U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
Friday, January 13, 2006; 12:45 PM
The transcript picks up with Sen. Kennedy. Return to Part I.
KENNEDY: Thank you. Five minutes, a number of areas to cover.
First, thank all of you for being here.
Dr. Gray, in the application, the 1985 application and where the nominee points out, "In college, I developed the interest in Constitution, in large part disagreements with the Warren Court decisions, particularly the areas criminal procedure, the establishment clause and reapportionment.
Just very, very quickly, how important in terms of -- having our nation a fairer, more just nation, where are those Warren Court decisions on reapportionment? And what would this country -- just quickly, what would this country look like if we hadn't made those judgments? Would we be a different nation?
GRAY: We would be a different nation, and it would all appear to be white and no persons of color would have very little, if any, involvement in it.
KENNEDY: Professor Sullivan, I want to ask you about the impact of Judge Alito on average Americans. This is something we've heard from the power structures around here. I want to hear what your impact that you believe his service on the court for average Americans. And I want you to clarify that not all Fourth Amendment cases are criminal cases. There are civil cases too. Could you comment about that?
SULLIVAN: Yes, that's correct.
KENNEDY: The ideas that sometimes innocent people are caught up on the police searches and bring Fourth Amendment charges.
SULLIVAN: Yes. In Groody, for example, which we've talked about a lot, it was a civil damages case. The Congress has provided a remedy for citizens when their rights have been violated, their constitutional rights; in this case, search and seizure rights.
Let me say that the Warren Court, in answer to your question, set forth a jurisprudence with respect to the Fourth, Fifth and Sixth Amendment that in effect limited the scope of police power vis-a-vis the average citizen, that there are some rights deeply enshrined in the Constitution that we all have, from the highest and most powerful to the average Joe. And that's what the Fourth, Fifth and Sixth Amendment protects.
My read of Judge Alito's jurisprudence in this area is that he weakens the protections. He's very deferential to institutions and would allow law enforcement practices to expand in a way that I suggest to you would have a negative and detrimental impact on the non-powerful in our country.
KENNEDY: Professor Flym, just on this issue of recusal, is it your understanding that under the existing code of conduct for U.S. judges that Judge Alito should have complied, should have recused himself and should have established on his letter of recusal or on the system Vanguard and that he failed to do so with his interpretation of the ethics?
FLYM: Absolutely, Senator. But in addition to the code of judicial conduct that is frequently understood in terms of ethical rules, the statute enacted by Congress in 1974 trumps whatever else may be adopted, and it's unmistakably clear that he had an obligation to recuse.
KENNEDY: Ms. Michelman, I want to first of all thank you. That was a splendid performance on "Meet the Press" a week ago.
MICHELMAN: Oh, thank you.
KENNEDY: I think in response to the questions, just to pick up on the chairman's thought where you talked about the dignity of women, you touched on it here now, I'd just like you to use up whatever time I have in talking about what you think the implications would be by this nominee, just on women's issue just generally.
I think you've spoken very, very eloquently on the choice issue. Obviously, you refer that if you would too, but I'm very, very interested in this broad view of yours about both the dignity of women, women in the family, women in our society, women, the role that they're playing, and a bit about what kind of country we'd be if we didn't have justices that protected that.
KENNEDY: And what kind of country we can become if they do. Please.
MICHELMAN: Thank you, Senator, also for your generous comment about my "Meet the Press" performance.
We should not forget that women have had a long and hard journey to full equality in this nation. It's only been 84 years since we've had the right to vote. So it's been a long and difficult journey and one that has taken great effort. And both as a political movement but also through the law to have recognized that we could vote, we could own property, we could get charge accounts, which I was denied the right to have a charge account, because I wasn't married in 1969. It was shocking.
So there has been a very long and arduous journey and women's equality and full capacity to be partners, equal partners with men in the socioeconomic, political life of this nation is dependent on our right to determine the course of our lives, our right to education, our right to employment, our right to equal pay, all of these things are determined by our right to control our lives.
And we absolutely need a legal system that recognizes, respects women's dignity on autonomy, including our right to determine when to become mothers and under what circumstances and even whether. And it's hard to find the words to adequate express how important that is.
KENNEDY: My time is up.
Thank you, Mr. Chairman.
SPECTER: Well, thank you, Senator Kennedy.
Without objection, there will be placed in the record a large group of letters relative to the issue, and I want to remind everybody on the committee that under committee practices that, as with the proceeding on Chief Justice Roberts, all questions must be submitted within 24 hours of the close of the hearing, which will be a little later today, perhaps even shortly.
HATCH: Let me just greet all of you and thank you for being here.
Dr. Gray, I have tremendous respect for you. You've led a lot of fights in this country under very, very trying circumstances. Having been born on the other side of the street myself, I understand a little bit about how tough that might be from time to time, but I'm sure not nearly as much as you understand it.
GRAY: Thank you, Senator.
HATCH: Ms. Michelman, it's always nice to see you.
MICHELMAN: Good to see you too.
HATCH: And as you know, I have respect for other points of view as well.
Mr. Sullivan, nice to get acquainted with you; Ms. Frost, with you.
Mr. Flym, I have to say I disagree with you, as do almost every ethics expert I know, including the American Bar Association, but I appreciate your advocacy for your client. That's always appreciated by me and respect you for it.
But I just wanted to greet all of you and let you know that we appreciate you coming.
SPECTER: Thank you, Senator Hatch.
SESSIONS: Mr. Gray, it's a delight to have you here. You're certainly one of Alabama's most distinguished citizens. Mr. Chairman, Mr. Gray just completed tenure as president of the Alabama Bar Association and traveled the state extensively and talked on these subjects and I think reminded people a lot about just what our situation has been and how far we've come and things that we still need to do. So Mr. Gray is an extraordinary leader, capable of holding any high office in this country, and it's a pleasure to get to know him.
I read with great interest his book, "Bus Ride to Justice." He talks about that first bus boycott in the '50s with Rosa Parks and Martin Luther King and the tension and the work and the enthusiasm and the courage that were shown at that time. It's really remarkable and it's important for us to remember. We've got a lot of things to do.
But, Mr. Gray, I thank you for your service.
GRAY: Thank you very much, Senator, and I even talk about the judgeship which was not to be in that book too.
SESSIONS: Well, we've both been there, haven't we?
GRAY: Yes, sir. Thank you.
SESSIONS: And we may have a little more jaundiced eye than trauma around here about this process.
When you came out of college, I noticed in your book you mentioned several times, you had a commitment in the '50s, "destroying everything segregated I could find." Do you feel like you've...
GRAY: That was the motivating factor, Senator, but as to why, I became a lawyer, and I wish this nominee had that kind of commitment just so I would not feel uncomfortable and would not be troubled.
SESSIONS: Gomillion v. Lightfoot was -- I mean, you had the Vivian Malone case at the University of Alabama, you were involved in that, the syphilis study at Tuskegee, Gomillion v. Lightfoot and of course Rosa Parks case.
But Gomillion, you made an argument that I think at first appeared not to be. I mean, Colgrove v. Green, the Supreme Court case that seemed to stand squarely in your way, in fact, you lost it in earlier rounds of the court, but you had a vision that this germander of that city was directly driven to deny people the right to vote, and that was your idea and your concept.
Briefly, just share that...
GRAY: Yes, sir. That is exactly the thing, and I illustrated it by having a map drawn to scale of the old city limits and the new city limits showing where the blacks were excluded and it go all the way in to include whites. And I think that case, no question, set the precedent for these other cases. If Reynolds v. Sims had been first, I don't think we would have won. But with Gomillion, which shows an extreme situation but the purpose of the state in all these cases was the same, and that was to avoid minorities from voting.
And I'm glad we passed that, but we still have, even in Alabama, major cases, the higher education case, the Knight case, that's still pending. We still have cases and Lee v. Macomb (ph) that I filed in '63, elementary cases where there are no terminal degrees in and now my sons are handling those cases, and we still have a teacher testing case in Alabama that is still pending. So we need to have a strong Supreme Court if we're going to continue to make progress.
SESSIONS: I would point out a couple of things. First, it took a reversal of precedent to make this happen, and so sometimes bad precedent ought not to be kept on the books. We've been talking about precedent and (inaudible) an awful lot here, and I wanted to mention that.
I would just say, Mr. Gray, I think, as Judge Alito has explained it, his father was a nonpartisan clerk for the New Jersey legislature. They were trying to redistrict the legislature and the court was ignoring classical, geographical or political boundaries, counties and that kind of thing, and that's where his frustration came, not with the concept, which he has affirmed clearly here, of one man, one vote.
