conviction. People have forgotten that in the course of the discussion.

Ms. Nolan, I remember when you served as legal counsel and an opportunity we had to chat, and you point out that you believe it's essential to defend the power of the president to undertake his constitutional assigned responsibilities, whether considering the exercise of his powers under the appointments clause or under the commander-in-chief clause. You had to do that in that position in the Department of Justice.

You note that, "In my view, the executive branch is right to resist inappropriate incursions on its power from the legislative and judicial branches, and we should thus expect that executive branch lawyers will strongly defend executive powers."

Just briefly before we get into some of my questions, Congress is never reluctant to expand its powers and oftentimes to diminish executive power, and it's a constant tension there, is it not, from your perspective? You served under President Clinton.

NOLAN: There's definitely a tension. I do think Congress is sometimes reluctant, but there's definitely a tension.

SESSIONS: Professor Fried, most of us, I think, are not familiar with this idea of unitary executive. I have heard it complained for many years, and I assume this is the genesis of it, that these ABC agencies, these alphabetical entities that are quasi part of the executive branch but nobody can control them, is somehow contrary to our three branches of government concept.

You've served in the Department of Justice, you've been solicitor general, you're now a professor of law. Could you share with us the tensions that might exist and how we might think about these issues?

FRIED: I'd be glad to but only if the chairman will give me the time.

SPECTER: Professor Fried, to the extent you can, would you make it brief, because...

FRIED: I have a talent for making things brief.


Yes. First of all, Morrison v. Olson, the independent counsel case, was the crucial case on unitary executive, and it was my bitter experience to have argued that case and lost it seven to one. I always tell my class that if that had come up later and had been styled Clinton against Starr, I would have won it, because by then it became perfectly obvious what an abomination that independent counsel law was, how it had been misused and how it tore the fabric of our constitutional system.

I think what has been said about the unitary executive in these hearings is very misleading. The unitary executive says nothing at all -- nothing -- about whether the president must obey the law. It talks about the president's power to control the executive branch, that is the subject.

And in this, the unitary executive theory is not an invention of the Reagan Justice Department or the Office of Legal Counsel, it was propounded in the first administration of Franklin Delano Roosevelt who objected to the powers of the comptroller general, who tried to fire a federal trade commissioner and who referred to himself as the general manager of the executive branch. That's the origin of the notion in FDR's administration.

SPECTER: Thank you very much, Professor Fried.

And thank you, Senator Sessions.

I had asked you to be brief because Senator Feinstein wants to question before out break and that is imminent.

Senator Feinstein?

FEINSTEIN: Thank you very much. I'd like to quickly go down the line and ask each witness, which present or past justice do you think Judge Alito will most be like? Please?

Dr. Chemerinsky -- we'll come back -- do you have a view?

CHEMERINSKY: Sure. Your Honor, having read over 200 opinions written by Judge Alito, I think ideologically he's closest on the current court to Justice Scalia, which of course is exactly what President Bush said he wanted in appointing a justice to the court.

KRONMAN: I would name Justice John Harlan who Judge Alito identified as one of his four heroes on the Supreme Court.

NOLAN: I think it's likely to be Justice Scalia, although I think he may be more aggressive on executive power than Justice Scalia has been in all areas.

FRIED: It's certainly not Justice Scalia because he has not sworn allegiance to any of the theology which Justice Scalia has propounded -- never on any occasion. I think it's Robert Jackson.

TRIBE: I only wish it were Jackson or Harlan. I don't know that I accept the question as being directly probative, but...

FEINSTEIN: You don't have to answer if you don't have a feeling.

TRIBE: Well, but I wouldn't mind answering.


I mean, I think he's somewhere between Scalia and Thomas and I could explain the differences, but I don't think he's anything like Jackson or Harlan.

FEINSTEIN: OK. Thank you.

Mr. Fried, I listened to your testimony on Justice Roberts with great interest. In a dialogue you had with Senator Specter, I want to quote what you said. You said, "It is not only," -- talking about Roe, "It is not only that it's been reaffirmed as to abortion but that it has ramified, it has struck roots, so it has been cited and used in the Lawrence case, in some of the opinions in the right to die cases, in the Troxel case, which is the grandparent visiting rights case. So it's only that it's there and it's a big tree, but it is ramified and exfoliated, and it would be an enormous disruption so you not only get branches, you get leaves."

And then you sent on to say, "Since I don't know Judge Roberts except most casually and I certainly have never discussed it, if you want a prediction from me, I would predict that he would never vote -- no not never but he would not vote to overrule it for the reasons that I have given."

Would you make the same prediction about Judge Alito?

FRIED: I would, and I should say that after Judge Alito left my office, which was late in 1985, I think I've spoken to him three times and then maybe 15 words, so it's a guess there as it was with Roberts. But, yes, that would be my prediction.

FEINSTEIN: Thank you. Now, my question of anyone who would care to answer is about the value of a presidential signing statement. If it is true, and it is, that the legislature passes legislation, makes findings of fact, that legislative intent is generally based on those who formulate the legislation and pass it, does a presidential signing statement shape the law?

FRIED: I think that this has been much misunderstood here too. The presidential signing statement initiative, which I was involved in, I must say, was principally devised to curb the abuses of legislative history and legislative reports in which staff often -- and I'm afraid we continue to see that -- with the assistance of outside groups and lobbyists, different groups, different lobbyists, but with their assistance plant little stink bombs in the legislative history which then flower in later litigation.


And the point of the signing statement was, if you like, a kind of Airwick against those stink bombs.

FEINSTEIN: Senator, you have aroused the staff.


