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CNN LIVE EVENT/SPECIAL
The Samuel Alito Hearings
Aired January 9, 2006 - 11:55 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
WOLF BLITZER, CNN ANCHOR: To our viewers, you're in THE SITUATION ROOM, where new pictures and information from around the world are arriving all the time.
Happening now, our special coverage of Samuel Alito's confirmation hearings.
It's almost high noon in the Senate hearing room here in Washington. The showdown over Judge Alito is about to begin.
Will the Supreme Court nominee get the fair vote the president is asking for?
This hour, senators give their first hints at how tough the questioning will be.
Plus, the vice president's latest health scare. After spending several hours in the hospital this morning here in Washington, how's Dick Cheney doing right now?
We'll have a progress report.
And let's go to the hearing room right now. We're going to take a look at the Senate hearing room where the confirmation hearings are about to begin.
People are still gathering inside. We're watching all of this from THE SITUATION ROOM. Samuel Alito will be walking in, we're told, shortly as well.
Our congressional correspondent, Ed Henry, is already on the scene for us.
Ed, give us a little sense of what's going on.
ED HENRY, CNN CONGRESSIONAL CORRESPONDENT: Behind me there's a lot of pent-up energy because of the fact that, as you'll remember, Chief Justice John Roberts' hearings last year really became a virtual cakewalk. Harriet Miers never got to this point.
Both sides itching to get it on. The real tension, though, won't build for a few hours.
As you know, as you mentioned, it starts at high noon. Chairman Arlen Specter will gavel everybody in. He'll mostly deal with a little housekeeping at noon about how this is all going to play out this week, hearings from Monday through Thursday. Then at 12:15, Specter will start the 10-minute opening statements by senators, about 20 senators on both sides. He starts, hands it off to the top Democrat, Patrick Leahy.
Judge Alito will be sitting, waiting patiently. Again, a lot of pent-up demand for him as well. But then he'll have to wait some more. At 3:15 Eastern Time they'll take a break, he'll have a half- hour to collect his thoughts. 3:45, then he will be formally introduced to this committee from some home state politicians, Democratic New Jersey senator, Frank Lautenberg, and the Republican former governor of New Jersey, Christine Todd Whitman.
They will be formally introducing Judge Alito. He then starts to speak at 4:00 p.m. Eastern Time.
He will not be taking any questions today. He will just formally start his presentation, hand it back to the senators. They'll think about it overnight, and they'll start the questioning early tomorrow -- Wolf.
BLITZER: The fact that Frank Lautenberg is going to be introducing him, a Democratic senator from New Jersey, does that mean that Lautenberg has now formally endorsed and will be voting to confirm Samuel Alito?
HENRY: Absolutely not. This is a common courtesy, a tradition, really, that your home state senators, regardless of party, will introduce you. You can bet Frank Lautenberg and many other Democrats will be having questions inside and outside the hearing room.
Lautenberg is not on the Judiciary Committee, but he's somebody who will be certainly watching these hearings closely.
The other senators, as you know, Jon Corzine, has actually been elected the new governor-elect of New Jersey. So he's not going to be here. But they're going to bring in Christine Todd Whitman as the former governor, have a Democrat and a Republican. That's pretty much the tradition -- Wolf.
BLITZER: And the whole notion -- the whole notion of this hearing, it's supposed to go on obviously today, tomorrow, Wednesday, Thursday. What is the timeline that the chairman would like a final vote by the committee to take place?
HENRY: Well, Chairman Specter really wants to get as much done as possible this week so that perhaps he can move as early as next week to a committee vote. There's some talk that the hearings will go on not just through Thursday, but it can continue on, on Friday or Saturday, if they absolutely have to, because Specter wants to get that done, vote early next week, and then move it on to the Senate floor for a full debate before the president's State of the Union Address later this month.
So, Republican leaders really want to get it moving. There's been some talk that Democrats may slow-walk it a little bit. They've denied that so far. But the bottom line is that Republican leaders want to get all this done, the committee work and then the full Senate vote, hopefully by the end of January -- Wolf.
BLITZER: All right. Jeff Greenfield, Jeff Toobin are here in THE SITUATION ROOM with us. They're going to be with us all week as we watch these hearings unfold.
Jeff Greenfield, it's going to be, by almost all accounts, a lot more contentious than it was four months ago during the John Roberts confirmation process.
JEFF GREENFIELD, CNN SR. ANALYST: Right, for three quick reasons.
Everybody conceded that Justice Roberts -- or Judge Roberts then -- was a homerun, both in terms of qualifications and temperament. And there was no paper trail.
Second, Judge Alito, unlike Judge Roberts, has a much longer record of saying certain things about his views of the Constitution, some of which are going to be contentious.
And third, the whole issue of national security power of the president that came out in the wake of the story of NSA warrantless looks at conversations, Judge Alito has a record of being very deferential toward executive power, and Chairman Specter, for one, has already indicated publicly he intends to make that a key focus of his questions.
So it is going to be a lot more contentious, I think, than the Roberts hearings.
BLITZER: As we see Senator Kennedy, Senator Hatch and other senators get ready to start sitting down. I think that's the back of Herb Kohl's head. Yes, it is, the Democratic senator from Wisconsin who voted to confirm John Roberts, one of three Democratic members of the Judiciary Committee to confirm John Roberts.
Jeff Toobin, will abortion rights for women be the single-most important, most sensitive issue that will dominate these hearings over the next few days?
JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: I think it will. You know, every time we think that the Supreme Court might go -- get on to some other issue, Roe v. Wade and abortion and privacy rights remains the central issue in the Supreme Court of our generation. And his answers I think will determine whether the Democrats can peel off any Republican supporters of the president.
BLITZER: I think it's fair the first questions from Arlen Specter, once the formal questioning starts tomorrow, will deal with abortion.
TOOBIN: Those were the first questions he asked Chief Justice Roberts. I am certain they will be the first questions he'll ask Judge Alito.
GREENFIELD: I have one footnote to that, though. I think here the people who have doubts about Alito are going to be much tougher than they were about Roberts and some other past nominees about his unwillingness to engage. Because he has been so explicit in the past of what he's thought, he may have the same problem in lesser degree, but some of the problem that Robert Bork had of being unable to say, "I can't talk about that," because he's on the record in the way that Judge Roberts wasn't.
So the question may be less, what do you think about abortion, but why won't you tell us and how can we confirm if you will duck what you said before?
BLITZER: And Samuel Alito just walked into the hearing room. There you see him in the middle of the screen with his back to us right there, and the chairman, Senator Arlen Specter, is there. He's welcoming Samuel Alito, together with Patrick Leahy and other members of the committee, including Orrin Hatch.
As we watch this picture, let me bring in our White House correspondent, Elaine Quijano.
The president kicked off the day in the Rose Garden with Samuel Alito -- Elaine.
ELAINE QUIJANO, CNN WHITE HOUSE CORRESPONDENT: That's exactly right, Wolf. And keep in mind it has been more than two months now since President Bush first announced his decision to choose Samuel Alito as his Supreme Court nominee.
This morning, as you mentioned, the president starting his day with Judge Alito. The two had breakfast, held a meeting, and then appeared briefly before reporters in the Rose Garden. The president praising Judge Alito as eminently qualified.
Here's a little bit of what the president had to say.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Sam Alito is eminently qualified to be a member of the bench. I'm not the only person that feels that way. The American Bar Association looked at his record, looked at his opinions, looked at his temperament, and came to the same conclusion, that he is well qualified to be a Supreme Court judge.
(END VIDEO CLIP)
QUIJANO: Now, the president also made it a point several times, interestingly, Wolf, to use the word or some version of the word "dignified." The president saying that he felt it was important that members of the Senate conduct a dignified hearing. He said the Supreme Court is a dignified body. And he said Sam is a dignified person.
So the president obviously looking forward with much anticipation of his hearings.
BLITZER: All right. Let's go right to the hearings, Elaine, and the chairman, Arlen Specter.
SEN. ARLEN SPECTER (R-PA), CHAIRMAN, JUDICIARY COMMITTEE: ... the Supreme Court of the United States.
A few matters of administration or housekeeping, and then we will proceed to the opening statements.
Today we will hear first from Judge Alito's introduction of his family.
Judge, the floor is yours to introduce your family.
SAMUEL A. ALITO, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT: Thank you very much, Mr. Chairman.
Let me introduce my wife Martha, who's here today. And my sister Rosemary, who's a lawyer in New Jersey and a tough trial lawyer. I'm glad that she took time from her schedule to come to the hearing today.
My daughter Laura, who is a senior at James Caldwell High School in West Caldwell, New Jersey, and if a father can be permitted to brag for a second, a really great swimmer who led her high school team to win the county championship last week.
My son Philip who's a second-year student at the University of Virginia.
And when I had my confirmation hearing for the Court of Appeals, Philip was 3 years old. And when I was called up to the chair he took it upon himself to run up and sit next to me in case any hard questions came up.
I don't know whether he's going to try the same thing tomorrow, but probably I could use the help.
I'm glad that my in-laws are able to be here today. My father- in-law, Gene Bomgardner, who is a retired Air Force NCO. And my mother-in-law, Barbara Bomgardner, who is a retired Air Force librarian.
And my cousins, Andrew and Alda Mercurio (ph) from Lynn Valley (ph), Pennsylvania, are also here.
My mother, who turned 91 a couple of weeks ago, unfortunately is not able to be here today, but I'm sure she's watching at home.
ALITO: Thank you very much, Mr. Chairman.
SPECTER: Well, thank you, Judge Alito. You have a beautiful family, and we're delighted to have them with us on the confirmation proceedings.
We will have 10-minute rounds of opening statements: each senator, 10 minutes. We will then turn to the presenters of those who will be presenting Judge Alito formally to the committee. And then we will administer the oath to Judge Alito and we will hear his testimony.
We will begin tomorrow morning at 9:30 for the opening round of questions. Each senator will have 30 minutes on the opening round and we have a second round scheduled of 20 minutes for each senator. And then we will see how we will proceed.
Our practice is to adhere to the time limits. And we do that for a number of reasons. One of them is that senators come and go and if we maintain the schedule which is known to everybody, they know when to return for their next round of questions.