GRAY: I want to thank you, Senator, and I want to publicly thank you for doing what you have done in helping the Tuskegee Human and Civil Rights Multicultural Center, which is designed to preserve some of this rich history in our part of the state, and I want to thank you for it.
SESSIONS: And we can thank Chairman Specter for helping us some on that.
GRAY: Thank you very much.
SESSIONS: Thank you, Mr. Chairman.
SPECTER: You want to conclude, Senator Sessions, without saying why you can thank Senator Specter?
SESSIONS: For helping us with the Tuskegee Human and Civil Rights Center. Thank you, sir.
SPECTER: Senator Coburn?
SESSIONS: Always been accommodating.
COBURN: Senator, I will defer. There's obviously a very distinguished panel before us, each a leader in their own way, respected for their advocacy and their heart and their desire to make our country better. And the fact that you would come here today and put forward your views lends great credibility to the process and places more responsibility on us to hear every point of view as we make a consideration on this nominee. And I thank you for coming.
I yield back.
SPECTER: Thank you very much, Senator Coburn.
Thank you, Mr. Gray, Ms. Michelman, Professor Sullivan, Professor Frost, Professor Flym, and we will take a five-minute recess while the next and final panel comes forward.
SPECTER: The committee will resume. Let's have order in the hearing room, please.
Our first panelist on the sixth and final panel is Ms. Kate Pringle in the Litigation Department of Friedman, Kaplan, Seiler and Adelman, a graduate with honors from American University, 1990, cum laude from Georgetown University Law Center, editor-in-chief of the law journal there. Ms. Pringle was one of Judge Alito's clerks in the 1993-19943 term.
Thank you for joining us, Ms. Pringle, and the floor is yours for five minutes.
PRINGLE: Mr. Chairman and honorable members of the committee, thank you very much. I greatly appreciate the opportunity to share my experiences with and personal observations of Judge Alito for whom I did clerk in 1993 to 19943 and who has served as my mentor since that time.
First, let me explain briefly the job of a law clerk. It's the law clerk's job to provide legal research to the judge, to assist him in his analysis and generally to act as a sounding board in the difficult process of deciding cases. As Judge Garth indicated yesterday, it is an unusually close professional relationship.
I began my clerkship for Judge Alito upon my graduation from Georgetown Law School. I was then, as I am now, a committed and active Democrat. I had heard from some of my professors that Judge Alito had a reputation as a conservative, and I therefore expected his to be an ideologically charged chamber in which I would battle to defend my liberal ideals against his conservative ones.
But what I found was something very different from what I had expected. I learned in my year with Judge Alito that his approach to judging is not about personal ideology or ambition but about hard work and devotion to law and justice. I would like to share with you several things that I learned about Judge Alito during the time in which I worked with him.
First, I learned that Judge Alito reaches his decisions by working through cases from the bottom up, not the top down, to use a phrase that we heard from Justice Roberts. Judge Alito taught me to try to ignore my personal predispositions and to come to each case with an open mind. He taught me to work carefully through an analysis of the facts of the case and a legal precedent and to try to find the resolution that flowed from that analysis. Judge Alito consistently applied this bottom-up approach. He approached every case without a personal agenda and with a commitment to careful and methodical review. His approach was demanding. He read and re-read the record of each case, the decisions cited and the relevant decisions that the parties had failed to cite.
I remember him building a model from string and paper to try to figure out the events of one case, and I remember him physically acting out the events of another, all in an attempt to truly understand the facts. He works hard on every case, large and small, and he fought to find the results that flowed from the facts and the law, divorced from any personal bias or interest.
Second, I learned that Judge Alito is interested in and respectful of differing points of view. The law clerks with whom I worked spanned the ideological spectrum. I later learned that this is typical and that Judge Alito selects law clerks with widely varying backgrounds, political outlooks and personal views. This led to lively debates amongst the law clerks.
In my experience, Judge Alito was never dismissive of any points of view. He encouraged our input, challenged each of us to substantiate our views and listened carefully to the points that each of us made.
Judge Alito treated advocates before him with that same respect. He asked probing questions, which he refused to let the advocates sidestep, but he was never caustic or rude, and he always appreciated the honest efforts of an advocate.
Judge Alito was similarly respectful of the differing opinions of his fellow judges on the third circuit. He sought to forge consensus where consensus could be reached. When he dissented from another judge's views he did so in a respectful and intellectually honest way. The appreciation that all of Judge Alito's colleagues on the bench have for him is reflected in the outpouring of support at these hearings from other judges on the third circuit.
Finally, I learned that Judge Alito approaches his job with personal humility and a great respect for the institution of the court. What I saw was a person cognizant of the limited role assigned to him by the Constitution to interpret the law, as established by written law and prior precedent.
Judge Alito did not, in my experience, ever treat a case as a platform for a personal agenda or ambition; rather, his decisions are limited to the issue at hand. They demonstrate an effort to interpret honestly and faithfully apply the law to the parties that seek justice before him.
Apart from his judicial approach, Judge Alito was a thoughtful and generous boss. He took the time to get to know his clerks and to learn about us and his families. He had none of the personal arrogance that sometimes attends power.
It was my great privilege to work with and learn from Judge Alito at the outset of my career. Many of Judge Alito's law clerks, both men and women, both Republicans and Democrats, have traveled to Washington to be here for these hearings. We're all here because we feel strongly about Judge Alito's talent and character. We all believe that he will be an outstanding justice of the United States Supreme Court.
Thank you very much.
SPECTER: Thank you very much, Ms. Pringle.
Our next witness is Congressman Charles Gonzales. Representative Gonzales was first elected to the House in 1998. He's a member of the House Energy and Commerce Committee. He served as a Texas regional whip for the Democratic Caucus and is chair of the Hispanic Caucus Civil Rights Task Force. Congressman Gonzales has been chair of the House Judiciary initiative for the Congressional Hispanic Caucus.
There's a little extra time left over from the time given to the judges yesterday, so we're going to start the clock at eight minutes for each of the witnesses invited by the Democrats.
You have eight minutes, Representative Gonzales.
GONZALES: Well, thank you very much, Chairman Specter and of course Senator Kennedy. Today, I am representing the Congressional Hispanic Caucus. In my capacity as the chairman of the Hispanic judiciary initiative and Task Force on Civil Rights.
The Hispanic Caucus was obviously disappointed that the president did not nominate a highly qualified Hispanic to the bench. We did not expect an Hispanic to be nominated for the sake of being an Hispanic. We did expect the administration to have recognized the need for our nation's highest court to reflect the nation's diversity in all its forms: Thought, experience and expression.
The Hispanic Caucus' policy with respect to the evaluation of nominees for judicial vacancies requires an extensive examination of each nominee in order to assess the following: His or her commitment to equal justice and right of access to the courts, his or her efforts in support for Congress' constitutional authority to pass civil rights legislation and his or her efforts in support of protecting employment, immigrant and voting rights as well as educational and political access for all Americans.
Our process is also assisted by the excellent work of many legal and advocacy organizations, and I would like to especially thank the Mexican-American Legal Defense and Educational Fund for their efforts to assist us in our work.
Allow me to highlight a few areas that cause the Hispanic Caucus great concern.
Discrimination in jury selection, Pemberthy v. Beyer. Judge Alito's ruling would allow the use of language to serve as a pretext to discriminate on the basis of ethnicity. Voting Rights Act violation, Jenkins v. Manning, and Judge Alito appears to have joined the majority opinion in that case. It dealt with at-large school district voting systems. Judge Alito, along with the majority -- and we're assuming that's what he signed off on -- found no violation of the Voting Rights Act even though historically only three out of 10 black candidates over a 10-year period were elected.
Constitutional rights of non-citizens. His 1986 memo to FBI director, William Webster, in which Judge Alito appears to ignore precedent, cited OLA (ph) to accommodate denying constitutional protections to immigrants.
Commerce Clause application. You all have discussed the United States v. Rybar case. Judge Alito's reasoning would seriously hamper Congress from passing laws to address civil rights abuses.
Equal employment opportunity, Bray v. Marriott Hotels, which you all have also touched on. Judge Alito would impose a standard that deviates from accepted legal norms, making it extremely difficult to prove discrimination based on race or gender.
The Hispanic Caucus wishes to acknowledge the indispensable role the United States Senate plays in determining the composition of the Supreme Court. We know that the nominee will be someone of President Bush's choosing. However, this does not necessarily mean that the Supreme Court should be a mere extension of the executive branch. The nation's founding fathers did not intend it to be and therefore subjected the president's nominees to Senate approval by way of advice and consent.