TRIBE: Could I just say, stink bombs, there aplenty. There are plenty of -- there may be a lot of staff-oriented stink bombs but the power to inject a poison pill in the legislation is what we see in the signing statement initiative. That is, whatever was the original intent under Charles' tutelage, what's happened under the current administration is totally different.

There are something like 100 examples now of references in these signing statements to the unitary executive, and they are being used, they're being used to give the president the kind of control that not only FDR but all the way back to George Washington you can find examples of presidents saying, "I am the president, this is my government."

But it is a big fallacy to say, as my friend Charles Fried did, that this has nothing to do with the power of Congress. Congress often enacts legislation to structure the executive branch and to limit the power of the president or the head of the branch to tell the limbs of that tree that Charles described and the leaves exactly what to do.

FRIED: That's correct.

SPECTER: Thank you very much, Senator Feinstein.

FEINSTEIN: Thank you very much.

FRIED: Professor Tribe's right about that last point.

SPECTER: We're going to adjourn for a few minutes.

COBURN Senator Specter, I will defer my questions so that we will not have to have the panel come back, if that would be OK, and I will submit some questions...

SPECTER: Well, you're entitled to your round.

COBURN: But I think in all courtesy to our distinguished panel, this would release them and I will be happy to submit some questions for the record.

SPECTER: All right. We will proceed in that manner at your suggestion.

As I have said earlier, the New York Times reporter, David Rosenbaum, is having -- a memorial service is being held for him. He was brutally murdered on the streets of Washington very recently, and we will recess for just a few moments, and I'd like the next panel to be ready and the senators to be ready.

We stand in brief recess.


SPECTER: Our hearing will resume. The first witness on our next panel, panel five, is Mr. Fred Gray, senior partner at Gray, Langford, Sapp, McGowan, Gray & Nathanson, veteran civil rights attorney with an extraordinary record of representation.

At the age of 24, he represented Ms. Rosa Parks whose involvement in the historic refusal to give up her seat on the bus to a white man is so well known. That action initiated the Montgomery bus boycott. He was Dr. Martin Luther King, Jr.'s first civil rights lawyer.

In 2004, Mr. Gray received the ABA Thurgood Marshall award for his contributions to civil rights. A graduate of Nashville Christian Institute, Alabama State University and Case Western Reserve.

Thank you for joining us, Mr. Gray.

I haven't had an indication from Senator Leahy about whom they'd like extra time to, but my sense is that you'd be on the list, so we're going to set the clock at 10 minutes for you. You may proceed.

GRAY: Thank you very much, Mr. Chairman.

SPECTER: By way of explanation, the judges talked longer yesterday and I thought it appropriate not to interrupt them and want to give the extra time to this panel.

If Senator Leahy comes in and cuts you off, Mr. Gray, just remember I gave you 10 minutes.

GRAY: Thank you very much, Mr. Chairman.

And to my senator, Senator Sessions, who represents us well in the Senate, to the other members of the committee, of course I am Fred Gray. I live in Tuskegee, Alabama with offices there and in Montgomery. I appreciate this committee inviting me to appear. I consider it an honor.

For over 50 years, I have filed almost every imaginable type civil rights case in Alabama. Many of those cases have resulted in Supreme Court rulings and many of them precedent-setting cases in which the court declared unconstitutional certain state and city ordinances, including in the field of registration and reapportionment.

As one who has been in the trenches, and still is in the trenches, I appear today to attest to the tremendous importance of the reapportionment cases. Those cases decided by the Warren Court, one of which I actually litigated and was my brainchild, the case of Gomillion v. Lightfoot

I am still troubled, extremely troubled by Judge Alito's comments made in his application, notwithstanding the testimony before this committee. The reapportionment cases decided by the Warren Court made certain that the federal courts had the power to ensure that voting rights were meaningfully protected. These rights had been violated by many of our states since reconstruction.

The cases illuminate the inequities of male apportionment which deprived African-Americans of voting strength across the nation. In my view, there is no more important body of law than that generated in the field of voter registration and in civil and human rights.

African-Americans in Alabama and other southern states for years, even before Browder v. Gayle, which is the case that integrated the buses and which was a unanimous case of a Warren Court, were actively working toward obtaining the right to vote.

For example, in my hometown now, Tuskegee, Alabama, the home of Tuskegee University where Booker T. Washington was its first president, where George Washington Carver made many of his scientist discoveries and the home of the Tuskegee Airmen, African-Americans in that county filed lawsuits as far back as 1945 in order to obtain the right.

After years of litigation, when we were finally able to get approximately 400 African-Americans registered for an upcoming municipal election, in 1957 the Alabama legislature passed a law which changed the city limits of the city of Tuskegee from a square to a 626-sided (ph) figure, excluding all but three or four African- Americans and leaving all the whites in the city.

And then the state said, "We're not denying you the right to vote, we are simply changing the political boundaries of the city of Tuskegee and you can't vote now in the city elections because you're not longer there." I thought that was wrong, and so did the Supreme Court. We filed a case of Gomillion v. Lightfoot.

That case substantially strengthened the law in securing the right to vote for African-Americans. The Gomillion case was the first significant reapportionment case decided by the Warren Court. In a unanimous decision, the court held that the boundary change violated the 1Fifth Amendment. Just as importantly, the court rejected the argument that impairment of voting rights could not be challenged in the face of a state's unrestricted power to realign its political subdivisions.