We will take 15-minute breaks at a convenient time. And again, we will hold the breaks to 15 minutes.
I've worked closely with Senator Leahy on scheduling matters and all other matters. And this is the model that we used for the confirmation of Chief Justice Roberts.
It is our intention to conclude the hearings this week. And as Senator Leahy and I worked out the arrangements to have a markup on Tuesday of January 17th, subject to something extraordinary happening.
SPECTER: Now let me yield to the distinguished ranking member, Senator Leahy.
SEN. PATRICK J. LEAHY (D), VERMONT: Well, Mr. Chairman, I don't want to hold up your opening statement or the others.
I do appreciate people being here. As the Roberts hearings showed -- for Chief Justice John Roberts -- there will be real questions asked, I would hope. I would hope senators on both sides of the aisle would do that. I think it's important, when we are talking about a position representing 295 million Americans.
On the schedule, I will work with the senior senator from Pennsylvania, the chairman. I understand, as one of our leaders once said, getting senators to all move in order is like having bullfrogs in a wheelbarrow.
But we will continue to work with that. I think the most important thing is we have a good solid hearing this week.
And, Mr. Chairman, you have been totally fair in your procedures for this, as always.
SPECTER: Thank you very much, Senator Leahy.
And now we begin the opening statements.
No senator's vote, except for the declaration of war or the authorization for the use of force, is more important than the confirmation of a nominee for the Supreme Court for a lifetime appointment. Judge Alito comes to this proceeding with extensive experience as a government lawyer, as a prosecutor and as a judge. He has written some 361 opinions. He has voted in more than 4,800 cases. And it is possible to select a few of his cases to place him at any and every position on the judicial spectrum. By selecting the right cases, he can look like a flaming liberal or he can look like an arch- conservative.
This hearing will give Judge Alito the full opportunity to address the concerns of 280 million Americans on probing questions which will be put to him by 18 senators representing their diverse constituencies.
I have reserved my own nomination on this -- my own vote on this nomination until the hearing is concluded. I'm committed, as chairman, to a full, fair and dignified hearing. Hearings for a Supreme Court nominee should not have a political tilt for either Republicans or Democrats. They should be in substance and in perception for all Americans.
There is no firmly established rule as to how much an a nominee must say to be confirmed. While I personally consider it inappropriate to ask a nominee how he would vote on a specific matter likely to come before the court, senators may ask whatever they choose and the nominee is similarly free to respond as he chooses.
It has been my experience that the hearings are really, in effect, a subtle minuet, with the nominee answering as many questions as he thinks necessary in order to be confirmed.
Last year, when President Bush had two vacancies to fill, there was concern expressed that there might be an ideological change in the court. The preliminary indications are from Chief Justice Roberts' performance on the court and his Judiciary Committee testimony on modesty, stability and not jolting the system, all suggest that he will not move the court in a different direction.
If that holds true, Judge Alito, if confirmed, may not be the swing vote regardless of what position Judge Alito takes on the political spectrum.
Perhaps the dominant issue in these hearings is the widespread concern about Judge Alito's position on a woman's right to choose. This has risen, in part, because of a 1985 statement made by Judge Alito that the Constitution does not provide for the right to an abortion. It has risen, in part, because of his advocacy in the Solicitor General's Office seeking to limit or overrule Roe and from the dissenting portion of his opinion in Casey v. Planned Parenthood in the 3rd Circuit.
This hearing will give Judge Alito the public forum to address the issue, as he has with senators in private meetings, that his personal views and prior advocacy will not determine his judicial decision, but instead, he will weigh factors such as stare decisis -- that is, what are the precedents -- that he will weigh women's and men's, too, reliance on Roe, and he will consider, too, whether Roe is, quote, "embedded," in the culture of our nation.
The history of the court is full of surprises on the issue. The major case upholding Roe was Casey v. Planned Parenthood, where the landmark opinion was written jointly by three justices: Justice O'Connor, Justice Kennedy and Justice Souter.
Before coming to the court, Justice Souter, Justice Kennedy and Justice O'Connor had all expressed views against a woman's right to choose. David Souter, as attorney general of New Hampshire, even opposed changing New Hampshire's law prohibiting abortion, even after the Supreme Court of the United States had declared it unconstitutional.
At the time of Justice Souter's confirmation hearing, there was a Stop Souter rally of the National Organization for Women a few blocks from where we currently are holding this hearing, displaying in red a banner: "Stop Souter or women will die." Stop Souter Rally, a mass lobbying day -- somewhat similar to this morning's press where banners are paraded in front of the Supreme Court, "Save Roe," and brochure circulated again by NOW, "Save women's lives; vote no on Alito." So the history of this issue has been one full of surprises.
This hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority. The president's constitutional powers as commander in chief to conduct electronic surveillance appear to conflict with what Congress has said in the Foreign Intelligence Surveillance Act.
This conflict involves very major considerations raised by Justice Jackson's historic concurrence in the Youngstown Steel seizure cases, where Justice Jackson wrote, quote, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum for it includes all that he possesses in his own right and all that Congress can delegate. When the president acts in absence of a congressional grant of authority, he can rely only upon his own independent powers. When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb."
And as Justice Jackson noted, quote, "What is at stake is the equilibrium established in our constitutional system."
Another major area of concern is congressional power. And, in recent decisions, the Supreme Court of the United States has declared acts of Congress unconstitutional, really denigrating the role of Congress.
In declaring unconstitutional legislation designed to protect women against violence, the Supreme Court did so notwithstanding a voluminous record in support of that legislation, but because of Congress', quote, "method of reasoning"; rather insulting to suggest that there is some superior method of reasoning in the court.
When the Supreme Court handled two cases recently on the Americans for Disability Act, they upheld the act as it applied to discrimination as to access and declared it unconstitutional as it applied to discrimination in employment. They did so by applying a test of what is called "congruent and proportionate," which, candidly stated, no one can figure out.
In dissent, Justice Scalia called it a, "flabby test, where the court set itself up as the taskmaster to see if Congress had done its homework." And Justice Scalia said that it was, "an invitation to judicial arbitrariness by policy-driven decision-making."
And this hearing, I know will involve consideration as to Judge Alito's views on congressional power.
There is reason to believe that our Senate confirmation hearings may be having an effect on Supreme Court nominees on their later judicial duties. Years after their hearings, Supreme Court justices talked to me about our dialogues at these hearings.
This process has now evolved to a point where nominees meet most of the senators. In this process, nominees get an earful. While no promises are extracted, statements are made by nominees which may well influence their future decisions.
Chief Justice Roberts, for example, will have a tough time giving a jolt to the system after preaching modesty and stability.
There is, I think, a heavy sense of drama as these hearings begin. This is the quintessential example of separation of powers under our constitutional process, as the president nominates, the Senate confirms or rejects and the successful nominee ascends to the bench.
While it may be a bit presumptuous, I believe the framers, if they were here, would be proud and pleased to see how well their constitution is being applied.
My red light just went on and I now yield to my distinguished colleague, Senator Leahy.
LEAHY: Thank you, Mr. Chairman.
Good afternoon, Judge and Mrs. Alito and the others.
You know, following up on what the chairman was saying, the challenge for Judge Alito in the course of these hearings is to demonstrate that he's going to protect the rights and liberties of all Americans and, in doing that, serve as an effective check on government overreaching.
I have said that the president did not help his cause by withdrawing his earlier nomination of Harriet Miers in the face of criticism from the narrow faction of his own party who were concerned about how she might vote.
Supreme Court nominations should not be conducted through a series of winks and nods designed to reassure a small faction of our population, while leaving the American people in the dark. I think we'd all agree, no president should be allowed to pack the courts, especially the Supreme Court, with nominees selected to enshrine presidential claims of government power.
The checks and balances that should be provided by the courts, Congress and the Constitution are too important to be sacrificed to a narrow, partisan agenda.
So this hearing is the opportunity for the American people to learn what Samuel Alito thinks about their fundamental constitutional rights and whether he -- you, Judge -- will protect their liberty, their privacy and their autonomy from government intrusion.
The Supreme Court belongs to all Americans, not just to the person occupying the White House and not just to a narrow faction of either political party.
The Supreme Court is our ultimate check and balance. Independence of the court and its members is crucial to our democracy and our way of life.
And the Senate should never be allowed to be a rubber stamp. Neither should the Supreme Court. So I will ask the judge to demonstrate his independence from the interest of the president appointing him or nominating him.
This is a nomination to a lifetime seat on the nation's highest court. It's going to a seat that's often represented the decisive vote on constitutional issues, so we have to make an informed decision. That means knowing more about Samuel Alito's work in the government and knowing more about his views.
I will, as the judge knows, ask about the disturbing memorandum he wrote to become a political appointee in the Meese Justice Department. In that, he professed concern with the fundamental principle of one person, one vote, a principle of the equality that's the bedrock of our laws.
And this hearing is the only opportunity that the American people and their representatives have to consider the suitability of the nominee to serve as a final arbiter on the meaning of the Constitution and its laws.
Has he demonstrated commitment to the fundamental rights of all Americans? Will he allow the government to intrude on Americans' personal privacy and freedoms?
In a time when this administration seems intent on accumulating unchecked power, Judge Alito's views on executive power are especially important. It's important to know whether he would serve with judicial independence or as a surrogate for the president nominating him.
And so this public conversation, this hearing over the next few days, is extremely important. It's the people's Constitution and the people's rights that we're all charged with protecting and preserving. In this hearing, we embark on the constitutional process, one that was designed to protect these rights and has served this country for so very well for more than two centuries.
I'm reminded of a photograph, Mr. Chairman, that hangs in the National Constitution Center in Philadelphia. Shows the first woman ever to serve on the Supreme Court of the United States taking the oath of office in 1981. Justice Sandra Day O'Connor serves as a model Supreme Court justice, widely recognized as a jurist with practical values, a sense of the consequences of the legal decisions being made by the Supreme Court.
And I regret that some on the extreme right have been so critical of Justice O'Connor and have adamantly opposed the naming of a successor who shares her judicial philosophy and qualities. And their criticism actually reflects poorly upon them. It does nothing to tarnish the record of the first woman to serve an associate justice of the Supreme Court of the United States.