There may be a good-faith disagreement as to the appropriate parameters limiting the types of questions asked of the nominee by this committee, but no one would argue that questions establishing a nominee's judicial philosophy are universally contemplated under advice and consent.
The Hispanic Caucus is aware that political, social and economic forces in any society play to the advantage of the employer over the employee, the able-bodied over the disabled, the citizen over the immigrant, the majority over the minority, the wealthy over the poor and the state over the individual. But in this country it has been the third branch of government, the judicial branch, which has countered the tendency to abuse this innate advantage by acting as the great equalizer regardless of one's status.
For the Hispanic Caucus, the desired judicial philosophy is a simple one and it's best expressed in the following quotation: "There is so much to be done that demands the full capacities of our hearts and souls, but, truly, where shall we begin? Perhaps I will begin with you. Keep in mind that if your life is without value, so is mine. If the law does not protect you, it will not, in the end, protect me."
The Hispanic Caucus does not believe that Judge Alito's writings and decisions embrace this simple but profound judicial sentiment. We do not argue that he possesses a brilliant legal mind and has had an accomplished career, and I will state that we do not believe that he's a racist or a bigot, but this is not the controlling issue. The issue is what judicial philosophy guides and motivates such a gifted and talented person in his decision-making process.
In the end, this should not be a question of party affiliation or conservative versus liberal beliefs. Any Republican, any Democrat, any conservative, or any liberal should share a judicial compass that points them to the inevitable truth that, indeed, if a law does not protect you, then it protects no one.
I will be recommending to the Congressional Hispanic Caucus that it oppose this nomination.
Thank you very much.
SPECTER: Thank you, Representative Gonzales.
We now turn to another member of the House of Representatives, Representative Debbie Wasserman Schultz, who serves in the 20th Congressional District of Florida.
Her resume notes -- since it's on her resume and I'll read it -- she is the first Jewish congresswoman ever elected from Florida to the House. She serves on the Financial Services Committee and the Committee on the Judiciary.
Thank you for joining us, Congresswoman Schultz, and you have eight minutes.
SCHULTZ: Thank you very much.
Good afternoon, Mr. Chairman -- Senators. I'm honored to speak to you as you consider the nomination of an individual to a lifetime position on the Supreme Court. And I come before you today in several capacities.
First, I'm here as a member of Congress, proudly representing the people of South Florida.
Second, I am here as a member of a generation that benefited from long-fought Supreme Court battles resulting in equal rights for all Americans, which is a fundamental principle of our democracy.
Third, I am here in my most rewarding role, as the mother of three young children who will come of age in an America guided by many of the decisions that this court will make. And I cannot imagine my children's future in an America without privacy rights and the civil rights and liberties that all Americans enjoy today.
These are the reasons that I am here today, to express the concerns about the rights and freedoms that, based on his record, I believe would be threatened by Judge Alito's elevation to the Supreme Court.
And, therefore, I urge you to reject his nomination.
By now we're all very familiar with Judge Alito's writings and views on reproductive rights -- each one indicating a different nuance of his opinion on a woman's right to choose.
But really, here's the bottom line: You're considering a nominee who wrote a memo urging the courts to restrict a woman's right to make her own reproductive choices.
Judge Alito ruled -- actually ruled -- in support of spousal notification. In essence, he is comfortable putting a woman's constitutional right to make decisions about her body in the hands of her spouse as soon as she signs her marriage license.
This blatant disregard for individual rights is why our founding fathers designed a meaningful system of checks and balances. And once any branch of government surrenders itself to the others, that authority is difficult to regain.
Now, I come from a state where executive power and government intrusion on privacy rights has been repeatedly abused. Florida's governor pushed the state legislature to grant him authority to overturn a judicial decision in the Terri Schiavo case, and Congress inserted itself into that family's private tragedy.
Ultimately, the case could have reached the Supreme Court. Now, let's think about this for a minute. Can America risk Justice Alito -- a Supreme Court Justice Alito -- casting the deciding vote to drag us through another tragic saga similar to the Terri Schiavo case?
I don't think America can endure another Terri Schiavo case.
In another disturbing privacy matter, Judge Alito's lack of judgment, I believe, was appalling. In this case, a police officer strip-searched a 10-year-old girl and her mother. They were not named in the search warrant; they were simply on the premises.
According to The Boston Globe the 10-year-old girl's lawyer later reported Judge Alito as saying, "Why do you keep bringing up the fact that this case involves a strip search of a 10-year-old child?"
Why? Because this was not a simple case of whether or not the officers exceeded their investigative authority. It escalated to an unconscionable level.
Judge Alito was the only member of a three-judge panel who found the strip search of a 10-year-old acceptable under his interpretation of the law.
Now, I am horrified that someone could strip-search my children because of selective interpretation of a warrant.
And as you consider this nomination, I ask you to reflect -- would you be comfortable if your own child was the subject of a strip search? Based on his record, would you be comfortable if your little girl was the plaintiff with Justice Alito as the deciding vote?
The standard must be higher when cases involve the most vulnerable members of our society: our children.
When enforcement authorities lapse, our courts must not.
Now, despite his questionable affiliations with discriminatory organizations, such as the Concerned Alumni of Princeton, there is no question -- as has been acknowledged by many others -- that Judge Alito has impressive education credentials and he's led a distinguished career.
But credentials alone do not qualify an individual for elevation to the Supreme Court. And, Senators, as you contemplate the profound influence Justice O'Connor's successor will have on the lives, liberties, and legal protections of Americans for decades to come, I ask you to consider that Judge Alito is a nominee who will replace one of only two women justices.
This really reflects a missed opportunity to retain or even expand -- as my colleague referred to -- the existing diversity of the Court.
Now, I distinctly remember the feeling I had in 1981, Mr. Chairman, when I was 14-years old and I first heard that a woman would serve on the Supreme Court. It proved to me what my parents had told me my whole life, that in America, little girls really can grow up and be anything that they want to be.
That's an amazing thing about this country and it's one that we really need to carefully think about, especially with the selection and elevation of a Supreme Court nominee. The message that we send to little girls in America really needs to be a strong one when it comes to nominations like this one.
The Supreme Court, Senators, is the final arbiter in our nation. And today, you stand as the guardians to its membership. From Marbury v. Madison to Brown v. Board of Education, the fingerprints of the United States Senate have subtly steered the highest court in this nation time and again.
And long after we have completed our public service here, the decisions made by the Supreme Court will continue to impact all Americans, and his history will really judge your decisions.
And I just want to close by just asking you to think about the role of the legislative branch. I've served as a legislator, either in the state legislator or in the Congress, for the last 13 years and I think we should zealously guard our legislative authority.
We are, after all, the only directly elected branch of government -- and I think we need to carefully think about how this nominee thinks about our role in the governmental process.
I think many of his views have demonstrated that, given his beliefs in a unitary executive, or at the very least, the strength of the executive, that we should carefully think about how we believe our role as legislators would be compromised if he were elevated to the Supreme Court.
Thank you very much for this opportunity.
SPECTER: Thank you very much, Congresswoman Schultz.
Our next witness is Mr. Jack White, associate in the San Francisco law firm of Kirkland & Ellis. He graduated magna cum laude from Pepperdine Law School; editor-in-chief of The Law Review there; bachelor's degree from the United States Military Academy at West Point. He served as an active duty officer in the Army and continues to serve as a captain in the Reserve.
He is, according to his resume, a dedicated member of the ACLU and NAACP. He was one of Judge Alito's law clerks in the 2003-2004 term.
Thank you for coming from San Francisco, Mr. White, and the floor is yours -- but only for five minutes.
WHITE: Thank you, Mr. Chairman, Senator Kennedy.
I appreciate the opportunity to testify here today.
In order to provide some context for my comments, I'd like to share some personal information about myself. I am the son of African American parents, born in the segregated South. Their respect for the recognition of civil liberties that enabled them to succeed and raise principled children inculcated the same respect in me.
This respect is what led me to become a member of the NAACP and the ACLU. The same respect for our freedoms as Americans encouraged me to serve our country after graduating from West Point on active duty in the United States Army.
Now, as I clerked for Judge Alito, I saw a deep sense of duty, diligence, humanity, and respect for his role as a federal appellate judge.
Judge Alito required searching analysis of the factual and procedural background of every case. He required a thorough evaluation of the applicable law in every case. He uniformly applied the relevant law to the specific facts of every case.