The court stated, "When a legislature does single out a regular isolated segment of a racial minority for special discriminatory treatment, it violates the 1Fifth Amendment." Apart from all else these considerations lift the controversial out of the so-called political arena and places it into the conventional fear of constitutional litigation. There is no question in my mind, but it gave rise, Gomillion v. Lightfoot did, to the other subsequent cases you have heard about, great reapportionment cases, Baker v. Carr, Gray v. Sanders, Reynolds v. Sims.

I cannot overstate to this committee the importance of these cases for they laid the foundation for our democracy. The reapportionment cases enshrined the principle that every citizen has the right to an equal, effective vote rather than the right to simply cast a ballot. State legislators could not dilute the vote of racial minorities by perpetuating unequal voting districts. And most importantly, the reapportionment case also established principles for challenging at- large and multi-number electoral systems enacted by many of the southern states after the passage of the Voting Rights Act.

When I filed the Gomillion case we had very few African-Americans who were registered to vote and had no legislators. I was one of the first two in 1970.

Now, Alabama has, and across the nation, there are over 9,000 appointed and elected officials and they are there because of the result of a Warren Court's decision in Gomillion, Baker, Gray, Reynolds and these other cases enacted by legislation since that time.

So we have these persons serving with honor and distinguished from city council to the Congress.

However, we still need a strong Supreme Court to continue to enforce these laws. I have seen in my home state as fast as we get one law stricken they will enact another. Now that we have a proportionate number of African-Americans in the legislature, we want to be sure that we have a strong Supreme Court that won't permit that to be changed. I respectfully submit and suggest that this committee carefully scrutinize Judge Alito's disagreement with these cases.

A nominee to the Supreme Court who has a judicial philosophy that's set against the Warren Court and against the reapportionment cases is in effect saying that he would turn the clock back. If this occurs, not only would African-Americans lose, the entire nation would lose the great richness of their contribution as we are currently enjoying.

In my opinion, a Supreme Court justice with these views would impede instead of protecting the right to vote.

In conclusion, I submit that the next appointee should favor the protection of voting rights and should strengthen and not weaken the voting rights case law, as developed by the Warren Court.

Thank you very much, Mr. Chairman.

SPECTER: Thank you, Mr. Gray. And thank you for your remarkable service on civil rights and voting rights. Your listing of cases and listing of clients is enormously impressive, and it's been a great contribution to America.

GRAY: Thank you very much, Mr. Chairman.

SPECTER: We turn now to Ms. Kate Michelman, who for 18 years, up until 2004, was president of the National Abortion and Reproductive Rights Action League, more properly known as NARRAL Pro-Choice America. Prior to joining NARRAL in 1985, she was executive director of Planned Parenthood in Harrisburg, Pennsylvania where she expanded the range of reproductive health services available in the area. She also trained medical students and residents in child development as clinical assistant professor in the Department of Psychiatry at Pennsylvania State University School of Medicine.

And it's worthy of brief comment that we two Pennsylvanians have had many discussions on this issue at the same health club. Remarkable what the health clubs will do.

MICHELMAN: Miss you.

SPECTER: What's that?

MICHELMAN: I said we miss you over there.

SPECTER: Well, they don't have a hardball squash court.

MICHELMAN: Oh. I know that's a big mistake on their part.

SPECTER: And I had to change health clubs except for the Senate gym where I see Senator Kennedy.


We're going to put your time at...

KENNEDY: Should we take up on that?

SPECTER: We're going to put your time at 10 minutes, Ms. Michelman, and we look forward to your testimony.

MICHELMAN: Thank you, Senator.

Mr. Chairman and Senator Leahy, who is not here, and members of the committee, it is my pleasure to talk with you today, and I must say I am deeply honored to be sitting next to this great man, Mr. Gray.

Certainly, for many days we have heard many legal experts and constitutional law theorists, but I think the voices of real people whose lives will be affected by the potential confirmation of Judge Alito have been absent from this discussion, and I am here as one woman among millions whose lives could be indelibly shaped by the confirmation of this judge.

In 1969, I was a young stay-at-home mother of three little girls, a practicing Catholic who had accepted the church's teachings about birth control and abortion. The notion that abortion might be an issue I would face in any own life never ever occurred to me until the day my husband suddenly abandoned me and our family.

In time, with nothing to live on, we were forced onto welfare. Soon after he left I discovered I was pregnant. After a very long period of soul searching, of balancing my morals and religious values about the newly developing life with my responsibility to my three young daughters, I decided to have an abortion.

I might add, Mr. Chairman, that of the countless women I have encountered throughout my life, not one has made a decision about abortion without first contemplating the gravity of that choice. Not one needed the tutelage or supervision of the state to understand her own ethical values, much less to be reminded to consult them. And every single one of them deserves the respect and protection afforded by Roe v. Wade.

Now, because all of this occurred prior to Roe, I was legally prevented from acting privately on my decision. I was compelled to submit to two interrogations before an all-male panel of doctors who probed every aspect of my private life, from my sex life with my husband to whether I was capable of dressing my children.

Eventually they gave me their permission. I was awaiting the procedure when a nurse arrived to tell me that state law imposed yet another humiliating burden: The government required me to obtain my husband's consent. I was forced to leave the hospital, find where he was living and ask him to give me his permission.

Now, this was incredibly humiliating and an experience that awakened me to a lifetime of activism. And I tell you this story not to get your sympathy. I tell you this story because this nomination poses a real threat that women will once again face the dreadful choice between the degradation of the review board and the danger of the back alley. And this is neither hyperbole nor hype. It is the simple demonstrable reality of the situation.

Predicting how any given judge will decide any given case is a Washington parlor game, in my view, that distracts from the central issue. That issue is whether we any longer will recognize limits on the government's authority to reach into the most intimate areas of our private lives.