She's a justice whose graciousness and sense of duty fuels her continued service, even agreeing to serve more than six months after her retirement date. And I know both you and I commend her for that.
The court that serves America should reflect America. This nomination was an opportunity, of course, for the president to make a nomination based on diversity. He didn't, even though there's no dearth of highly qualified Hispanics and African-Americans, other individuals who could well have served as unifying nominees while adding to diversity.
Actually I look -- but that, of course, is the president's choice, Judge, not yours. But I look forward to the time when the membership of the Supreme Court's more reflective of the country it serves.
Now, as the Senate begins its consideration of President Bush's nominee, his third to this seat, to Justice O'Connor's seat, we do so mindful of her critical role on the Supreme Court. Her legacy is one of fairness. And when I decide how to vote it's because I want to see that legacy preserved.
Justice O'Connor has been a guardian of the protections the Constitution provides the American people. She's come to provide balance and a check on government intrusion into our personal privacy and freedoms.
In the Hamdi decision, she rejected the Bush administration's claim that it could indefinitely detain a United States citizen. She upheld the fundamental principle of judicial review over the exercise of government power.
And she wrote -- and this is one we should all remember -- she wrote that even war is not a blank check for the president when it comes to the rights of the nation's citizens. She held that even this president is not above the law. And of course no president, Democratic or Republican -- no president -- is above the law, as neither are you, nor I, nor anyone in this room.
Her judgment has also been critical in protecting our environmental rights. She joined in 5-4 majorities affirming reproductive freedom and religious freedom and the Voting Rights Act.
Each of these cases -- and I mention them because they make how important a single Supreme Court justice is -- and it's crucial that we determine what kind of justice Samuel Alito would be if confirmed. And of course, Judge, my question will be: Will you be an independent jurist?
It is as the elected representatives of the American people, all the people, nearly 300 million people, that we in the Senate are charged with the responsibility to examine whether to entrust their precious rights and liberties to this nominee.
The Constitution is their document. It guarantees their rights from the heavy hand of government intrusion and the individual liberties to freedom of speech, to religion, to equal treatment, to due process and to privacy. Actually, this hearing, this is their process.
The federal judiciary is unlike the other branches of government. And once confirmed, a federal judge serves for life. And there's no court above the Supreme Court. So the American people deserve a Supreme Court justice who can demonstrate that he or she will not be beholden to the president, but only to the law.
Last October, the president succumbed to partisan pressure from the extreme right of his party by withdrawing Harriet Miers. And by withdrawing her nomination and substituting this one, the president has allowed his choice to be vetoed by an extreme faction within his party before even a hearing or a vote.
Frankly, that was an eye-opening experience to me. It gives the impression that there are those who do not want an independent federal judiciary. They demand judges who will guarantee the results that they want.
And that's why the questions will be asked so specifically of you, Judge. The nomination is being considered against the backdrop of another revelation: that the president has, outside the law, been conducting secret and warrant-less spying on Americans for more than four years.
This is a time when the protections of Americans' liberties are directly at risk, as are the checks and balances that have served to constrain abuses of power for more than 200 years. The Supreme Court is relied upon by all of to us protect our fundamental rights.
Now, I have not decided how I will vote in this nomination and, like the chairman, I will base my determination on the whole record at the conclusion of these hearings, just as I did in connection with the nomination of John Roberts to be chief justice. At the conclusion of those hearings, I determined to vote for him. Stakes for the American people could not be higher. At this critical moment, Senate Democrats serving on this committee will perform our constitutional advice and consent responsibility with heightened vigilance.
But I would urge all senators -- Republicans, Democrats, independents -- to join us with in serious consideration. The appointment of the next Supreme Court justice must be made in the people's interest and in the nation's interest, not in the interest of any partisan faction.
Mr. Chairman, thank you very much.
SPECTER: Thank you very much, Senator Leahy.
SEN. ORRIN G. HATCH (R), UTAH: Thank you, Mr. Chairman.
I welcome you, Judge Alito, your family members, friends and others who are accompanying you.
This hearing is part of an ongoing evaluation of Judge Samuel Alito's nomination to replace Justice Sandra Day O'Connor as associate justice of the Supreme Court of the United States.
It is remarkable that after a nearly record-long period without a Supreme Court vacancy, we are hear considering a second nominee in less than six months.
Mr. Chairman, let me first commend you for firmly and fairly handling these hearings. The timetable we are following reflects your efforts to accommodate all sides. And the 70 days since President Bush announced the nomination significantly exceeds the average for other Supreme Court nominees.
The debate over this and other judicial nominations is a debate over the judiciary itself. It is a debate over how much power unelected judges should have in our system of government, how much control judges should have over a written constitution that belongs to the people. Ending up in the right place in this debate requires starting in the right place. The right place to start is the proper discrimination of what judges are supposed to do, and the rest of the process should reflect this judicial job description.
The process for evaluating Judge Alito's nomination began when President Bush announced it more than two months ago. It continued with his meetings -- with Judge Alito's meetings -- with more than two-thirds of the senators and a vigorous debate in the media and among analysts, scholars and activists.
As the Senate completes the evaluation process, we must keep some very important principles in mind and follow a few basic rules. The first principle is that in this judicial selection process, the Senate and the president have different roles. Under the Constitution, the president, not the Senate, nominates and appoints judges. The Senate has a different role. We must give our advice about whether President Bush should actually appoint Judge Alito by giving or withholding our consent.
Abiding by the Constitution's design and our own historical tradition require that after Judge Alito's nomination reaches the Senate floor, we vigorously debate it and then vote up or down.
The second principle is that in our system of government, the judicial and legislative branches have different roles. As Chief Justice Roberts described it when he was before this committee last fall, judges are not politicians. Judges must decide cases, not champion causes. Judges must settle legal disputes, not pursue agendas. Judges must interpret and apply the law, not make the law.
This principle that judges are not politicians lies at the very heart of a judicial job -- of the judicial job description.
In addition to these two principles, a few basic rules should guide how we complete this confirmation process.
First, we must remember that judicial nominees are constrained in what they may discuss and how they may discuss it.
Like Chief Justice Roberts and others before him, Judge Alito is already a federal judge. He not only will be you bound by the canons of judicial ethics as a Supreme Court justice, he is already bound by these canons as an appeals courts judge. Because judges may not issue advisory opinions, judicial nominees may not do so either, especially on issues likely to come before the court. That rule has always been honored.
Needless to say, those who will demand such advisory opinions in this hearing will do so precisely on those issues that are likely to come before the court. They have a right to ask those questions. But as "The Washington Post" editorialized just this morning, however, quote, "He will not and should not tell Americans how he will vote on hotly contested issues," unquote.
When Judge Ruth Bader Ginsburg was before us in 1993, she said that her standard was to give no hints, no forecasts, no previews, and declined to answer dozens of questions.
The second rule we should follow is to consider each part of Judge Alito's record on its own terms for what each part actually is.
BLITZER: All right, Orrin Hatch explaining that Judge Alito should not go forward and answer specific questions on issues that are likely to come up before the Supreme Court. Jeff Greenfield, we're getting a little flavor already of the kind of questions that Judge Alito can anticipate, both from the chairman and the ranking Democrat.
GREENFIELD: Right. Specter has been very clear from the beginning he wants to talk not only about abortion, but about this whole issue of the extent of executive power and the court's respect for the Congress. But we've already heard from Pat Leahy, the ranking member, and I strongly expect we're going to hear from other Democrats in attempt to fold this nomination controversy into the story about NSA spying and how big executive power will be. I think every Democrat is likely to take a shot at the administration for that.
BLITZER: And there are a few Republicans who might do something about that, as well.
TOOBIN: That's why the issue has some potency for those who are opposing Alito's nomination, because it has a chance of bringing some Republicans along who are jealous of Congress' powers. And that's why -- you know, these are contemporary political events.
You know, in THE SITUATION ROOM pictures behind us during the Roberts' confirmation hearings, we still had Katrina recovery going on. The country just wasn't focused on Roberts. That's one reason, besides his eminent qualifications, that he had such an easy time. This is a different time and the NSA story, which broke on December 16th, has changed the political dynamic again in Washington and we'll see if that has any implications.
BLITZER: All right, after Orrin Hatch speaks, we'll hear the opening statement from Senator Ted Kennedy. We're going to have all of this coming up. We'll take a quick break.
This reminder to our viewers. CNN Pipeline streaming all of these hearings non-stop. If you want to watch it there, you can go to CNN.com. CNN Pipeline.
We'll take a quick break. We're standing by. More of Orrin Hatch, then Senator Ted Kennedy's opening statement, right after this short break.
BLITZER: Orrin Hatch wrapping up his opening statement. We're standing by for Senator Ted Kennedy, Democrat of Massachusetts, a veteran member of this Senate Judiciary Committee. We're watching the hearings of Judge Samuel Alito to be an associate justice of the U.S. Supreme Court.
When we hear Senator Kennedy -- I just want to preview this a little bit. He's going to make a big deal, at least based on all of his statements, about Alito as a circuit court judge not recusing himself from a case involving Vanguard, a stock -- an investment company, and he's going to say this speaks ill of this nominee.
GREENFIELD: There have been cases in the past where nominees have gotten into trouble because of alleged conflicts of interest. It was used, a lot of people think unfairly, to help defeat the nomination of Judge Clement Haynsworth in 1969.
But the real reason is, I think that the opponents of Alito feel that ideology alone won't defeat them. They need to find something that might be bigger than that.
BLITZER: And Kennedy is just beginning right now.
SEN. EDWARD KENNEDY (D), MASSACHUSETTS: I appreciated the opportunity to visit with you in my office a few weeks ago. And I was particularly impressed by your personal family story of how you were encouraged to do well and contribute to your community. And I also applaud your dedication to public service throughout your lifetime.
Supreme Court nominations are an occasion to pause and reflect on the values that make our nation strong, just and fair. And we must determine whether a nominee has a demonstrated commitment to those basic values.
Will a nominee embrace and uphold the essential meaning of the four words inscribed above the entrance of the Supreme Court building: Equal justice under law?
Justice Lewis Powell spoke for all of us when he said: Equal justice under law is perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system exists.