Judge Alito recognized that every case was the most important case to the parties and attorneys with something at stake. There was no wavering from this consistent, predictable method of his judicial decision-making process.
Working for Judge Alito, I saw in him an abiding loyalty to a fair judicial process, as opposed to an enslaved inclination toward a personal or ideological -- or to a political or personal ideology.
What I found most intriguing, and particularly exceptional about Judge Alito's judicial decision-making process, was the conspicuous absence of personal predilections. I never witnessed an occasion when personal or ideological beliefs motivated a specific outcome in a case.
Indeed, after a year of working closely with the judge on cases concerning a wide variety of legal issues, I left New Jersey without knowing Judge Alito's personal beliefs on any of them.
Now, the reason I didn't know his personal beliefs on all of these issues was that the jurist's ideology was never an issue in a case that Judge Alito heard. Indeed, it's never an issue in any case. My fellow former law clerks have uniformly agreed -- and we've communicated this notion to the committee in a letter that we've provided.
Although Judge Alito's sense of duty, diligence, and commitment to the decision-making process have inspired the collective support of his former law clerks, there is an additional characteristic that also heavily impressed me.
On a daily basis, Judge Alito dealt with a wide variety of individuals -- including law clerks, fellow judges, experienced attorneys, inexperienced attorneys, court staff, law students, and individuals throughout the community.
Without fail, I saw Judge Alito treat everyone -- every individual -- with dignity and respect.
In fact, on one occasion my parents went to New Jersey to visit their son. Judge Alito suggested that I bring them to his chambers. Now, because oral arguments were rapidly approaching, I thought that the judge would shake their hand and we'd quickly be on our way.
Over an hour later, my parents left his office, understanding my extreme regard for this jurist. At the end of the day, my parents left believing that meeting them was the highlight of Judge Alito's day.
Perhaps it was.
Working for Judge Alito provided me with the opportunity to witness American justice at work. I saw a jurist with an abiding respect for the strength, purpose, and authority of our Constitution -- and a particular regard for the limited role of the judiciary envisioned by the framers of our Constitution.
From my experience, I will feel confident with Judge Alito serving as an associate justice on the Supreme Court, interpreting laws that affect me.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Mr. White.
We turn now to Mr. Reginald Turner, president of the National Bar Association, a partner in the Detroit law firm of Clark Hill. Practiced labor law and employment law and governmental relations for over 15 years. Served as president of the Michigan State Bar Association. Was a White House Fellow, a graduate of Wayne University where he got his bachelor's degree and a law degree from the University of Michigan Law School.
We welcome you, Mr. Turner, and you have eight minutes to testify.
TURNER: Thank you very much, Mr. Chairman and Senators.
It is an extraordinary honor for me to be here today to testify on behalf of the National Bar Association.
Our association was founded in 1925 at a difficult time in our nation's history, when lawyers of color could not belong to the American Bar Association or many of the state bars and other voluntary bar associations around the country.
Today, we represent a network of over 20,000 lawyers with 80 affiliates around the world.
The National Bar has established a rigorous process for evaluating judicial nominees. We take a position on a nomination only after an exhaustive evaluation of the nominee's record.
Judge Alito was evaluated consistent with this process. The results of our review are troubling to us and we cannot support this nomination.
We don't take this position lightly. With President Bush's nominations that exceed 200 in number, we've only taken positions either without support for or in opposition to three of President Bush's nominees.
We understand that Judge Alito has solid educational and professional credentials, but these credentials alone are not sufficient in our view, for a lawyer or judge to be an associate justice of the United States Supreme Court.
We strongly believe that a nominee to our nation's highest court must share an unequivocal commitment to the basic rights and liberties afforded to all Americans under the United States Constitution.
In this country, race and the treatment of racial issues by the judiciary profoundly affect every aspect of American life and play critical roles in the formulation of social, economic, and political agendas.
Accordingly, the National Bar Association has adopted a standard to determine whether a federal judicial nominee will interpret the Constitution and laws to advance our great nation's slow but steady progress toward equality of opportunity.
Unfortunately, our legal system is not as colorblind as it aspires to be.
In Grutter v. Bollinger, Supreme Court Justice Sandra Day O'Connor acknowledged that. She said, and I quote, "In a society like our own, race, unfortunately, still matters. Thus, judicial nominees should be able to articulate support for constitutional principles, statutes and legal documents that serve to extend the blessings of liberty to all Americans."
In sharp contrast to Justice O'Connor's philosophy, Judge Alito's work as a lawyer and as a judge reveal a hostility to these basic civil rights and civil liberties that makes his nomination particularly troublesome to the National Bar Association.
His philosophy as a lawyer is revealed in his 1985 application for a position of deputy assistant attorney general. Among other things in that application, then-attorney Alito expressed disagreement with well-established Supreme Court precedents that relate to fundamental rights.
Attorney Alito indicated at the time that he was attracted to constitutional law because of his, quote, "disagreement with Warren court decisions," end quote, including a series of landmark decisions that established the constitutional principle of one person, one vote.
Under this fundamental doctrine, every citizen of the United States has the right to an equally effective vote, rather than the mere right to cast a ballot. We heard Fred Gray testify a few moments ago, very eloquently, about the impact of the Warren court decisions that upheld the provision of one person, one vote.
We heard of the tremendous impact on the inclusion in our nation's cadre of elected officials of people of color for the very first time in many states in the southern part of this United States and in states around the country. We've heard of the tremendous progress made as a result of those decisions, progress which would not exist today if Judge Alito's views on this issue had carried the day.
In addition, Judge Alito expressed opposition to programs designed to increase diversity in education and employment. He mischaracterized these programs as, quote/unquote, "quota systems," when, in fact, many of these programs were benign efforts on the part of educational institutions and employers to promote opportunities for those who traditionally have been disenfranchised from the mainstream of American society.
At the same time, then-attorney Alito proudly listed his membership in Concerned Alumni of Princeton, a group that advocated quotas for children of alumni of Princeton in an effort to reduce the admissions of women and minorities to that prestigious university.
Although these writings are 20 years old, they are relevant today, because the views espoused by attorney Alito are reflected in the judicial record of Judge Alito. His judicial opinions, evidence an agenda to reverse hard-fought civil rights gains and to limit improperly the authority and power of Congress, particularly in the area of providing remedies to unlawful discrimination and protecting the health, welfare, and safety of the American people.
Just to summarize some of these points -- Judge Alito has been the most frequent dissenter among the 3rd Circuit Court of Appeals judges since his appointment in 1990. According to estimates by University of Chicago law professor Cass Sunstein, more than 90 percent of Judge Alito's dissents take positions more conservative than those of his colleagues.
He rejected the views of a majority of his court, as well as the rulings of six other federal appellate courts, when he reasoned that the federal law limiting the possession and transfer of machine guns was unconstitutional.
In civil rights cases where the 3rd Circuit was divided, Judge Alito opposed civil rights protections more than any of his colleagues.
Indeed, he has advocated positions detrimental to civil rights 85 percent of the time and has filed solo dissents in more than a third of these cases.
In one civil rights case, Sheridan v. Dupont, all 10 of Judge Alito's colleagues appointed by Republicans and Democrats alike, agreed that a sex discrimination victim's case was properly submitted to the jury, contrary to Judge Alito's sole dissent.
In Doe v. Groody, Judge Alito's dissent condoned the strip search of a 10-year-old girl and her mother, even though they were not named in the warrant that authorized the search. The majority opinion by then-Judge Michael Chertoff criticized Judge Alito's view as threatening to turn the search warrant requirement into little more than a cliche rubber stamp.
In his dissent in Bray v. Marriott, Judge Alito argued for imposing an evidentiary burden on victims of discrimination that according to the majority would have eviscerated legal protections under Title 7 of the Civil Rights Act. In particular, the majority contended that Judge Alito's position would protect employers from liability even in situations where employment discrimination was the result of conscious racial bias.
In conclusion, on the basis of our thorough review of Judge Alito's record, the National Bar Association cannot support the nomination of Judge Alito to the United States Supreme Court. For several decades, Judge Alito has championed limitations on civil rights and voting, resulting in curtailed educational and employment opportunities for people of color and women. If his views had prevailed in many cases, our nation would not be far beyond the regrettable days when opportunities for Americans, like retiring Justice Sandra Day O'Connor and the late Justice Thurgood Marshall, were truncated on the basis of gender and race.
Now is not the time for retrenchment. Now's the time for America to step forward into the 21st century and open the doors of mainstream society for the benefit and protection of all Americans.
Again, thank you very much for the opportunity to testify.
SPECTER: Thank you, Mr. Turner.