There is nothing in Judge Alito's lengthy public record to suggest that he recognizes such limits for anyone and even less so for women. And there is much in his record that indicates, I think clearly and beyond the boundaries of reasonable dispute, that he rejects the idea of privacy, personal privacy as a fundamental American ideal.

A women's right to choose is a powerful manifestation of privacy, but it is one right among many, and all of them should concern us.

There is no sense in Judge Alito's writings or rulings that privacy is a fundamental constitutional right. In his record, not only are individuals often powerless against the prerogatives of the state, individuals are more often than not simply absent all together. In many ways, what Judge Alito has written is less disturbing than what he omits: Any sense of how his legal rulings bear on real people whose lives are shaped by his decisions.

When he ruled that a Pennsylvania law requiring women to notify their husbands before obtaining an abortion was not, quote, "an undue burden," there was no sense that a woman like me ever existed or even mattered. When he wrote that commonly used methods of birth control could be classified as methods of abortion, there was no indication he considered the women who would be forced into unwanted pregnancies.

His writings contain ample venerations for the state but I think place little value on the individuals whom government exists to serve, protect and respect.

I have been involved in many Supreme Court nominations but frankly none more important than this one, nor as dangerous, for the contrast between Judge Alito and the justice he would replace is quite stark. As the first woman to serve on the court, Justice O'Connor brought a very unique perspective to the law that is evident in her opinions: Upholding a woman's right to choice, protecting women from discrimination and defending affirmative action.

Quite often, you have talked about this a lot, she has been the decisive vote in five to four cases whose balance Judge Alito would now tip the other way.

And here, Mr. Chairman, it is important to note that Justice O'Connor is a judicial conservative who has not always fully protected constitutional rights and liberties, but she crafted opinions that retained meaningful protections for rights that other justices sought to deny completely.

But the most disturbing difference between these two jurists is not simply the conclusions they reach but also how they reach them. Justice O'Connor considered each case with careful attention to what the law means and who it affects for she knows that that is the essence of justice. In Judge Alito's approach to the law, there is neither justice nor regard for women's human dignity.

Judge Alito has parried challenges to his record by promising an open mind and a respect for precedent. We must ask whether this assurance offered only now can be allowed to outweigh the totality of this man's record. Millions of American women whose lives, privacy and dignity have a place in this debate would have to conclude, no.

Thank you.

SPECTER: Thank you very much, Ms. Michelman.

Our next witness is Professor Ronald Sullivan, associate clinical professor of law at Yale. He was a graduate of Morehouse College in 1989 and a law degree from Harvard in 1994. He served for one year in Nairobi, Kenya as a visiting attorney for the law society of Kenya and in that capacity was on the committee charged with drafting a new constitution for Kenya.

We very much appreciate your coming in today, Professor Sullivan, and the floor is yours, and the clock will start at 10 minutes.

SULLIVAN: Thank you very much, Senator Specter and Senator Leahy in his absence, members of the committee. Thank you for inviting me to testify at this very important expression of our democracy.

I've been asked to comment on Judge Alito's Fourth Amendment jurisprudence. Two broad themes follow from his record. First, Judge Alito's Fourth Amendment opinions reveal a clear pattern of privileging government power when it comes into conflict with individual liberties. Indeed, in the 17 opinions that the nominee has authored regarding the Fourth Amendment in his more than 15 years on the bench, Judge Alito has ruled to suppress evidence only once.

The second broad theme is that Judge Alito is a skilled legal writer with a sharp, analytical mind. Almost none of his opinions appears to be a radical departure from accepted jurisprudential conventions. Rather, his constitutional criminal procedure decisions read together demonstrate a pattern that cannot be ignored. In over 50 constitutional criminal procedure cases that I have reviewed, Judge Alito ruled in the government's favor over 90 percent of the time. To borrow an old phrase, "As the government goes, so goes Judge Alito" in the criminal law context.

But the point I make here is more than a mere statistical correlation. I want to make a deeper and more substantive point: Judge Alito's tendency to privilege government power in the criminal context represents a failing in his jurisprudence for the following three reasons.

Number one, Judge Alito's criminal law corpus demonstrates a judicial philosophy that improperly subordinates privacy, dignity and autonomy concerns to the interest of government.

Number two, even when the government undeniably violates the Fourth Amendment, Judge Alito employs legal rules to excuse the government for its misbehavior.

And, number three, Judge Alito shifts from a strict constructionist to an activist jurist at times when the government interests so dictate.

Let me briefly address each of these propositions in turn and of course I give much greater detail in my written statement.

First, privacy and dignity concerns. Groody against Doe has been discussed all week, and I assure you I shall not be redundant. Let me simply invite the committee to read my comparison of Groody with another one of his cases: Leveto against Lapina.

In Groody, Judge Alito was only able to muster up one clause, not even a full sentence, giving voice to the highest, the highest order dignity concern involved or implicated in the strip search of a 10- year-old girl.

Compare this to Leveto, a tax evasion case involving the search of a wealthy veterinarian and his spouse who was wearing a nightgown, where Judge Alito devotes four entire pages of text to express the, quote, "indignity," and, quote, "stigma," concerns associated with the illegal search.

In no other, I repeat, no other Fourth Amendment case that Judge Alito authored did he spend even a fraction of the time expressing the dignitary objections that he did in Leveto.

One is force to wonder whether Judge Alito has a more robust appreciation for the privacy and dignity concerns for the wealthy or the class of individuals typically charged with tax evasion or crimes of that sort.