As we have seen from Justice O'Connor's example, even one justice can profoundly alter the meaning of those words for our citizens. Even one justice can deeply affect the rights and liberties of the American people.
Even one justice can advance or reverse the progress of our journey. So the question before us in these hearings is this: Does Judge Alito's record hold true to the letter and the spirit of equal justice? Is he committed to the core values of our constitution that are at the heart of our nation's progress. And can he truly be even- handed and fair in his decisions?
In a way, Judge Alito has faced this issue before as a nominee to the court of appeals. I had the privilege of chairing his confirmation hearing in 1990. And at that time, he had practiced law for 14 years, but only represented one client, the United States government.
And I asked whether he believed he could be impartial in deciding cases involving the government. And in that hearing, Judge Alito said on the record that the most important quality for a judge is open- mindedness to the arguments. And he promised the committee that he would make a very conscious effort to be absolutely impartial. We took him at his word and overwhelmingly confirmed him to the 3rd Court of Appeals.
We now have the record of Judge Alito's 15 years on the bench and the benefit of some of his earlier writings that were not available 15 years ago. And I regret to say that the record troubles me deeply.
In an era where the White House is abusing power, is excusing and authorizing torture and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling.
Under the president's spying program, there are no checks and balances. There is no outside review of the legality of this brazen infringement on the civil rights and liberties of the American people. Undeterred by the public outcry, the president vows to continue spying on American citizens.
Ultimately, the courts will make the final judgment whether the White House has gone too far. Independent and impartial judges must assess the proper balance between protecting our liberties and protecting our national security.
I'm gravely concerned by Judge Alito's clear record of support for vast presidential authority unchecked by the other two branches of government.
In decision after decision on the bench, he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans.
And in his writings and speeches, he has supported a level of overreaching presidential power that, frankly, most Americans find disturbing and even frightening.
In fact, it is extraordinary that each of the three individuals this president has nominated for the Supreme Court -- Chief Justice Roberts, Harriet Miers and now Judge Alito -- has served not only as a lawyer for the executive branch, but has defended the most expansive view of presidential authority.
Perhaps that is why this president nominated them.
But as Justice O'Connor stated, even a state of war is not a blank check for a president to do whatever he wants. The Supreme Court must serve as an independent check on abuses by the executive branch and the protector of our liberties, not a cheerleader for an imperial presidency.
There are other areas of concern. In an era when too many Americans are losing their jobs or working for less, trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of the individual citizens. He has acted instead in favor of government, large corporations and other powerful interests.
In a study by the well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents.
To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.
In an era when America is still too divided by race and by riches, Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job: in 15 years on the bench, not one.
And when I look at that record in light of the 1985 job application to the Reagan Justice Department, it's even more troubling. That document lays out an ideological agenda that highlights his pride in belonging to an alumni group at Princeton that opposed the admission of women and proposed to curb the admission of racial minorities.
It proclaims his legal opinion that the Constitution does not protect the right of women to make their own reproductive decisions.
It expresses outright hostility to the basic principle of one person, one vote, affirmed by the Supreme Court as essential to ensuring that all Americans have a voice in their government.
This application was not a youthful indiscretion. It was a document prepared by a mature, 35-year-old professional.
Finally, many of us are concerned about conflicting statements that Judge Alito has made in response to questions from this committee and others. As Chairman Specter has stated, this confirmation largely depends on the credibility of Judge Alito's statements to us. And we have questions.
When asked about the ideological statements and specific legal opinions in his 1985 application, Judge Alito has dismissed those statements as "just applying for a job."
When he was before this committee in 1990, applying for a job to the circuit, he promised under oath that he would recuse himself from cases involving Vanguard, the mutual fund company in which he had most of his investments.
But, as a judge, he participated in a Vanguard case anyway and has offered many conflicting reasons to explain why he broke his word. We need to get to the bottom of this matter to assure ourselves that what Judge Alito says in these hearings will not be just words, but pledges that guide him in the future if he is confirmed.
Judges are appointed by and with the advice and consent of the Senate. And it is our duty to ask questions on great issues that matter to the American people and to speak for them.
Many Republican senators certainly demanded answers from Harriet Miers. We should expect no less from Judge Alito. There is no time for a double standard.
If confirmed, Judge Alito could serve on the court for generation or more. And the decisions he will make as justice will have a direct impact on the lives and liberties of our children, our grandchildren, and even our great-grandchildren.
We have only one chance to get it right and a solemn obligation to do so.
So, Judge Alito, I have serious questions to ask. I congratulate you on your nomination and I look forward to your answers in these hearings.
BLITZER: A tough opening statement from Senator Ted Kennedy, outlining his concerns over the Alito nomination. Jeff Greenfield, for those of us who have followed Kennedy's statements over these past several weeks leading up to today's confirmation hearing not a huge surprise. But you know, he says nice things about family and the friends. But quite a contrast to 1990, when he barely asked him a question before confirming him for the circuit court.
GREENFIELD: Right, and, well, of course on lower court judges that often is the case, that you're not as focused. But here, we were talking just before the Kennedy statement, you see the outlines of this attack, and this is what it was, laid out clearly, going at him on being outside the mainstream, and that's a phrase you are going to hear a lot. But also questioning him on credibility, saying you told us one thing you were going to do on the court, with your (INAUDIBLE). You didn't do it. Your explanations are contradictory. It's been the case in the past that nominees get into more trouble on credibility and character questions than ideology in most cases. And it seems to be that's the terrain that Kennedy is trying to plow here.
BLITZER: He didn't mince any words, Kennedy. You need to explain, he said to him, why he broke his word. That's basically calling him a liar.
TOOBIN: About these Vanguard investments, and the issue again, as Jeff said, it's not so much the substance of what went on, but it's the credibility. Alito's problem on this Vanguard investment, it was a rather trivial case. It didn't really matter much, certainly mattered not at all to the value of his investments, but there has been a shifting investigation of why he recused himself, whether he had to recuse himself. Certainly in the murder boards he has been doing for these past many weeks he hasn't answered on these Vanguard investments, and we'll see if it's persuasive to the senators. I imagine it probably will be.
GREENFIELD: Can I just translate that, murder boards. That's when the nominee sits with actually supporters and faces the toughest possible questions that other people can ask.
TOOBIN: I apologize for speaking beltway-ese. Jeff's exactly right.
BLITZER: Basically rehearsals.
GREENFIELD: Thank you. That's even even plainer English.
BLITZER: Yes, all right, we're going to take a quick break. We're going to have much more of the confirmation hearings. They're only just beginning right now. Remember CNN.com, you can go to pipeline, CNN Pipeline, watch all of the hearing, unfiltered, streaming, on your desktop, all the time, CNN.com.
We'll take a quick break. We're also getting a brand new CNN/"USA Today"/Gallup poll in on Samuel Alito, what the American public thinks about this nominee.
(COMMERCIAL BREAK) BLITZER: Welcome back. We're watching the Samuel Alito confirmation hearings before the Senate Judiciary Committee. Even as we watch these hearings unfold, we're getting some brand new poll numbers.
Our senior political analyst Bill Schneider is joining us now live. He's got the latest numbers, what the American public thinks about this nominee. What do they say?
WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: What they say before the confirmation hearings, of course, is that they are inclined to support the confirmation of Judge Alito. Just shy of a majority, 49 percent of Americans, say they'd be inclined to support his confirmation; 30 percent would oppose his confirmation. Notice 21 percent -- that's a very high number -- have no opinion.
What's the big issue here? Whether Judge Alito, Samuel Alito, is too extreme. The Americans feel he is -- no, 52 percent -- that's just over majority -- say that he's in the mainstream of American political life. Thirty percent, same number as who oppose his confirmation, say his views are too extreme. And, again, almost 20 percent say they have no opinion. They haven't seen him yet in the confirmation.
What would "too extreme" mean in this case? Suppose you are convinced, the public was asked, after the confirmation hearings that Alito would overturn the Roe Versus Wade decision? Then, a solid majority, 56 percent, say that they would oppose his confirmation.
Wolf, the public accepts a lot of limitations and restrictions on abortion rights. But they don't like the idea of the constitutional right to abortion being taken away. Alito, as we heard this morning, has been critical of the Roe decision, but his supporters say, he would be respectful of precedent.
And Arlen Specter, who himself is pro-abortion rights, said he would not allow his personal views and private advocacy to influence his rulings, which would be based, Specter said, he believes, on the facts and on the law.
That's going to be the big test. For most Americans, being too extreme means supporting the overturn of the Roe decision.
BLITZER: Very interesting. Bill Schneider, thanks very much. Our senior political analyst Bill Schneider, with the latest CNN/"USA Today"/Gallup poll numbers on Samuel Alito.
Republican Senator Chuck Grassley is making his opening statement. He'll be followed by Democratic senator Joe Biden of Delaware. Let's go back to the hearing.
SEN. CHARLES GRASSLEY (R-IA), JUDICIARY CMTE: ... by our democratic system not to overstep their positions to become policy makers or super-legislators. Supreme Court nominees should know without any doubt that their job is not to impose their own personal opinions of what is right and wrong, but to say what the law is, rather than what they personally think the law ought to be.
Supreme Court nominees should know that this exercise of judicial restraint is the key ingredient of being good judge, as the Constitution constrains judges every bit as much as it constrains we legislators, executives and citizens in their actions.
Moreover, Supreme Court nominees should be individuals who not only understand, but truly respect the equal roles and responsibilities of different branches of government and our state governments.
As Alexander Hamilton said Federalist No. 78, quote, "The courts must decide the sense of the law. And if they should be disposed to exercise will instead of judgment, the consequences would be the substitution of their pleasure to that of the legislative body."
Our Framers expected the judicial branch to be the "least dangerous branch of government."
At our meeting in my office in November, I heard Judge Alito place emphasis on the limited role of the courts in our democratic society. He also reiterated this belief in the questionnaire that he submitted to this committee.
So I have some idea of how Judge Alito approaches the law and views the role of a judge. I'm hopeful that his commitment to judicial restraint and to confining decisions to the law and the Constitution will shine through in this hearing. And I believe it will.