Our final witness on this panel, and our final witness, is Mr. Theodore Shaw, director, counsel and president of the NAACP Legal Defense and Education Fund here in Washington, D.C., a graduate of Wesleyan University with honors and from Columbia University Law School where he was a Charles Evans Hughes Fellow. He's also served in the Office of Civil Rights in the Department of Justice.
Welcome, Mr. Shaw.
And you have some of that extra time; the clock is set at eight minutes.
SHAW: Thank you, Mr. Chairman.
In his absence, I would like to thank Senator Leahy and of course, Senator Kennedy, and the other senators who are members of the Judiciary Committee.
Let me make one small clarification. While we have a Washington, D.C. office, the Legal Defense Fund headquarters are in New York, and I'm a New Yorker.
I'm acutely aware that I'm the last witness on the last panel of these hearings. So I will come right to the point.
You have my written testimony. And I would like to request that the NAACP Legal Defense and Educational Fund, Inc.'s report on the nomination of Judge Alito to the position of associate justice of the Supreme Court be entered into the record.
SPECTER: Without objection, it will be made part of the record.
SHAW: Thank you, Mr. Chairman.
We at the Legal Defense Fund do not relish opposition to a nominee to the Supreme Court or for that matter any court. And our ordinary posture is to take no position on nominees to the federal courts. So I am not here with any pleasure. I am not here to challenge Judge Alito's intellect or his integrity. I'm not here to engage in the politics of personal demonization, which takes all of us on a low road that leads us to a place where I think we are all diminished.
Many fine people have testified on both sides of this nomination -- people whom I know and respect and admire. And I think it's very important to understand that people of good will may differ on this nomination and the substantive issues that lead them to take positions on this nomination.
With all due respect, I hasten to add that there's nothing remarkable about colleagues on the federal bench and former law clerks taking a positions in support of this nominee. Collegiality is a very, very important commodity on the bench. And of course, I think it's quite a heady thing to know someone who is being nominated to the Supreme Court. I don't suggest that that's why they support him. I'm saying that they know him personally.
But this is not about personality, and it is not personal. We are compelled to testify in opposition to the nomination of Judge Alito to the United States Supreme Court based on a standard that the judge himself articulated. I think it's a correct standard.
He said if you want to know what kind of justice I would be on the Supreme Court, look at my record on the court of appeals. That is exactly what we have done. And it is only on that basis that we have arrived at the position that we have taken.
I want to encourage all of the members of the Judiciary Committee to read our report in full. Our review of his record has convinced us that his confirmation to the Supreme Court would cause a substantial shift in the court's civil rights jurisprudence in a manner that would make it significantly more difficult for civil rights plaintiffs to prevail.
In his 15 years on the bench, Judge Alito has a record in civil rights that is extremely troubling to us.
For example, in all that time he has voted for employment discrimination plaintiffs who are African Americans on the merits of their cases twice. Some might say that that's a reflection of the strength of the cases that are coming before the court these days. We believe it is not.
And without going into the detail that other people have gone into already -- it would be redundant -- I point to, for example, the Bray case, where -- and I think it's very instructive -- where Judge Alito took a position that appeared to us at least to be gratuitous. The issue there was whether the jury would get an employment discrimination case, whether it would go to the jury. And the reason proferred by the employer for the adverse employment decision claim to be discriminatory was proven and shown, demonstrated to be pretextual. Under the law, as the majority saw it, and I think logic supports it, an inference can be drawn by a jury that the motivations were in fact discriminatory, once the pretext has been exposed.
Judge Alito, it seemed to us, worked hard to arrive at a conclusion that that case should not even go to the jury. And it demonstrates a cramped and narrow reading of Title 7 in civil rights laws, which we believe is symptomatic of his views on civil rights issues in general.
I want to be very clear because one of the members of this committee raised the issue of whether anyone was alleging that Judge Alito harbors a bias. I want to be very clear at the Legal Defense Fund -- on behalf of the Legal Defense Fund -- that we are not saying that he harbors racial bias or that he is a racist. That would, as I indicated before, diminish all of us.
Whatever his reason for ruling the way he does in cases, the record is consistently clear, as my colleague and friend Reginald Turner has indicated and as our report has indicated. It is very difficult for African American plaintiffs in civil rights cases to prevail. Now it's not limited to African American plaintiffs, but those are the individuals whom we represent at the Legal Defense Fund.
Certainly, his view of the interpretation of civil rights laws extends to gender discrimination -- some of the cases which we've highlighted in our report -- and it extends to other areas with respect to individual rights.
Now we believe that his views with respect to reapportionment, which have been aired here, are deeply troubling. We believe in the area of criminal justice his views are troubling.
But I particularly want to point to an area about which we have a deep concern. The analogy with baseball has been very popular, and I want to end on this point before this committee and in these nominations. And Judge Alito, at one time, used to like to say about affirmative action that Henry Aaron would not be regarded as the all- time home run king and hero that he is if the fences had been moved in whenever he came to bat. I think that that reflects a fundamental misunderstanding about affirmative action.
The issue, with respect to civil rights and affirmative action advocates, is not about asking that the fences be moved in. It's about asking about an opportunity to take the field, to stand at the plate. It's about opportunity to play the game. And that is, I think, a fundamental difference in how one views the world with respect to issues of race these days.
I would like to conclude by saying that no one more than those of us at the Legal Defense Fund in this nation, would be happier if, in fact, our views are misplaced.
And I'm told or we're told -- we read -- that he will certainly be confirmed. We think that is before the Senate Judiciary Committee. But no one would be happier if our views are misplaced -- we hope that that's right, if he's confirmed. But we can't take a position based upon hope. We have taken a position based upon his record. And we reluctantly and regretfully conclude that we must oppose Judge Alito's nomination to the United States Supreme Court.
SPECTER: Thank you, Mr. Shaw.
Now, my five minutes for questioning.
Mr. White, when you served as Judge Alito's law clerk, and you have identified in your brochure your membership in the NAACP and the ACLU, what was your sense of his view of equality of African- Americans, equality of opportunity?
WHITE: When I served, I worked with him on several cases where race issues arose, among blacks and whites, and other types of race issues. Mr. Shaw, for whom I have the utmost respect, says that it's not about personality and it's not about the person, and I respectfully disagree.
Judge Alito, when he was testifying, said he has an open mind. During my testimony, I said that Judge Alito treats everyone -- everyone -- the same.
And I also mentioned that he looks at every case as a brand new case. My experience was that he did look with an open mind.
And that it's not personal, I have to respectfully disagree with that as well. It is kind of personal. On the street that I live, I'm the only African-American. And I can walk down the street without being racially profiled. Judge Alito has ruled that racial profiling is incorrect. So that's very personal to me.
In my experience, he was very fair and open.
SPECTER: Thank you, Mr. White.
I want to move to Mr. Turner at this point.
Judge Tim Lewis testified yesterday, had been on the 3rd Circuit with Judge Alito for several years, an African-American, identified himself as being strongly pro-choice and very active in civil rights issues, and said that he would never consider supporting Judge Alito if there was any doubt in his mind as to Judge Alito's dedication to civil liberties.
Do the views of Judge Lewis, Mr. White, who worked with him closely, have any impact on your thinking?
TURNER: Well, I would agree with my colleague and dear friend Ted Shaw that the folks who have worked with a lawyer or judge very closely in the course of their careers will have developed a friendship and camaraderie with that person in ways that would promote good feelings about that person's character, temperament and ability.
SPECTER: Make a little bias for Judge Alito?
TURNER: I wouldn't use the word bias -- that is a very positive aspect.
SPECTER: Wait a minute. That's why I used it.
TURNER: Mr. Chairman.
SPECTER: Wait a minute. You don't have to use it.
TURNER: Thank you, Mr. Chairman. Our view of Judge Alito is based upon his record as a lawyer and as a judge. It's based on his writings during the time that he was a lawyer in the Justice Department and on the basis on his rulings from the bench which have presented an ultra-conservative tendency to rule against people of color and women in cases involving discrimination, and to rule in favor of employers and other institutions that have sought to...
SPECTER: Thank you, Mr. Turner. I have to move on to Congresswoman Schultz.
TURNER: Thank you, Mr. Chairman.
SPECTER: You know the political process, election of presidents and campaign issues, and I'm sure you're deep interest in this issue has led you to see the other reported prospects for the Supreme Court, should Judge Alito be rejected. You heard Judge Alito's statements about what he would consider on stare decisis. Do you think if Judge Alito's rejected, you'll get somebody you'll like better?