Now, in the area of what I've characterized as excusing governmental misbehavior, frequently uses the good faith exception or the qualified immunity doctrine to cure an otherwise illegal search. Indeed, in nearly one-third of his Fourth Amendment cases, Judge Alito excuses the government's unconstitutional invasion of our privacy.

Now, the insidious effect, the on-the-ground effect of the heavy reliance on the good faith exception or the qualified immunity exception is that the exceptions tend to swallow up the rule. This gives government officials the perverse incentive to knowingly violate the constitutional rights of our citizens, because no practical consequences follow.

So Judge Alito's rulings will take the following form. There was no substantive violation of the Fourth Amendment, therefore conviction affirmed. Or, yes, there was a substantive violation of the Fourth Amendment, as in the Leveto case. And it was a horrible violation. But even though there was a violation, I am going to interpose the qualified immunity defense, and the government is therefore shielded from civil liability. And this form of argument can be seen throughout his jurisprudence.

Now, to the strict constructionist argument. Judge Alito is praised by many as being a true conservative jurist, a strict constructionist, and that proposition has been almost assumed as I've listened to the hearings this week. But that he is a strict constructionist is not true all of the time. A review of his entire criminal law jurisprudence demonstrates that Judge Alito shifts his interpretive style when necessary to rule in accord with the governments interests.

Two of Judge Alito's opinions illustrate my claim: Sandoval against Reno and U.S. against Blake.

In Sandoval, Judge Alito employed a literalistic and plain-meaning construction of the relevant statute to limit the scope of a defendant's right. There is a very technical habeas issue that I won't go into, but, essentially, Judge Alito cited the caption in the relevant statute, in bold letters, in all caps twice, and said, "This is all we have to look at. This answers the question to congressional intent and that is within the norm of judicial reasoning for a strict constructionist."

It uses this interpretive style to limit the scope of a defendant's right, but in Blake he shifts his interpretive style and uses a broad, liberal even, statutory construction to augment the scope of government power.

More specifically, in Blake, Judge Alito found that a car located the functional equivalent of a city block away from its owner and out of its owner eyesight was nonetheless in the, quote, "presence of the owner." To do so, Judge Alito relied on a ninth circuit, it's a ninth circuit Court of Appeals ruling to articulate a remarkably broad definition of presence. This sort of shifting jurisprudence begins to look like it's result-driven and not restrained in the jurisprudential tradition in which Judge Alito positions himself.

We are living in a moment where the executive is making extraordinary claims of authority to conduct investigations of U.S. citizens. The delicate balance between liberty and safety that the framers fought so hard to erect and that their successor generations fought so hard to maintain needs our continued vigilance to sustain.

In the United States, perhaps no right is regarded as more sacred, more worthy of vigilant protection than the right of each and every individual to be free from government intrusion without the unquestionable authority of the law.

Judge Alito, on my read of his constitutional criminal procedure opinion, shows an inadequate consideration for the important values that underwrite these norms of individual liberties, the very norms upon which this constitutional democracy relies for its sustenance. This committee and this committee's decision on whether to consent to Judge Alito's nomination will have a profound impact on how liberty is realized in the United States.

In addition to Judge Alito's constitutional criminal procedure decision, I have reviewed nearly 415 of Judge Alito's opinions under both the auspices of the Alito project at Yale where a number of my colleagues and I reviewed all 415 of his opinions and under the auspices of the Jamestown project at Yale where I serve as a senior fellow. While I haven't studied in detail all 415 of his opinions, and I should say the opinions that he authored which I found to be most instructive, I find this tendency to be consistent with other areas of the law as well.

That said, I would like to thank the committee for the opportunity to share my remarks with you, and I look forward to answering any questions that the committee may have.

SPECTER: Thank you. Thank you very much, Professor Sullivan.

We now turn to Professor Amanda Frost, assistant professor of law at American University's Washington College of Law. She is a graduate of Harvard College in 1993 with a bachelor's degree and a law degree from Harvard Law School in 1997. Her areas of specialization include civil procedure in federal courts, the author of several law review articles. As staff attorney for the Public Citizens' Litigation Group, she litigated cases before the United States Supreme Court and federal courts of appeals. She was a consultant for the Shanghai municipal government in drafting open government legislation.

Thank you for being with us today, Professor Frost, and we'll set the clock at 10 minutes for your testimony.

FROST: Thank you.

Mr. Chairman, Senator Leahy and members of the committee, I feel honored to have the opportunity to testify at these important proceedings.

My comments today are about reforms that are needed and the procedures and practices that govern recusal of federal judges. Your consideration of Judge Alito may be affected by your views about whether he should have recused himself from certain cases while sitting on the United States Court of Appeals for the third circuit. That is why I wanted to discuss with you today certain problematic recusal practices that too often have led federal judges into situations in which their recusal decisions undermine the public's faith in the judiciary.

Because the reputation of the judiciary is affected as much by the appearance as the reality of bias, Congress has enacted a statute, 28 USC section 455, that provides, quote, "Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

By using this language, Congress sought to ensure that even when a judge is a certain that he or she could be impartial, that judge must step aside if members of the public might reasonably disagree. In essence, the law requires to recuse even in borderline cases in which the possibility of bias or the appearance of bias is slight.

Now, I think this is a good standard, but a key problem with the statute is that it contains no procedural mechanisms to govern the recusal decision. It does not say how the parties are to seek recusal, it does not say how evidence about a judge's potential biases or conflicts are to be shared with the parties, it does not clarify who should make the recusal decision or whether that person should articulate any reasons for making that decision.