And I'm hopeful that my colleagues will give Judge Alito a civil, a fair and a dignified process, as well as an up-or-down vote on the floor because, as always, the Constitution sets the standard; the president nominates; the Senate deliberates; and, then, we are obligated to give our advice and consent in an up-or-down vote.
Judge Alito, I congratulate you.
SPECTER: Thank you very much, Senator Grassley.
SEN. JOSEPH BIDEN (D), DELAWARE: Thank you, Mr. Chairman.
Mrs. Alito and your family, welcome.
It's an incredible honor to be nominated by a president of the United States to be associate justice of the Supreme Court.
BIDEN: And you're to be congratulated.
Judge, this may be one of the most significant or consequential nominations that the Senate will vote on since I've been here in the last three decades. And I think history has delivered you, fortunately or unfortunately, to a moment where Supreme Court historians far into the future are going to look back on this nomination and make a judgment whether or not with your nomination and if you are confirmed, whether the jurisprudence of the Supreme Court began to change from the consensus that existed the last 70 years or whether it continued on the same path it has over the past six or seven decades.
And that moment is right now. And lest we think -- it's kind of like we all go through this process, and I liked the phrase "minuet," that the chairman used -- we all act like there is not an elephant in the room.
The truth of the matter is there is significant debate among judicial scholars today as to whether or not we've gone off on the wrong path with regard to Supreme Court decisions.
There's a very significant dispute that's existed in 5-4 decisions over the past two decades in a court that's very closely divided on the critical central issues of the day.
And so just to make it clear, I'm puzzled by some of the things you said, and I'm sure you're going to get a chance to tell me what you meant by some of the things you wrote and said.
But in your job application you talked about being proud, as you should be, to be proud of your subscription to and adhering to notions put forward in the National Review; that you're a proud member of the Federalist Society; the National Conservative Political Action Committee; the American spectator is something you look to, et cetera. These are really very bright folks. They all have a very decided opinion on the issues of the day; very decided.
And those very organizations I've named think, for example, we misread the Fifth Amendment and have been misreading it for the past three decades. Those same groups argue that we have, in fact -- there is no right of privacy in the Constitution, et cetera.
So people aren't making this up. In a sense, this is not about you. You find yourself in the middle of one of the most significant national debates in modern constitutional history.
And so because you've been nominated to replace a woman, in addition, who has been the deciding vote on a significant number of these cases -- since 1995 there have been 193 5-4 decisions. And Justice O'Connor 77 percent of the time has been the deciding vote.
And for 70 years there's been a consensus among scholars and the American people on a reading to the Constitution that protects the right of privacy, the autonomy of individuals, while at the same time empowering the federal government to protect the less powerful.
Only recently has the debate come that states' rights are being trumped in a fundamental way, reading of the 10th Amendment and 11th Amendment. That's a legitimate debate, totally legitimate.
But anybody who pretends that how you read the 10th and 11th Amendment doesn't have a fundamental impact on the things we care about is kidding themselves. They're either uninformed or they're kidding themselves.
So, Judge, there's a genuine struggle going on well beyond you, well beyond the Congress, in America about how to read the Constitution.
And I believe at its core we have a Constitution, as our Supreme Court's first great justice, Marshall, said in 1819, and I quote, "intended to endure for the ages to come and consequently to be adapted to the various crises of human affairs."
That's the crux of the debate we're having now: whether it is an adaptable Constitution. A lot of my friends make very powerful and convincing arguments, and they may be right that, "No, no, no, no, it is not adaptable. It is not adaptable."
And since our country's founding, we've tried to keep government's heavy hand out of our personal lives, while ensuring that we do the most important thing, which is to protect those who cannot protect themselves.
And the debate raging today is about whether we'll continue along that path or whether our courts will continue -- and whether our courts will continue to be one of the places where society puts the little guy -- and I know this is not something you're supposed to say -- the little guy on the same footing with the big guy. The one place that David is equal to Goliath is in the Supreme Court.
And it's also important to note that you're slated to replace the first woman ever nominated to the Supreme Court. We can pretend that's not the fact but it is. And through no fault of your own, we're cutting the number of women in half on the court.
And now, as I said, that's not your fault, but I think it means that have to take -- at least speaking for myself -- a closer look at your stands on issues that are important to women.
And moreover, Justice O'Connor brought critical qualities to the high court that not everybody thinks are qualities -- I happen to think they are -- her pragmatism and her state craft. Not that I've always agreed with what she said -- far from it -- but Justice O'Connor has been properly lauded, in my view, as a judge who approached her duties with open-mindedness and with a sensitivity that affects her decisions would have on everyday, ordinary people.
She, unlike, Judge Bork, did not think that being on the court would be an "intellectual feast," to quote Judge Bork.
Justice O'Connor also brought balance to our highest court; most recently, as been repeated many times, when she cautioned about how war doesn't give a blank check.
Her decisions reflect, in my view, that our society has worked very hard to improve the workaday world, to open doors to workers confronted by powerful employers and for women facing harassment and stereotypes.
Now, I acknowledge these are very tough jobs a judge has in determining whether or not there is an openness that is required under the Constitution. But I also acknowledge that prejudice runs very deep in our society. And, in the real world, discrimination rears its ugly head in the shadows, where it's very difficult to root it out. But Justice O'Connor was not afraid to go into the shadows.
The Constitution provides for one democratic moment, Judge, before a lifetime of judicial independence, when the people of the United States are entitled to know as much as we can about the person that we're about to entrust with safeguarding our future and the future of our kids.
And, Judge, simply put: That is this moment, the one democratic moment in a lifetime of absolute judicial independence. And that's what these hearings are about, in my view.
In the coming days, we want to know about what you believe, Judge, how you view the Constitution, how you envision the role of the federal courts, what kind of justice you would seek to become.
As I said, this one democratic moment when the people, through their elected representatives, get to ask questions of a president's choice for the highest court. And I hope you'll be forthcoming.
I cannot imagine, notwithstanding what many of my colleagues who I have great respect for believe, I can't imagine the founders when they sat down and wrote the document and got to the appointments clause said: You know what? The American people are entitled know before we make him president, before we make her senator, before we make him congressman what they believe on the major issues of the day.
But judges, Supreme Court nominees, as long as they're smart and honest and decent, it really doesn't matter what they think. We don't have to know.
I can't fathom -- can't fathom that that was the intent of the founders. They intended the American people to know what their nominees thought.
And I might add -- and I'll end with this -- we just had two Supreme Court justices before our caucus, just as they were before, I think, the Republican Caucus. They ventured opinions on everything, on everything, things that were going to come before the court. It did not in any way jeopardize their judicial independence.
So, Judge, I really hope that this doesn't turn out to be a minuet. I hope it turns out to be conversation.
I believe we -- you and I and this committee -- owe it to the American people in this one democratic moment to have a conversation about the issues that will affect their lives profoundly. They're entitled to know what you think.
And I remind my colleagues, many of which are on this committee, they sure wanted to know what Harriet Miers thought about everything. They sure wanted to know in great detail. They were about ready to administer a blood test.
The good news is, no blood test here. The good news is, no blood test, just a conversation. And I hope you'll engage in it with us because I'm anxious to get a sense of how you're going to approach these big issues.
I thank you very much, Judge.
SPECTER: Thank you, Senator Biden.
SEN. JOHN KYL (R), ARIZONA: Thank you, Mr. Chairman.
Welcome, Judge Alito, to your confirmation hearing.
At the outset, I'm pleased to note that you have more judicial experience than any Supreme Court nominee in more than 70 years. Indeed, only one Supreme Court justice in history, one Horace Lurton, nominated by President Taft, had more federal appeals court experience. Moreover, you've devoted virtually your entire professional life to public service, and the nation owes you gratitude for that service.
I look forward to a dignified hearing followed by a fair up-or- down vote on the Senate floor.
Before discussing your nomination, I'd like to take a moment to express my respect and admiration for the justice whom you're nominated to replace, my fellow Arizonian, Sandra Day O'Connor, whom I've known for more than 30 years.
Justice O'Connor has served with great distinction during her career in the Arizona legislature, on the Arizona Court of Appeals and for what has been a quarter of a century on the United States Supreme Court.
Arizonians are deeply proud of Justice O'Connor's service to this country. She will always be remembered by Arizonans and all Americans as an extraordinary public servant.
Judge Alito, I'd like to discuss your background and experience in the context of other justices on the Supreme Court so that everyone understands how well you satisfy what we have come to expect from our top judges.
Like all the sitting justices, you had an outstanding education. One of your classmates at Yale Law School, Tony Kronman, who later went on to be the dean of the law school and could I believe fairly be described as a political liberal has recently remarked, and I quote, "He impressed me," speaking of you, "as being more interested in the technical, intellectual challenges of the law and its legal reasoning than its political uses or ramifications." Thus, even in your early 20s, it appears you were focused on the law as an independent pursuit, rather than using law to influence political ends.
With your intellect and education, you could have become a wealthy attorney, but instead you devoted virtually all of your legal career to the public service. In doing so, you meet and even exceed the stellar examples set by Justices Thomas and Souter, each of whom devoted most of their pre-judicial careers to public service.
Perhaps this is because, like Justices Ginsburg and Scalia, you had a father who was an immigrant to this nation. It seems that immigrants often have a special understanding of the incredible opportunities that this nation affords its citizens.
Moreover, your father's long service to the people of New Jersey, both as a school teacher and as a civil servant in the state legislature, plainly served as a model for you.
I also note that you served in the U.S. Army Reserves from 1972 until 1980. If confirmed, only you and Justice Stevens would have any military experience. You would also be the first Supreme Court justice to have served in the Army reserve since Justice Frank Murphy did so during World War II.
You've spent much of your career as a federal prosecutor, pursuing terrorists, mob kingpins, drug dealers and others who threaten our safety and our security. Justice Souter had a distinguished career as a state prosecutor, but no justice sitting justice has served as a federal prosecutor. Again, this experience could prove helpful, given that approximately 40 percent of the Supreme Court docket involves criminal matters.
You also served as attorney in the executive branch. Like Chief Justice Roberts, you served in the Solicitor General's Office representing our government before the Supreme Court. And like Justice Scalia, you served in the Office of Legal Counsel, providing constitutional advise to the president and to the rest of the executive branch.