SCHULTZ: I'm hopeful -- I recognize that the president obviously has the right to nominate a conservative. And I'm a Democrat, and I recognize that given that the president is a Republican, that that's likely what he would do with almost any nominee.
But Americans have the right to expect that he won't nominate an extremist. And I agree with Mr. Shaw and Mr. Turner. It's well expected that colleagues of his -- I served in the state senate, I understand what collegiality is -- colleagues of his, former law clerks, they are going to express...
SPECTER: Thank you, Congresswoman Schultz.
One last question, Ms. Pringle and also Mr. White. Ms. Pringle, two parts -- what you think about his concerns about women's issues, and both Mr. White and Ms. Pringle, there's been concern that Judge Alito may favor the powerful and the government, but you both clerked for him and saw him on specific cases. I'd like your evaluation on that.
PRINGLE: I found that the judge approached each case without a predisposition toward one party or the other. He does have respect for law enforcement, but I also felt that he had respect for the individual plaintiffs or the individual parties who came before him and treated them in a fair and open-minded way.
And I also think that -- I understand the comments that have been made about personal relationships bearing on a witness' testimony. But I do think that a 15-year record gives an opportunity for every group to find something that they like or dislike. What I wish is that everyone on the committee had had the opportunity that I've had to really get to know this person, because I believe the concerns about his character and his approach to judging would be alleviated by that opportunity to really know and work with this person.
SPECTER: Mr. White?
WHITE: Judge Alito's testimony and his record shows that he has ruled in favor of the government and he has ruled in favor of what's been called the little guy. And from my experience, he also ruled fairly after a thorough evaluation of the facts and application of relevant law.
SPECTER: Thank you.
LEAHY: I was going to let Senator Kennedy...
SPECTER: Senator Kennedy?
KENNEDY: Thank you, Mr. Chairman.
I was interested in Mr. Shaw and Mr. Turner's reaction to the significance of Judge Alito's opinion in that Riley v. Taylor case, where you had left-handed presidents, right-handed presidents, with regards to statistical evidence of discrimination in jury selection as you're familiar with this case, where they struck the last three black defendants and was sentenced to death. And Judge Alito found no cause to reject that and used this right hand/left hand analogy.
Are you familiar with that case? Maybe you would comment on that briefly. Has that got a ring to you and does it within the community? It was such a startling fact situation, certainly for me. I'm wondering your own response and reaction.
SHAW: Well, Senator Kennedy, the Legal Defense Fund as litigated issues involving discrimination in jury selection almost throughout its existence. In fact, the late Judge Constance Baker Motley, when she was a Legal Defense Fund lawyer, argued Swain v. Alabama in the Supreme Court which set a standard that existed for many years which was inadequate to protect against discrimination in jury selection. The Legal Defense Fund litigated Batson v. Kentucky which changed that standard.
We believe that Judge Alito's comparison of race discrimination with people who are left- or right-handed really trivializes the significance of race discrimination and the history of race discrimination. And it's a continuing problem with respect jury selection.
And within the 3rd Circuit, Philadelphia itself in the district attorney's office recently has had some terrible problems that have been exposed with respect to intentional discrimination with respect to jury selection.
KENNEDY: I will ask Mr. Turner, but just this last comment on Dr. Gray's comments about the continuing ongoing challenge that we're facing. I think there are many of us in the Congress who just think that well, the next thing up is the Voting Rights Act. But, you know, that's really the only thing that's out there. I think what has been mentioned by Mr. Shaw and also Mr. Turner and Dr. Gray is that this is an ongoing, continuing, every day battle in almost every part of the country, including my part of the country.
TURNER: Thank you, Senator Kennedy.
I agree with you wholeheartedly. And, in fact, Justice Sandra Day O'Connor, as I quoted in my remarks, understands that unfortunately in this nation race still matters. Our justice system is not as blind as it aspires to be and as we would all like it to be. And it is particularly reprehensible for attorneys to use racial bias in the selection of jurors.
Jurors are central, critical to our American system of justice. It is through the jury as fact finders, that we commonly seek to find truth in our justice system. And where that process is subverted on a basis of racial discrimination, particularly in a death penalty case, we strike at the very heart of what I know we all believe to be fundamental principles of justice in our society. And we believe Judge Alito's position and his remarks certainly minimize those important principles, if not completely disregard them.
KENNEDY: Just, in the brief time left, I have just one question. And that is how the Supreme Court looks to all of you, who represent different traditions -- women, Hispanics, blacks. We want the Supreme Court to be universally respected and their decisions to be respected. And I think most of us believe that to the extent that it can reflect what our society has become in its diversity and with all of its dynamism and creativity and evolving opportunity -- and I'm just wondering whether any of you have a reaction.
I think the congressman has mentioned -- I know we have a short period of time. But if each of you could just take maybe a half a minute or so to tell us what you think in terms of this nominee versus what we are really hopeful of achieving in terms of the Supreme Court that is going to be reflective of our country and our society.
Are you concerned about it? Should it make a difference? Does it make a difference? What you think? Maybe just go down the line. I know my time is up. This will be my last question, obviously.
PRINGLE: I personally would like to see more women justices on the Supreme Court and I hope that is something that we will aspire to as a country. But I'm also pleased to see an Italian-American, first- generation lawyer on the Supreme Court as well.
GONZALES: As an Hispanic, of course, it would be important to have an Hispanic on the Supreme Court of Texas. But, Senator, at the end of the day and in the final analysis, the truth is: Give us anybody up there who will give us a fair shake and is not predisposed. And when we have a president who says I'm going to be nominating individuals more in the mode of Scalia and Thomas, it gives us great cause to pause and ponder and question.
SCHULTZ: This nomination is particularly important because of who Judge Alito would be replacing. He's replacing the first woman to ever serve on the Supreme Court and he's replacing someone who has consistently been the key swing vote in very significant cases that matter to women and minorities in this country. And he has very divergent views from Justice O'Connor, and I think that's incredibly important to note.
WHITE: I think it's extremely important to have a Supreme Court that reflects the people for whom it is interpreting the laws. In the absence of an African-American nominee, I think that Judge Alito was an excellent choice.
TURNER: Thank you, Senator Kennedy.
I believe diversity may be America's greatest asset. And when we fail to embrace our nation's diversity, particularly in an area as important as judicial appointments, we polarize our nation at a time when unity and tolerance of diversity is critically important to our continued advancement as a great nation; critical to our national security and our productivity.
SHAW: Senator Kennedy, I think we're long past the time when a Latino, a Hispanic ought to be on the Supreme Court. I believe in diversity on the Supreme Court is important. But I'm more concerned about the substance of the Supreme Court. The court has been divided in race cases for the last 25 years with a narrow 5-4 edge in most cases. Justice O'Connor was a deciding vote in many of those cases. We didn't always get her vote but it was in play. That's what we are concerned about with respect to this nomination.
(UNKNOWN): Thank you, Mr. Chairman.
Thank all of our panel.
SPECTER: Senator Leahy?
LEAHY: Mr. Chairman, most of the questions have been asked, so I'm not going to ask them again.
I have read carefully the statements of each one of you and I appreciate you being here.
I apologize to others earlier with the memorial service. I was gone.
Representative Schultz, having you here, I could not resist. I had asked Judge Alito several questions about the very deeply personal matter of Terri Schiavo from your state. I was offended as many others were the number of people in elective office running before the cameras to try to grandstand on what was a terrible family tragedy. I saw them trying to overrule the state of Florida and I forget the number of times the state courts in Florida faced this issue.
LEAHY: Twenty. OK. I knew it was a lot. Some members of Congress attacking the judges who upheld state court rulings because it fit their political purposes.
The Florida legislature has passed an unconstitutional measure allowing Governor Bush to intervene. Actually a colleague of yours in the other body even issued a congressional subpoena to prevent Terri Schiavo's medical decisions.
I mention this sad and somewhat outrageous conduct of people who know better, but in every single case attacking the independence of the judiciary. Do you have a sense whether Judge Alito would be one who would value the independent judiciary? I ask this in light of the questions I've asked him on the unitary executive and the situation we now see where the president can sort of write sidebars to everything from torture legislation to spying.
SCHULTZ: I think that that's an extremely important question. And Judge Alito's record is emblematic of the problems with the Terri Schiavo case. His views on privacy are extremely important.
In that case you had the Congress insert itself into a family's private tragedy. You had the state legislature give our own governor the unconstitutional right to overturn a judicial decision. You had time and again the Supreme Court rule that this was a matter that should be decided in state court and decided not to take the case up.