So, for example, Supreme Court justices recuse themselves in dozens of cases a year, and they almost never explain why they are doing so. When a party files a motion seeking a justice's recusal, which is a rare event and something that most parties would be reluctant to do, there is no formal process through which the entire court considers and decides that motion. Instead, it's sent to the one justice whose impartiality is being questioned and that justice makes the decision on his or her own often without explanation.

This procedural vacuum has, I believe, cause for recurring controversies over judges' failures to recuse. Controversies that undermine the very goal of section 455 to protect the integrity of the judicial branch.

So I want to give just a few examples of some of the recusal problems that have occurred over many years. In 1969, Supreme Court nominee Clement Haynsworth, failed to be confirmed for that position, in part due to revelations that while sitting on the fourth circuit he had sat on a number of cases in which he had a small financial interest.

In 1972, then Associate Justice William Rehnquist, was criticized for sitting and hearing a case that he commented on publicly while he was in the Department of Justice.

In 2004, most of us remember Justice Scalia made a controversial decision not to recuse himself from a case in which Vice President Cheney was a party, despite having vacationed with the vice president shortly after the Supreme Court had agreed to hear the case.

And them most recently Judge Samuel Alito has been questioned by this committee for his failure to recuse himself from a case in which Vanguard was a party, despite the fact that he owned mutual funds with Vanguard and had stated in his 1990 Judiciary Committee questionnaire that he would recuse himself from all such cases.

Now, whatever one's views are about whether the individual judges and justices in these examples should have recused themselves, and I recognize there's differences of opinion on that, but whatever your views are I think most would agree that the process by which that decision was made did not work to foster public confidence in the judiciary.

These problems of the recusal law are particularly evident and disturbing at the Supreme Court level. When a district court judge or a circuit court judge fails to recuse themselves, that decision may be reviewed by a higher court. As I said, when a Supreme Court justice faces a question of recusal, the justice makes the decision on his or her own and there is obviously going to be no review of that decision, there's no higher court.

Furthermore, the stakes are simply that much higher at the Supreme Court, which hears the most divisive and important cases and which sets the law for the nation.

And, finally, the Supreme Court is the public face of the judiciary, and because of this their recusal practices are more likely to have a negative effect on the public's perception of the judiciary.

I propose a series of procedural reforms that could be made either by the justices themselves in a rule or by Congress by amending the recusal law. First, there should be more transparency. Judges should be required to inform the parties and the public of any information that would be relevant to the recusal question, even if they don't think recusal is required. The parties should be given full information and the public as well.

Second, when judges do decide to recuse themselves they should at least issue a brief explanation explaining why. That would provide a body of precedent to guide future litigants and judges facing these difficult recusal situations.

And, third, when a judge does not decide or does not think it's clear that he should recuse himself, that judge should turn that decision over to his colleagues or at the very least consult his colleagues rather than make the decision on his own.

With these reforms in place, I think we would better protect both the reputation of the judiciary and of the judges who serve the public.

Thank you for inviting me to share my views with you today.

SPECTER: Thank you very much, Professor Frost. We now turn to Professor John Flym, professor of law at Northwestern. He has taught professional responsibility and advanced criminal procedure. He served as counsel to Ms. Shantee Maharaj, the plaintiff in the 2002 case where Judge Alito ruled in favor of the Vanguard Mutual Fund. He has his bachelor degree from Columbia in 1961 and his law degree from Harvard.

Thank you for agreeing to be a witness here today, Professor Flym, and we look forward to your testimony.

FLYM: Thank you, Mr. Chairman, Senator Leahy, members of the committee. I am honored to be before you today.

I'd like to make one correction, if you please. It's a common error, but I have taught at Northeastern University, which is in Boston.

I am indeed the lawyer who challenged Judge Alito's failure to recuse in the Maharaj case, the Maharaj-Vanguard case.

What I would like to do now is to address three points, one of which was particularly addressed by Senator Hatch yesterday in his questioning of John Payton, the ABA federal circuit representative. Does the law require Judge Alito to recuse given his investments in Vanguard?

Now, my colleague, Amanda Frost, addressed provision A of the statute, which speaks in general terms and speaks with general principles based on the appearance. A judge shall recuse if someone could reasonably question the judge's impartiality. Section B, however, is the applicable provision.

Section B doesn't speak to general propositions; it speaks to specific propositions. Among them, b(4) says that a judge shall recuse if the judge has a financial interest in a party to the case. It then goes in subsection D to define what financial interest means, and it says that financial interest means a financial interest however small, and then it goes on to list the various exceptions.

Now, Judge Alito, in his answers filed in the questionnaire which he submitted to this committee, relies on the third exception in Subsection D, the one which plainly has nothing whatsoever to do with mutual funds; it has to do with interests, for example, in insurance policies.

The one exception that does address mutual funds is the one raised by Senator Hatch, but it says the opposite of what Senator Hatch suggested yesterday. It says that one of the exceptions is an investment in a mutual fund shall not be regarded as a financial interest in the securities held in the fund's portfolio.

Now, that's an obvious proposition. It has nothing whatsoever to do with simply saying that investment in mutual funds doesn't qualify as an interest, a financial interest within the meaning of subsection B, because if it did, Congress would simply have said in the exceptions that financial interest doesn't include an investment in a mutual fund. That's what the statute says.

Now, the statute goes back to 1974. It would be astonishing if there weren't interpretations case law of the statute. There are lots of interpretations. The second circuit in 2002, that is the year before Judge Alito wrote the December 10 letter to Judge Scirica saying, "After I received the November 2003 motion that I should have recused myself, I reviewed the law and having reviewed the law I concluded that the statute doesn't require me to recuse. But nevertheless, I'm going to do that so that you can appoint a panel to consider the pending motion." He did not recuse from the case -- a more important detail than might otherwise appear.