In both of these roles, your job was to advance the policies of a president who twice won an electoral college landslide. He set the agenda and you helped him implement it.
Similarly, Justice Thomas served Presidents Reagan and Bush in political legal capacities, and Justice Breyer also worked in political jobs, both in President Johnson's Justice Department and as a lawyer to this committee.
I note that you were just 39 when nominated to serve on the 3rd Circuit. Justice Kennedy was only 38 when nominated to the 9th Circuit, and Justice Breyer only 42 when nominated to the 1st Circuit. Like them, you now have a great deal of hands-on experience that you can bring to the court for years to come.
During your judicial service, you amassed an impressive record for the Senate to review, including more than 350 authored opinions. It is this judicial record that should be the focus of this committee, just as it was with all of the other sitting justices on the court.
It appears to me that you easily fit into the mold of what this nation has come to expect from Supreme Court justices: a first-rate intellect, demonstrated academic excellence, a life of engagement with serious constitutional analysis, and a reputation for fair-mindedness and modesty.
These are the standards for a Supreme Court justice, and you plainly meet these expectations. As a consequence, I view your nomination with a heavy presumption in favor of confirmation.
Before I conclude, I'd like, though, to address two other points.
First, some of my colleagues are fond of asking the question: Which side are you on? You've heard that today.
Politicians must pick sides regularly; every time they vote. So it's perhaps natural that they see the world as a battle between competing groups.
But it is wholly inappropriate as an approach to the judicial role. The only relevant side is that of the law and the Constitution. We do great injury to the integrity of the court system when we start speaking of sides and stop devoting ourselves to the pursuit of impartial justice.
During Chief Justice Roberts' confirmation hearings, I was struck by the way he answered the question. Then Judge Roberts explained that he had been asked earlier in the confirmation process: Are you going to be on the side of the little guy? Roberts explained that this question troubled him, and this is how he answered.
He said, "If the question says that the little guy should win, the little guy is going to win. But if the Constitution says that the big guy should win, well, then, the big guy is going to win because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that I will look out for particular interests. The oath is to uphold the Constitution and the laws of the United States."
And this is the essence of justice. Our courts provide a neutral forum for the adjudication of disputes under the law, not based on economic or political power, on race, on sex or any other personal characteristics.
Big guy and little guy, it should make no difference. The rule of law demands neutrality.
Second, I want to address the proper scope of questioning during these hearings, a matter that's also come up already.
As I reminded Chief Justice Roberts at his hearings, the American Bar Association Model Code of Judicial Conduct dictates that, and I quote: "A judge or a candidate for election or appointment to judicial office shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."
In other words, no judicial nomination should answer any question that is designed to reveal how the nominee will rule on any issue that could come before the court.
This rule has come to be known as the Ginsburg standard because Justice Ginsburg stated during her own confirmation hearings that she would give no forecasts, no hints about how she would rule on issues.
And I was pleased to see that Chief Justice Roberts refused to prejudge issues or make promises in exchange for confirmation votes. We're all better off because of his principled stand.
Soon after his confirmation, Justice Ginsburg was asked about this Ginsburg standard as applied to the Roberts hearings and she said: "Judge Roberts was unquestionably right. My rule was I will not answer a question that attempts to project how I will rule in a case that might come before the court," end quote.
In other words, Justice Ginsburg reaffirmed the Ginsburg standard.
In light of the chief justice's confirmation hearings and Justice Ginsburg's later remarks, I ask my colleagues for basic fair play.. Apply the same standards to Judge Alito that we applied to John Roberts, Stephen Breyer, Ruth Bader Ginsburg and all of the other sitting justices.
Let's not invent a new standard for Judge Alito or change the rules in the middle of the game. Politicians must let voters know what they think about issues before the election. Judges should not.
And it's not a hypothetical matter. Senator Kennedy in his opening statement expressed concern about the extent of the executive branch's authority to conduct surveillance of terrorists and said, ultimately, the courts will decide whether the president has gone too far. Indeed, they will.
Judge Alito, I'll tell you the same thing I told John Roberts. I expect you to adhere to the Code of Judicial Conduct.
And I want you to know that I will strongly defend your refusal to give any indication of how you might rule on any matter that might come before you as a judge or to answer any question that you believe to be improper under those circumstances.
Congratulations, Judge Alito, on your nomination.
SPECTER: Thank you, Senator Kyl.
SEN. HERB KOHL (D), WISCONSIN: I thank you, Mr. Chairman. Judge Alito, let me also extend my welcome to you this afternoon and to your family.
BLITZER: All right. We heard from Senator Jon Kyl, Republican of Arizona, basically reiterating what Orrin Hatch and other Republicans said, warning, suggesting that Samuel Alito not answer specific questions, presumably on such positions (ph) like abortion rights for women, issues that could come before the Supreme Court if, in fact, he's confirmed as the next associate justice of the Supreme Court.
The themes that we're hearing from Democrats and Republicans, Jeff, coming through loud and clear.
GREENFIELD: I don't think there's any doubt that this is -- if this were a stereo performance, the right speaker and left speaker are playing two different tunes.
I think every Republican is going to say the Ginsburg standard applies, meaning Ruth Bader Ginsburg. Don't answer anything that will tell us how we're going to vote. Let's stick to your qualifications.
And the Democrats clearly are signaling not just an assault on his opinions, but the fact that they think they can make the case that he has a credibility problem.
It seems to me also just very briefly that the pitch of some of these Democratic -- what do you want to call them, interventions, speeches is aimed at a couple of moderate Republican senators, Olympia Snowe, Susan Collins, perhaps a couple of others, who they hope can be persuaded to oppose Alito sufficiently, to not only support a filibuster if it comes to that but to not vote to end judicial filibusters. I do think that's the game plan that we'll see played out over the next couple of weeks.
TOOBIN: I think the truest thing that has been said on this subject of what questions should be answered is when Chairman Specter said at the beginning, he said nominees answer however many questions it takes to get confirmed.
This is a political process. There are no unchanging, immutable rules about what questions you can answer. You answer enough questions so that you wind up getting 50-plus votes in the Senate.
At this point it looks like the fewer the better. John Roberts had a rather minimalist approach to answering questions. He didn't really give a lot of answers about how he would rule. It seems like Alito is going to follow in that tradition. It worked very well for Roberts.
BLITZER: But the senators will ask the questions. It's not -- it's not clear how the witness will necessarily respond.
GREENFIELD: The one thing about this process today, I have to say, is that I regard this as the first test f any nominee. It's a trial by ordeal, which is probably banned by the Eighth Amendment prohibition on cruel and unusual punishment. Sam Alito has to sit there pretending that he's interesting for three straight hours as 18 senators talk at him and the cameras. And I guess the first test is, and I would fail it, if you don't stand up and say, "Would you guys stop and let me -- this is a hearing. Why don't you hear me?" So this is the first test they have to pass, I think.
BLITZER: All right. We're going to -- we're going to continue our coverage of this confirmation hearing. Much more coming up.
Remember, you can always go to CNN.com, watch the hearing that's being streamed on CNN.com/pipeline. You can get all the hearings unfiltered right there, as well, though we're going to have much more of our own coverage coming up.
We're also going to update you on the latest reports on the health of the Israeli prime minister, Ariel Sharon, as well as the vice president of the United States, Dick Cheney, who was rushed to the hospital, George Washington University Hospital here in Washington, earlier today. We'll update you on what's going on with the vice president as well.
Much more of our special coverage from right here in THE SITUATION ROOM right after this.
BLITZER: Historic hearings underway at the U.S. Senate right now. The confirmation hearings of Judge Samuel Alito to be the next associate justice of the Supreme Court, succeeding Sandra Day O'Connor. We're watching the hearings. We're going to go back there live momentarily, but we want to update you on some other important news happening right now.
CNN's Kyra Phillips is standing by at the CNN Center in Atlanta -- Kyra.
KYRA PHILLIPS, HOST: Thanks, Wolf.
Encouraging word about the lone survivor of the Sago mine disaster. Doctors say that Randal McCloy continues breathing on his own. His brain stem appears to be normal, and he's starting to respond to stimuli. McCloy is still in what they call a moderate coma and has developed a slight fever. But doctors say that's to be expected. Physical therapists plan to start working with him today to help the blood flow through his arms and legs.
In nearby Upshur County, townspeople people are gathering for the funerals of three more of McCloy's fellow miners. Six were held yesterday, most of them private. Today services are being held for Thomas Anderson, Marshall Winans and Jim Bennett. Another two will be buried tomorrow. The 12th funeral has yet to be planned.
Small, but significant, a big step down a long road. Doctors in Jerusalem are publicly encouraged by some movement in Ariel Sharon's right arm and leg as they gradually wean him off the anesthesia. Almost five days after the Israeli prime minister suffered a major cerebral hemorrhage, he is also said to be breathing on his own, though still hooked up to a respirator and still in serious condition. The movements came, and doctors were poking and prodding.
(BEGIN VIDEO CLIP)
DR. SHLOMO MOR-YOSEF, HADASSAH HOSPITAL: His response to pain that we evoked, he started to move, minimally, his right hand and right leg. This sign, together with a slight elevation of his blood pressure, as a reaction to the pain, are signs of some activities of his brain.
(END VIDEO CLIP)
PHILLIPS: And it will still be days before doctors can try to asses Sharon's ability to think and speak.
Vice President Dick Cheney is recovering after a brief health scare. He left George Washington Hospital this morning about four hours after he arrived complaining of shortness of breath. Cheney's spokeswoman says the condition wasn't related to his heart problems. Rather, doctors found he was retaining fluid after taking anti- inflammatory drugs for a foot problem. It's a common side effect that can strain the heart muscle. Cheney was placed on a diuretic and then released.
And check out some of these numbers straight from the New York Stock Exchange, Wolf. The Dow Jones Industrial Average crossed the 11,000 mark for the first time since before the 9/11 terrorist attacks, It's buoyed now a new -- new year's rally that's basically sent the stock prices soaring. We're going to keep monitoring those numbers from the New York Stock Exchange -- Wolf.