And I think it's a very important question. If that case had gone to the Supreme Court and you had the question of whether Congress actually had the right to insert itself into Terri Schiavo's private family tragedy, how would Judge Alito have ruled?
He has very troubling views about the power and authority of the executive and I think we need to make sure that we zealously guard our legislative authority and make sure that we have a justice on the Supreme Court that supports the system of checks and balances. hand I don't think Judge Alito's record demonstrates that he does.
LEAHY: Thank you.
Thank you very much, Mr. Chairman. Thank you for your patience.
SPECTER: Thank you.
There are two more items that I want to cover.
First, we'll let the panel go.
Thank you very much, Ms. Pringle, Congressman Gonzalez, Congresswoman Schultz, Mr. White, Mr. Turner and Mr. Shaw.
You've been a very enlightening panel and I know how deeply all of your views are held. That's one thing we've seen in this hearing.
Nobody's casual about Judge Alito. Everybody's very decisive. Emotions run deep.
Two items I want to cover.
One in the colloquy with my distinguished ranking member, that is the future schedule on Judge Alito. And then I intend to announce my own decision on my vote now that the hearings are over.
The issue of scheduling has been extraordinarily difficult, as Senator Leahy and I have wrestled with that problem.
Preliminarily, let me say that it has been a pleasure to work with Senator Leahy and I think our collegiality has been demonstrated in many ways, mostly by all of the pictures taken where we're huddled together so that our voices don't carry too far beyond, and also with a sense of humor.
In the bad old days when I had no hair, the only way that Senator Leahy and I could be told apart was by the color of our ties.
LEAHY: You're still wearing the red tie?
SPECTER: And I'm glad to have some hair.
But the scheduling issue has been an important one and it was a difficult issue as to when we would schedule these hearings.
The president, as is well known, wanted the matter decided before Christmas and it seemed to me that was not realistic. We had to do it right and not do it fast.
And then the issue came up, OK, not before Christmas, then when?
And I wanted to start the hearings the day after New Year's. I wanted to start them on January 2nd.
And the Democrats have a right under our committee practices to delay for a week and it seemed to me that, that week could be given from the second to the ninth and that would be the week's delay.
And Senator Leahy and I are under -- we have a lot to consider. We have committee members who have views and we have a caucus, caucuses which have views.
But at any rate, we came to terms on what I thought was done, and Senator Leahy and I then went up to the radio-TV gallery and I want to read a bit of the discussion which we had there.
And I don't do this in a legalistic sense to mind Senator Leahy; I do it to set the parameters as to where we've been and the views that my committee members have and which I have.
And this is the transcript.
Quote, "But at any rate, Senator Leahy and I have worked through it and said it could be delayed a week in any event by any senator who wants to hold it over for a week; that we would put that week back at the start on the ninth with the good-faith understanding that our intent would be to go to the executive committee meeting on the 17th, the day after Martin Luther King holiday. So the schedule will be that we'll start hearings at noon on the ninth, we'll have them on Tuesday the 10th, Wednesday the 11th, Thursday the 12th, Friday the 13th, and Saturday the 14th, if necessary. Then we will go to the exec on the 17th.
"And here we can't get everybody bound in writing to waive in advance, but Pat Leahy and Arlen Specter have had no problems, nor have we, anybody on the committee, of not fulfilling what we have said we'd do as a matter of good-faith intent, which would put the executive session on the 17th. We finished that with Chief Justice Roberts in the morning and then we would go to the 18th, 19th, and 20th for floor debate with a vote on the 20th."
There's more dialogue and Senator Leahy then put in a limitation. Quote, "Obviously, this leaves room if something extraordinary comes up and frankly, neither Senator Specter nor I anticipate or expect," closed quote. And I didn't object to that.
It seemed to me that, that was a reasonable condition which might change what I had said earlier.
It is my intention to adhere to that schedule and to set the executive committee meeting for next Tuesday the 17th in Dirksen 226, our regular hearing room, at 11:00 a.m.
LEAHY: Well, of course, we did this on November 3rd and the discussion was had by the -- you're absolutely right -- by Senator Frist, who was responding to the -- I won't characterize it as pressure but the direction he had received from the White House to vote for it prior to Christmas.
You may recall that Senator Frist at first said that the Senate would adjourn for the year in the first week in October and then that under every conceivable circumstance, the week before Thanksgiving. Instead there was the joyful singing of Christmas carols in the halls as we were finishing up just a few days before Christmas.
Had we followed what the White House had told Senator Frist they wanted and gone before Christmas, of course we couldn't have even had the hearing.
We were having votes every 10 minutes. It would have been chaotic. It would not have been the dignified and thorough kind of hearing we had here. On January 2nd, of course, was a holiday. We could have come back that day and had the hearings.
I think it -- as I stated at the press conference, it would have meant destroying any of the staff's attempt to have any time over the holidays with their families. They had lost much of the -- any of the family time during the normal school vacations in August because we had to prepare for the Roberts hearings.
This was, of course, the third nominee of the president's for this seat, and I would have much preferred, as you know, for a personal reason to have had it the first week in January because of long, long, long-standing personal plans for this week which I canceled because otherwise it would have meant canceling everybody's time with their families at Christmas.
I have been told that a number of our members are going to be home for Martin Luther King events this weekend, will not be back on time on Tuesday, and so they will exercise their rights.
And as you and I discussed privately prior to that press conference, of course any senator could exercise their right to put it over, a right that you and I -- both of us have served as chairman -- something you and I have always protected.
I understand from something the majority leader said that, again, even though the court doesn't come back in until the latter part of February, that the White House has told them they want the hearings to -- or wants the debate to begin before the president's State of the Union.
Even if we had -- I don't have a calendar before me, but even if we had -- if we put this over from next Tuesday to the following Tuesday, there's no reason why then it couldn't be on the floor on Wednesday, which is still one, two, three, four, five, six days prior to the State of the Union -- just in case you're wondering.
SPECTER: Well, this is about the first time Senator Leahy and I haven't agreed on something, but there has to be a first time for everything.
But I propose...
LEAHY: I agree you're a superb chairman. You agree on that, I hope.
SPECTER: And the reciprocity of respect I think is pretty evident the way we've conducted these hearings.
And I appreciate what Senator Leahy has said about the full and fair. And he used the word "dignified," I think they are dignified. There's a Latin maxim, "The exception proves the rule."
There might have been four minutes in the hearing when it wasn't dignified, but we worked through that as well.
About the only thing the respective parties have been able to agree to on this whole proceeding is that Senator Leahy and I have functioned collegially and have produced a full and fair and dignified hearing. And as far as I'm concerned, we're going to proceed on the 17th at 11:00. And if the right of the...
LEAHY: Right of any senator.
SPECTER: Well, if they're held over, they're held over. I had thought we had -- and I don't fault Senator Leahy -- I thought that the Democratic caucus knew what we were doing. And they certainly knew about it after we said it.
But we'll work through this problem like many, many others. This is not a gigantic problem.
LEAHY: I think one of the problems is that whether this affected it or not, I think the fact that the time we were going to wrap up the session, the time which is determined by the leadership, by the majority leadership, kept changing. It kept changing almost day by day by day by day. And it probably has put all the pressure on everything else.
I would hope that we can work this out. Maybe you and I -- we have each other on speed dial at home. And Senator Specter has heard more descriptions about my farm house than -- let's get some of these hearings out of the way and you and I can sit up there and have dinner and have a good time.
But we'll talk about this over the weekend.
SPECTER: Thank you Senator Leahy.
Let me now move to the final item on the committee hearing, and that is the announcement of my position. And I intend to vote to support Judge Alito's nomination for associate justice to the Supreme Court, and I do not do that as a matter of having a party line vote or as a matter of party loyalty.
If I thought that Judge Alito should not be on the Supreme Court, I would vote no, just as I did with Judge Bork. My commitment to the president, as chairman of this, is to give his nominee's prompt hearings and to vote them out of committee.
And I've always believed in that. Before I became chairman, I believed that there had been too many delays on both sides. Both Democrats and Republicans have delayed hearings on judicial nominees -- and that led us to an escalation of events and filibusters and the possibility of a constitutional or nuclear option.
We worked through that. And Senator Leahy and I were instrumental in avoiding what could have been a really cataclysmic event in the Senate.
And I have always believed in voting people out of committee. I recall the days when matters were bottled up in the committee -- and I never agreed with that. And I voted against Judge Bork in committee, but I voted to send his nomination to the floor.
So in fulfilling my commitments to the president and Republican caucus to have prompt hearings and to vote people out of committee -- I believed in that before I was chairman, and I believe in it now.