Now, in his statement to this committee, his reliance on the third exception for insurance policies is unexplainable. It is incoherent, it has nothing whatsoever to do with mutual funds. The first exception, with due respect to Senator Hatch, says the opposite of what the senator suggested yesterday. It says mutual funds do count as financial interests. They simply do not include investments that the fund makes in the securities, that is the securities which are listed in the fund's portfolio.

Now, I, like everyone else, have been enormously impressed by all of the testimony, particularly his colleagues and everyone who's worked with Judge Alito, that he is a brilliant man, that he studies the law very carefully, that he pays particular attention to the arguments presented to him because he's a fair-minded man.

Now, at the time that he wrote this letter he had the benefit of the motion which included everything that I've just told you including the case law and the analysis and a lot more. It is inconceivable to me that he could have made the statement that he made in his letter to Judge Scirica and in his questionnaire to this committee.

I will now move on to a second point. The second point is part of what he testified to. He said that he is -- and I think this was in response to a question by Senator Kennedy, "I am one of those judges that you described who takes recusal very, very seriously." Is that a credible statement?

He also says that it's never crossed his mind that there was a recusal issue when he looked at the Vanguard case. The name, Vanguard, is plastered all over the documents. We're talking about literally dozens and maybe hundreds of references to Vanguard, including in the opinion that he himself authored.

He made a pledge to this committee in 1990, which I assume he did after reading and understanding what the 1974 recusal statute said. He continued to invest in Vanguard over the years and watched his investments grow into the hundreds of thousands of dollars. I've heard estimates that run way beyond the $370,000 which have been mentioned here. And while he was sitting on the appeal in the Vanguard case, he continued to make investments, both before and after the appeal.

Now, I would like now to move to the third point, which I consider to be perhaps most important, in a sense -- not most important but just as important. I spent 40 years of my professional life representing the little guy. My client, Ms. Maharaj exemplifies the little guy. She has nothing, not one penny. All she had was the IRA, which by law passed to her at the death of her husband in 1996. Now, that IRA is supposed to be sacrosanct. The Supreme Court has held in a trilogy, beginning of Gidri (ph) in the '80s, Patterson in '92 and most recently Rousey in 2005 that creditors can't reach IRAs.

Now, justice has been suggested with respect to how the Roe decision may be undone through small, creative exceptions through that ruling. Likewise here, what the judge did, and I'm confident that he did read the record and that he understood all too well what was at stake, was go out of his way on the most dubious of legal principles to rely on a supposed decision of the Massachusetts court which in fact is on appeal. I argued the appeal in October. There is no decision yet. We don't know how the Massachusetts court will decide, but all of the law which I set out in my motion makes it clear that he had no business relying on that Massachusetts decision.

What that means is that with respect to IRAs only, never mind the other funds, retirement savings, 40 plus million Americans with their savings in IRAs, with more than $2.3 trillion in those IRAs could see the security in what they thought were sacrosanct savings beyond the reach of any creditors, no qualification as the Patterson court said in '92, all of a sudden threatened, that the employees of IBM suddenly woke up to discover that their pensions were pretty much smoke and mirrors.

Thank you very much, members of the committee. I realize that I spoke with some passion. I promised myself to be calm and collected, but I confess that but for the fact that President Bush nominated Judge Alito no one would ever have heard of Ms. Maharaj or the Vanguard case and Judge Alito's role in it. Thank you.

SPECTER: Thank you very much, Professor Flym.

Mr. Gray, beginning my five minutes of questioning with the issue of voting rights, which you have testified about so eloquently, are you at all comforted by Judge Alito's statement that the principle of one person-one vote is firmly embedded in the law of the land, and he will follow that?

GRAY: Well, I'm still troubled by the fact. I'm glad to hear that. And if what that means is that if he is confirmed, he will be the type of justice protecting civil rights and human rights that Hugo Black did when he was on the court, then I would be happy to have him serve.

But I don't remember and I think the first time I recall that he made this statement is after it was raised in these hearings. I would think if he was sincere about it, realizing what he had said in 1985, that he would have disclosed the fact that, "I said that then but my position now is entirely different" and would have been rather candid upright before the matter was raised.

I'm troubled that we would even have a nominee who would have to explain this, because if these rights are so embedded, then there should never have been any statement the way it was in the first place.

SPECTER: Ms. Michelman, on the Roe issue, which is a matter of enormous importance -- I started my questioning of Judge Alito with that subject as I did with Chief Justice Roberts -- and you have the examples of Justice O'Connor who was against abortion rights before she came to the court and Justice Kennedy against abortion rights and a lot of worry about Justice Souter, and you have the political process where the judicial appointments are part of the process, and you heard Judge Alito talk about the precedence and the culture of the country and being embedded and a living document, which is very different from what some others have testified to in recent times.

You watch this situation very closely and you've noted who some of the other prospective nominees, at least reported. If Judge Alito is rejected, what do you think the prospects are of getting a nominee whom you like better?

MICHELMAN: Well, Senator, it is true that the president won the election and he has the right to nominate justices who share his values and his views, who made it very clear that his model justices were Scalia and Thomas, whose views about women's constitutional legal rights, including the right to choose, are a danger to American women and to their lives and their health and their dignity. So he has the right, but you share a coequal responsibility and the American public, the individuals in this nation, have only a voice in this process through you.

And I would answer you by saying that I think every nominee has to be evaluated on his or her merits, on his or her record, on his or her views, judicial and philosophical views included, and we have to take one at a time. And if that nominee's record is clearly a danger to the constitutional and fundamental right of the American people, then I think that nominee should be defeated and we'll take on the next one.