BLITZER: Good numbers from Wall Street. Thanks, Kyra, very much. We'll check back with you very soon.
We're watching the confirmation hearings of Judge Samuel Alito unfold. Important hearings, all of the various senators, the 18 members of the committee, ten Republicans, eight Democrats. They're making their opening statements. We're going to go back there momentarily.
But let's get some analysis of what's going on. Let's bring in our political analysts, Donna Brazile and Bay Buchanan.
Donna, the Republicans certainly would like to make everyone this is a fait accompli, it's inevitable. He's going to be confirmed. And you know, what's the big hang-up?
DONNA BRAZILE, DEMOCRATIC STRATEGIST: Well, the big hang-up is the word balance. Democrats are afraid that this Judge Alito may tip the balance of the court. Remember, this is Sandra Day O'Connor's seat. And for many people who have watched the court over the last couple of years, she has provided the most important votes in many of the 5-4 cases involving civil rights and civil liberties. So the important thing is that it's about the balance of the court and the Democrats will not allow the court to tilt to the right.
BAY BUCHANAN, PRESIDENT, AMERICAN CAUSE: Not allow, they will certainly try to stop it, but the place where they should have tried to stop it, of course, was in the election, because this is why George Bush was elected.
The social conservatives want that balance thrown, Wolf, as everybody knows. They want to have somebody addressing these issues that will come in more in line with what George Bush believes.
But I think what their real problem today is just looking at this candidate. First of all, if he can last three or four hours looking interested in all these things, he should be confirmed just for that alone. That's an enormous accomplishment. But he...
BLITZER: That's the price of admission.
BUCHANAN: That is. But look at him. And what is the American people seeing when they see him? He comes across as an extremely thoughtful, intelligent jurist and somebody that it's hard to make a case that this is kind of a wide and high passionate conservative.
Sure, he's conservative in his philosophy, but in his mannerisms, in his temperament, he's extremely moderate and thoughtful person, obviously experienced, which is another key issue. He's the top. He's the best of the best that America has.
BLITZER: But there are, Donna, some controversial statements he made, especially in that 1985 letter he wrote applying for an important job in Ed Meese's Justice Department. Statements that potentially, if the Democrats have their way, could come back to haunt him.
BRAZILE: There's no question. In applying for this position he boasted his views on abortion and believing that abortion could be -- Roe could be overturned. He boasted his views on other issues, affirmative action being one.
In 2000, he gave a speech to the Federalist Society on unitary executive, the supreme powers of the executive branch. Mr. Alito will have to answer some questions in order to make Democrats feel a lot more comfortable about this nomination.
BUCHANAN: But we should have expected that kind of nominee, surely because of what Bush says he would give us is the Scalia, Thomas type of jurist, who is a conservative one who believes just as...
BRAZILE: But a lot has changed since Mr. Alito was put forward. Remember, Mr. Bush put forward Harriet Miers, and that nomination was taken down by the objections of real strong conservatives.
BRAZILE: And so if Mr. Alito is a rubber-stamp conservative jurist that would overturn Roe and set us back on individual rights and individual liberties, Democrats will not support his nomination.
BLITZER: Let's go back to the hearings. Senator Mike Dewine, Republican of Ohio, speaking.
SEN. MIKE DEWINE (R), OHIO: In recent years the court has struck down some laws that, in my opinion, did not deserve such a fate.
Take, for instance, the Americans with Disabilities Act. It passes Congress with overwhelming bipartisan support. The law was supported by an extensive, factual record, and it was based on our government's longstanding constitutional power to fight discrimination wherever it exists.
When the court considered the ADA in the Garrett case, however, it ignored the act's broad support, cast aside the legislative record and struck down a portion of the law. The decision was a close one, five to four. The majority relied on a highly controversial legal theory. And the case evoked a vigorous descent.
This is precisely my problem with Garrett. In such a difficult case, where the Constitution does not clearly support the majority's decision, the proper response is not to strike down the law. In such a case, the court should defer to the will of the people.
In other ways, Judge, the court's recent decisions have made life more difficult for the democratic institutions that perform the day- to-day work of our nation.
Recent cases involving affirmative action and the posting of the Ten Commandments on public property would seem to me at least to prove the point.
The court has upheld one affirmative action program at the University of Michigan but struck down another one, and has allowed the posting of the 10 Commandments outside of a public building but banned it on the inside in another case.
To add to the confusion, some of the court's decisions involved multiple concurrences and dissents, making it hard even for lawyers and judges to figure out what the law is and why.
Chief Justice Roberts mentioned this problem at his hearing, and in one of his final statements as chief justice, William Rehnquist noted that one of the court's decisions had so many opinions within it that he, and I quote, "didn't know we had so many justices on the court."
What has emerged in certain areas, therefore, is a patchwork, a patchwork that leaves local officials, state legislators, members of Congress and the public guessing what the law permits and what it does not.
In 1937, President Franklin Roosevelt reminded us that the Constitution is, and I quote, "a layman's document, not a lawyer's contract." But that very document does little to serve people when Supreme Court decisions are written so that even high-priced lawyers can't figure them out.
Now, I'm not the first to have raised these democratic concerns. Many have faulted the court for its lack of clarity in certain cases and many have criticized its recent lack of deference to decisions made by state legislatures and Congress.
In fact, some have even suggested that this recent trend has transformed our democracy from one founded on, "We the people," to one ruled by, "We the court."
To me, the criticism has some force. The Constitution empowers the people to resolve our day's most contentious issues. When judges forget this basic truth, they do a disservice to our democracy and to our constitution.
Judges are not members of Congress, they're not state legislators, governors, nor presidents. Their job is not to pass laws, implement regulations, nor to make policy.
To use the words of Justice Byron White, words that I quoted at our last Supreme Court hearing, "The role of the judge is simply to decide cases" -- to decide cases, nothing more.
And, Judge, from what I've seen so far, you don't need much reminding on this score. Your decisions are usually brief and to the point. You write with clarity and common sense. And in most cases, you defer to the decision-making of those closest to the problem at hand.
I don't expect to agree with every case that you decide, but your modest approach to judging seems to bode well for our democracy.
Over the next several days, the members of this committee will question you to find out what kind of justice you will be. This hearing is really our opportunity to try to answer that question.
Our constitutional system is founded on democracy: the will of the people, not the unchecked rule of judges. If confirmed, it will be your job to faithfully interpret our Constitution and to defend our democracy, case by case.
I wish you well.
SPECTER: Thank you, Senator DeWine.
SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Thank you very much, Mr. Chairman.
Welcome, Judge Alito.
I'm one that believes that your appointment on the Supreme Court is a pivotal appointment. And because you replace Sandra Day O'Connor and because she was the fifth vote on 148 cases, you well could be a very key and decisive vote.
And so during these hearings, I think it's fair for us to try to determine whether your legal reasoning is within the mainstream of American legal thought and whether you're going to follow the law regardless of your personal views about the law.
And since you have provided personal and legal opinions in the past, I very much hope that you will be straightforward with us, share your thinking and share your legal reasoning.
Now, I'd like to use my time to discuss with you some of my concerns. I have very deep concern about the legacy of the Rehnquist court and its efforts to restrict congressional authority to enact legislation by adopting a very narrow view of several provisions of the Constitution, including the commerce clause and the 14th Amendment.
This trend, I believe, if continued, would restrict and could even prevent the Congress from addressing major environmental and social issues of the future.
As I see it, certain of your decisions on the 3rd Circuit raised questions about whether you would continue to advance the Rehnquist court's limited view of congressional authority. And I hope to clear that up.
But let me give you one example here, and that's the Rybar case. Your dissent argued that Congress lacked the authority to ban the possession and transfer of machine guns based essentially on a technicality that congressional findings from previous statutes were not explicitly incorporated in the legislation.
You took this position, even though the Supreme Court had made clear in 1939, the Miller case, that Congress did have the authority to ban the possession and transfer of firearms and even though Congress had passed three federal statutes that extensively documented the impact that guns and gun violence has on interstate commerce.
I'm concerned that your Rybar opinion demonstrates a willingness to strike down laws with which you personally may disagree by employing a narrow reading of Congress' constitutional authority to enact legislation.
Now, the subject of executive power has come up. And indeed it is a very big one/ I think we're all concerned about how you approach and decide cases involving expanded presidential powers.
And recently there have been several actions taken by the administration that highlight why the constitutional checks and balances between the branches of government are so essential. These include the use of torture, whether an expansive reading of law or disregarding Geneva Conventions, including the Convention on Torture; whether the president is bound by ratified treaties or not; allowing the detention of American citizens without providing due process -- of course, Sandra Day O'Connor was dispositive in the Hamdi case -- whether the president can conduct electronic surveillance on Americans without a warrant, despite legislation that establishes a court process for all intelligence for all electronic surveillance.
I'm also concerned with the impact you could have on women's rights, and specifically a woman's right to choose. In the 33 years since Roe was decided, there have been 38 occasions on which Roe has been taken up by the court.
The court has not only declined to overrule Roe, but it has also explicitly reaffirmed its central holding.
In our private meeting, when we spoke about Roe and precedent, you stated that you could not think of a case that's been reviewed or challenged more than Roe. You also stated that you believe that the Constitution does provide a right of privacy and that you have a deep respect for precedent.
However, in 1985, you clearly stated that you believed Roe should be overturned and that the Constitution does not protect a woman's right to choose.
So despite voting to sustain Roe on the 3rd Circuit, your opinions also raise questions about how you might rule if not bound by precedent. And of course, obviously, I'd like to find that out.
I'm also concerned about the role the court will play in protecting individual rights in this and the next century.
Historically, the court has been the forum to which individuals can turn when they believed their constitutional rights were violated. This has been especially noteworthy in the arena of civil rights.
And, as has been mentioned, in that same 1985 job application, you wrote that while in college, you developed a deep interest in constitutional law, and then you said, motivated in part by disagreement with the Warren court's decision, particularly in the areas of criminal procedure, the establishment clause and reapportionment.
Now, of course, it was the Warren court that brought us Brown v. the Board of Education and, of course, reapportionment is the bedrock principle of one man, one vote. So exactly what you mean by this, I think is necessary to clear up.