And after fulfilling those duties, whether I vote aye or nay, that's my independent judgment. Under separation of powers, senators are separate from the executive branch. It would be inappropriate to make a commitment on a vote in advance in any way. And I prize that independence very highly.
With respect to Judge Alito's qualifications, I think that they are agreed to -- no doubt about the quality of his academic standing at Princeton and Yale or his erudition, or his scholarship, working at the Solicitor's General Office and Office of Legal Counsel and then 15 years on the bench.
We could not have held these hearings before when we did into January, because there was so much to do. And this committee's worked very, very hard and I thank not only the members of the committee but the staffs.
The staffs of this committee didn't have an August, a recess, to get ready for Judge Roberts' hearings. We didn't have a December or a November. We haven't had much of a January.
LEAHY: January's not too good so far.
SPECTER: But we wanted to do it right -- and I think we have done it right. We've gone very deeply into Judge Alito's background and studied his record. With respect to the answers which Judge Alito gave, there are going to be differences of views. I thought we had to hear his answers before coming to judgment, and I have urged colleagues on both sides of the aisle not to make up their minds before the hearings are over.
There has been an enormous amount of publicity about Judge Alito, as there was about the White House Counsel Harriet Miers. And as I've said before, Ms. Miers was run out of town on a rail. The nomination was decided in the radio talk shows, TV talk shows, on the op-ed pages and not by the committee -- which is it what the Constitution says should be done. The Senate should make the decision and ought to have a hearing in this committee.
We kept a level playing field for Judge Alito and I was, frankly, a little concerned about the opening statements on both side sides. A lot of accusations on one side and a lot of hyperbole on the other.
And this is not a court of law, but I wanted Judge Alito to have a chance to explain where he stood and not to come to conclusions from the testimony -- it was important to come from him.
I think that his answers in a sense went farther than any in the past, because he did not say that he would not respond because the case might come before the court.
He ultimately refused to give judgments as to how he would vote, but when the issue was raised, he discussed the considerations that would be involved on executive power, a really very important subject, as to whether the resolution for the authorization of use of force comprehends authority to engage in electronic surveillance -- and I don't think it does.
The Foreign Intelligence Surveillance Act is specific on that point.
But we're going to have a hearing -- expect to hear from the attorney general. And the question of whether there's constitutional authority for the president to override a statute because of his Article 2 power -- those questions were put to Judge Alito and he responded with the kinds of considerations which would be involved.
And I think he touched all the bases there, but he wasn't going to say how he was going to rule -- nor should he.
When it came to the question of a court stripping and the amendment taking away habeas corpus jurisdiction from the federal courts on detainees, I think that's an atrocious piece of legislation. I believe it will be declared unconstitutional.
When he was asked about that, he talked about the considerations involved, not how he was going to decide it.
And on Congressional power, I think he agreed that the method of reasoning of Supreme Court justices is not superior to the method of reasoning of Congress and that there ought to be flappy tests, as we talked about Justice Scalia dissent on the Americans with Disabilities Act.
When it came to Roe v. Wade, I think he went about as far as he could go. He started off by saying that he agreed with Griswold, the constitutional right of privacy and the liberty clause, and that it would apply to single people as well in Eisenstadt and that when he was dealing with Casey, the issue of reliance was very important; that he thought it was critical by analogy to what Chief Justice Rehnquist had done in Miranda; that it was a critical factor as to whether a decision was embedded in the culture of the community.
And I certainly think, from my own point of view, Roe is.
And he agreed that it was a living Constitution, subject to change. As Cardozo said in Palco, we're raising the values of the people.
And we had a lot of discussions as to his views on Roe v. Wade and what Judge Roberts -- then Judge Roberts had said. And from my reading, I don't think there's a dime's worth of difference between what Chief Justice Roberts said and what Judge Alito said about that. Both relied heavily on precedents but said that they would not make a final commitment -- nor should they have made a final commitment. I think the judicial panel was very instructive and there had been some precedence for it in the past, although this broke new ground in having as many testify as they did.
And the practice after judges hear arguments to go into conference and discuss it is one which is not widely understood by people.
And Judge Alito went into conferences. He and Judge Becker had sat on more than 1,000 cases.
I believe Judge Becker testified they disagreed only 15 times. Judge Becker received a Devitt Award as one of the -- as the outstanding federal jurist a couple of years ago.
Of course, I know Judge Becker very well because we went to college and law school together and he's been a close friend.
But he didn't exert any undue influence on me. But he testified that Judge Alito had no agenda and was not an ideologue, and so did the chief Judge Scirica.
And, of course, I know the 3rd Circuit because it's my circuit. I've argued a lot of cases in the 3rd Circuit. And I had a hand in the appointment of Judge Scirica to both the district court and the court of appeals and Judge Barry.
And then I thought the testimony of Judge Timothy Lewis was very influential.
And just a word about Judge Lewis. I first heard about him at about 1990 when he was an assistant U.S. attorney in Pittsburgh, an African-American. And Senator Heinz and I were very interested in diversifying the court.
Having an African-American -- hard to find a Republican African- American, still is pretty hard to find. And when we found one, I wanted him on the district court bench.
And I heard about him one morning in Pittsburgh, saw him that afternoon in a hotel lobby and talked to Senator Heinz about him the next day. And he was put on the district court in very fast time, and been on the court of appeals since 1992. And I've known him for more than 15 years.
When he says after knowing Judge Alito as he did, sitting with him, and Judge Lewis being dedicated to pro-choice and to civil rights, being active on the ACLU and pro-choice, that he wouldn't testify for him if there was a doubt in his mind -- I thought that was significant.
We have gone beyond asking some of the witnesses what happens if Judge Alito is rejected. This was an issue in the presidential campaign on both sides. Senator Kerry said he would appoint someone who was pro-choice, and I think President Ford said he would not use a litmus test, and I don't use a litmus test myself.
But at least from those who have been reported in the press who would be considered, I put that question to Congresswoman Schultz and to another Ms. Kate Michelman, whom would they expect to find who would give more credence to thoughtfulness and the precedence in the field.
Well, those are some of my reasons for supporting Judge Alito.
I will prepare a written statement, but I thought it important to state my views now that the hearings are over.
I know that I've already been asked many times by the press how I'm going to vote and I don't want to be coy and I don't want to hold back.
And if the Senate was in session now, I'd wait until the Senate was in session to go to the floor to make a statement, but that's how I think it through.
LEAHY: Yes. I'll just be very brief, Mr. Chairman.
I was finding with interest what you were saying, also interest in the history in Pennsylvania -- as you know, one of my favorite states. I visit there often -- in fact, drive through there when I go the one time a year when I drive to Vermont, usually during the August recess. This time with a trunkload weighted down with all of then- Judge Roberts' writings.
You had mentioned one thing about voting against a Supreme Court justice in committee, but then voting they go on the floor. I think that is a good practice. I joined you on that particular nominee. I had a at least a couple nominees for the Supreme Court whom I voted against in committee and stated what my position was.
But I then voted that they go to the floor of the Senate because I felt, for a Supreme Court justice, we ought to all at least follow Senate procedures where 100 of us could decide what procedure to follow and how to vote.
This is one of the reasons why I felt so frustrated with the 61 -- you were not chairman -- but the 61 of president Clinton's no nominees who were not allowed to vote, but basically pocket- filibustered. I thought it was a bad practice then and I think it's a bad practice -- it's the kind of partisanship that you and I have worked very, very hard to lower.
You and I have tried to go back to the type of sentiment it was when both of us came here.
I'll work with you, of course, on the scheduling of this. I had obviously not realized, one, that it would go so late in the year but, two, that we would have a number who were not prepared to vote on Tuesday and it would just follow the normal rules. But I have no problem voting the following Tuesday.
You actually picked up a couple days by having the markup on a Tuesday, not a Thursday, and voting the following Tuesday. And I guess ifive minutes, a numt would be on the floor then Wednesday and off we go.
Ahem! Excuse me. It is not emotion. It's a Friday afternoon vote. Just as I said, I suspect you and I will vote -- you and I will talk over the weekend. I admire you as a senator and I admire your work as chairman. I've often said that of all the senators, you are my number two choice to be chairman of this committee.
Unfortunately, I don't get my number one unless the Democrats were back in the majority.
SPECTER: Thank you very much, Senator Leahy.
Thank you very much for a full, fair and dignified hearing.
That, ladies and gentlemen, concludes the nomination hearing for Justice Samuel A. Alito Jr. for the Supreme Court of the United States.