But I think the president has made his case on this nomination. I think Judge Alito's record -- and if you look at the totality of his record, his service in the Justice Department, his service on the court, it is very clear that he will move the court in a very different and dangerous direction for women's legal rights.

SPECTER: I want to ask you one more question, but my time is almost up. You have commented about the other issues philosophically. You haven't enumerated them but we've been over legislative power, we've been over congressional power, affirmative action, many items. Do you think that a nominee ought to be rejected on the basis of a single issue?

MICHELMAN: I don't consider the right to privacy, personal privacy, the right to dignity and autonomy and control over one's life as a single issue. I do think it is profound and will have enormously important implications for women, for men, for families in this nation, and I do indeed think it is so serious and profound that he should be rejected on those grounds, even if there were no others and I would describe there are other grounds.

SPECTER: Well, thank you very much...

MICHELMAN: You're welcome.

SPECTER: ... for your testimony, Ms. Michelman, and for your service. You have been in the forefront of this issue for a long time, and I know how deeply you feel about it, and I thank you for sharing with us your personal experiences. They're not easy to testify about.

Senator Leahy?

LEAHY: I would concur with that. I thought of that prior to your testimony in reading the article about you yesterday in the Post -- a story I was familiar with, and you're one of the reasons I came back. I'm at a friend's memorial service and will return to that right after my questioning.

But you're absolutely right that there's an awesome responsibility in the Senate in the choice, first with the 18 of us here who are the only 18 people in America who got to question Judge Alito if you don't count the first vetting they had by Vice President Cheney, Karl Rove and Scooter Libby a day or two before he was nominated by the president. That, of course, we're not privy to what was said or what assurances were made, nor was he about to share that with us.

Mr. Gray, I'm glad you are here. You spent a lifetime, a very distinguished lifetime, fighting for those denied the right to equal protection, equal dignity. I know that after you graduated law school you immediately went to work defending two icons of America: Rosa Parks and Dr. Martin Luther King, Jr., the Montgomery bus boycott.

We've heard Judge Alito say that one of the things that motivated him was his objection to Baker v. Carr, the reapportionment case. We heard Justice Frankfurter who delivered a scathing dissent in that, and we know the position of the Second Justice Harlan who Judge Alito admires and feels very strongly that Baker was wrong.

How important was it that the Supreme Court didn't follow Justice Harlan's lead and instead intervened in the 1960s to correct massive disparities in the size of voting districts and the underrepresentation of voters from urban areas, removals of poll taxes and other barriers to minorities to vote?

What is the difference it makes in America today that the dissenters did not win?

GRAY: The difference is then prior to these decisions, and even prior to Brown v. Board of Education and prior to Gomillion v. Lightfoot and Browder v. Gayle, a case that desegregated the buses, we had very few African-Americans and other minorities registered. We had little or no African-Americans to public office.

For example, in my state, in 1967, we had none. Now, my state has approximately the same number of persons in our state legislature; it mirrors the population. We now have thousands of African-Americans and other minorities who are holding public office and an additional thousand that those public office holders have appointed to elected office.

LEAHY: When you first started this fight did you ever believe you'd see an African-American mayor, an African-American sheriff in some of those guys?

GRAY: No, sir. And the first one since reconstruction was Lucias Ameson (ph) in my county. I got him elected, but I couldn't get elected to the state legislature.

LEAHY: That's why I raised that. You anticipated what I was raising.

And, Ms. Michelman, you know about the job application of Judge Alito at the Justice Department. He said he personally believed very strongly the Constitution does not protect right to an abortion. In your reading of Judge Alito's writing but especially your observations in the past few days in these hearings, have you seen or heard anything to reassure you that Judge Alito's personal beliefs about constitutional privacy will not affect his issues as a judge?

MICHELMAN: No, I haven't. In fact, I don't think there's -- again, if you go back to his -- you're referencing the work he did in the Justice Department and his record on the court. His decisions on the court I think reveal very clearly that he does not believe deeply in a fundamental right of privacy and applies that belief that the Constitution protects that fundamental right of privacy to individuals.

So, no, I'm not. I am deeply concerned that Judge Alito not only was proud and discussed very openly how proud he was to be a part of an administration that repeatedly sought the court to overrule Roe and overrule other privacy cases but that he actually laid out a strategy for the administration to pursue the overruling of Roe in an incremental strategy, to pursue taking away the right of women to decide for themselves, keep the government out of these very private decisions. He laid out a strategy that you could keep Roe in place as a shell, not overturn it directly, but incrementally dismantle those rights.

And the states, by the way, have -- the anti-choice movement in this country has pursued that strategy very effectively, and there are now hundreds of laws that really burden women, both financially and emotionally, when they're trying to make responsible choices. No, I have no confidence at all that Judge Alito when faced with the question of whether women should decide or whether the government, state and federal, has the right to interfere in these intimate decisions that women make, that he will come down on the side of the government.

LEAHY: My time is up. I just want to thank all...

MICHELMAN: Thank you.

LEAHY: ... five of you for being here. I know that it is not easy to come and very publicly oppose somebody who has the backing of the president of the United States and backing of so many powerful senators to be on the U.S. Supreme Court, but it goes to tradition and speaking truth to power, and I thank you all.

SPECTER: Thank you, Senator Leahy.

Senator Hatch?

HATCH: I think I'll reserve my time, Mr. Chairman.

SPECTER: Senator Kennedy?

The transcript continues in Part II.

© 2006 The Washington Post Company