Now, additionally, Justice O'Connor was a deciding vote on a critical affirmative action case involving the University of Michigan, Grutter v. Bollinger, so your views may well here be pivotal. So I think the American people deserve to know how you feel, how you think, how you would legally reason affirmative action legislation.
When you served in the Solicitor General's Office during the Reagan administration, you argued in three cases against the constitutionality of affirmative action programs. Then once on the 3rd Circuit you sided against the individual alleging discrimination in about three-quarters of the cases before you.
So we have a lot to learn about what your views are, your legal reasoning, and how you would apply that legal reasoning. So I really look forward to the questions. And once again, because this appointment is so important, I hope you really will be straightforward with us and thereby be really straightforward with the American people.
So thank you and welcome.
SPECTER: Thank you, Senator Feinstein.
BLITZER: All right. The only woman on the Senate Judiciary Committee, Dianne Feinstein, staking out the line of questioning she will begin tomorrow, once the questioning process actually begins. Today the 18 members of the Senate Judiciary Committee all making opening statements.
At some point later this afternoon Samuel Alito will be sworn in. He will make his opening statement and only then and then they'll take a break and then the questioning will actually start tomorrow.
But Bay Buchanan, she does outline some tough areas that she wants to get answers on and it will be hard for Samuel Alito to simply say if I'm confirmed I'll have to deal with these issues, so I can't really answer your questions on abortion rights, Roe versus Wade and some of the other sensitive issues that Dianne Feinstein just laid on.
BUCHANAN: The Democrats will make try to make it tough for him. They're going to want him to make statements that he can comfortably say, if there is an issue that could be before The Supreme Court, I cannot tell you how I'll rule on it.
But he will say and he'll repeatedly say, and if you look at his career as a judge, he will interpret the law. That is his boss, the law, The Constitution. That's what will cause him, the facts of the case, apply The Constitution and here's how it will come up.
That's what they're going to have to be comfortable with. That is what conservatives are comfortable with. We do not have to have him say, I will overturn Roe v. Wade to support him. We will not ask that. We ask him to interpret The Constitution and we hope for the best.
BLITZER: Is that going to be good enough?
BRAZILE: No, I don't think so. The Democrats are not going to say how will you vote on this particular issue, where will you come down on affirmative action and abortion. They are going to say what are you view on checks and balance and what are your views on affirmative action. They are going to try to ascertain his views.
We know he has strong beliefs. We've read all his opinions. We saw the job application, and so Democrats are going ask those important questions.
BUCHANAN: The Democrats don't have the votes. So what do they do if he doesn't? That's the key, Wolf. Is how much does he have to do in order to keep the Democrats from filibustering.
BRAZILE: The Democrats will not be intimidated by the fact that we don't have the votes. This is a very important position. This is the swing vote in the court.
BLITZER: What the Democrats will do, they'll read from the job application statement he made in 1985 in which he said this, he was not a kid. He was a 35-year-old lawyer at the time. He said I am particularly proud of my contributions in recent cases in which the government has argued in The Supreme Court that racial and ethnic quotas should not be allowed, and then he goes on and says, and that the constitution does not protect a right to an abortion.
So they'll say, Bay to him, what do you mean that the constitution doesn't protect the right to an abortion. He's going have to say something.
BUCHANAN: What I hope he says is it doesn't. My golly, it doesn't.
BLITZER: Do you think moderate Republicans like Olympia Snow --
BUCHANAN: In fairness, in truth, it doesn't. You have liberal Democrats who acknowledge that The Constitution as it was written does not indeed protect the right of a woman to have an abortion. He will not answer that way. He has been told not to answer that way.
So what he will do is say I was applying for a job. That was my personal view and whether it is my personal view today or not is irrelevant because, as a judge, I interpret the law and my personal views do not play a role in that. That's how he will answer it.
BRAZILE: The constitution, as it was written, did not give full democracy to all of its citizens. Many Americans, myself included had to be amended in through a long and lengthy process that took centuries to happen and one of the things that Democrats will ascertain, this is a very important position for all Americans. It's about fairness.
And again, Dianne Feinstein, I think, raised some important issues. Affirmative action, individual rights and liberty, the commerce clause and congressional politics, these are issues that will have to be addressed if Mr. Alito is confirmed.
BLITZER: We will continue our discussion and our analysis. We will continue watching this hearing unfold. It's still going go on. Lots more senators will be making their opening statements and then we'll hear directly from Samuel Alito himself.
Remember, you can always go to CNN.com and go to Pipeline if you want to watch this hearing unfiltered, streaming the entire hearing right now. We'll continue our coverage right here in THE SITUATION ROOM after a short break.
(COMMERCIAL BREAK) BLITZER: Welcome back. The confirmation hearings of Judge Samuel Alito continuing right now on Capitol Hill. Jeff Sessions, Republican of Alabama making his opening statement.
SEN. JEFF SESSIONS, (R) JUDICIARY CMTE.: ... and you've already taken it previously -- it is an oath not to decide whether a decision is good policy or not; that's for the legislative branch. It's not an oath to defend the wall the Supreme Court has enclosed sometimes around itself. It's not an oath to avoid admitting error in previous decisions.
But let me be more direct: The oath you take is not an oath to uphold precedent whether that precedent is super-duper or not.
If you love the Constitution -- which I hope you do; and intend to inquire about that -- you will enforce the Constitution as it is, good and bad. That's your responsibility in our democracy.
You know, we've already had this morning some matters that have been raised and I think are worthy of just responding to briefly, because allegations get made in these hearings. You may never get a chance, by the time this hearing's over, to rebut some of the things that have already been raised.
Senator Kennedy claimed that you've not offered an opinion or a dissent siding with a claim of racial discrimination. I would point him to U.S. v. Kithcart. There you made it clear the Constitution does not allow police officers to racially profile black drivers.
A police officer received a report that two black males in a black sports car had committed three robberies. Later, they pulled over a driver because he was a black man in a black sports car.
You wrote that this violated the Fourth Amendment. You stated that the mere fact that Kithcart was black and the perpetrators had been described as two black males was plainly insufficient.
And they also may want to look at your majority opinion in Brinson v. Vaughn, where you ruled that the Constitution does not allow prosecutors to exclude African-Americans from jurors.
And you granted the petition -- habeas petition -- in that case, reversing the conviction. You stated the Constitution guarantees, quote, "that a state does not use peremptory challenges of jurors, to remove any black jurors because of his race. Thus, a prosecutor's decision to refrain from discriminating against some African-American voters does not cure discrimination against others," closed quote.
And as for dissents, you were the lone dissenter, calling for an expansive interpretation of civil rights laws. Your dissent complained in an employer case that the majority had substituted its own opinion for the law, and you dissented and later the Supreme Court vindicated you 9-0.
So I would also note you were questioned about judicial independence. I think some of our people have mentioned that. But an academic study of federal appeals court opinions rated you the fourth-most independent judge in the federal judiciary. That's out of about 900. And they took that based on issues such as whether or not you were most likely to disagree with judges or agree with judges of a different political party.
So, Mr. Chairman, I thank you for your leadership.
I look forward to a vigorous hearing. I'm confident this nominee has the skills and graces to make an outstanding Supreme Court justice.
SPECTER: Thank you, Senator Sessions.
We're going to turn to one more senator, Senator Feingold, for an opening statement.
SPECTER: And then we're going to take a 15-minute break. We will have concluded the opening statements of 12 of our 18 Judiciary Committee members. That will leave us four more.
And then Senator Lautenberg and Governor Whitman to make the formal presentation of Judge Alito. And then Judge Alito's opening statement. So, at this time, we will adjourn and we will reconvene at 2:10.
Pardon me. We're going to proceed with you, Senator Feingold.
SEN. RUSSELL FEINGOLD (D), WISCONSIN: Thank you, Mr. Chairman, I think.
SPECTER: This is called the potted plant routine, Russ.
FEINGOLD: Thank you, Mr. Chairman.
SPECTER: I was so anxious for the recess, I jumped the gun a little.
FEINGOLD: Mr. Chairman, I too want to welcome our nominee and thank him in advance for the long hours that he'll put in this week.
Judge, I do greatly admire your legal qualifications and, of course, your record of public service and I wish you well here. And, as with the hearing on the nomination of Chief Justice Roberts, I approach this proceeding with an open mind.
Judge Alito, I know that, as a longtime student of the law in the Supreme Court, you appreciate the importance of the process that we begin today. A position on the Supreme Court is one of the highest honors and greatest responsibilities in our country. The Constitution requires the Senate to offer its advice and decide whether to grant its consent to your nomination.
And the Senate has duly delegated to the Judiciary Committee the task of examining your record and hearing your testimony in responses to questions about your views.
So it is our job in these hearings to try to get a sense for ourselves, for our colleagues who are not on the committee and for the American people of whether you should be given the enormous responsibility of protecting our citizens' constitutional freedoms on the Supreme Court.
So you will obviously face tough questions here, Judge. No one is entitled to a seat on the Supreme Court simply because he has been nominated by the president.
I think the burden is actually on the nominee to demonstrate that he should be confirmed.
We begin these hearings today in an important time. Less than a month ago, we learned that this administration has for years been spying on American citizens without a court order and without following the laws passed by Congress.
Americans are understandably asking each other whether our government believes it is subject to the rule of law.
Now, more than ever, we need a strong and independent judicial branch. We need judges who will stand up and tell the executive branch it is wrong when it ignores or distorts the laws passed by Congress. We need judges who see themselves as custodians of the rights and freedoms that the Constitution guarantees, even -- even -- when the president of the United States is telling the country that he should be able to decide unilaterally -- unilaterally -- how far these freedoms go.
To win my support, Judge Alito will have to show that he is up to the challenge. His instincts sometimes seem to be to defer to the executive branch, to minimize the ability of the courts to question the executive in national security cases, to grant prosecutors whatever powers they seek and to deny relief to those accused of crimes who assert that their constitutional rights were violated.
So it will be up to Judge Alito to satisfy the Senate that he can be fair and objective in these kinds of cases. We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect.
And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach.
In 1990, when the judge appeared before this committee in connection with his nomination to the court of appeals, Judge Alito promised to recuse himself from cases involving a mutual fund company with which he had substantial investments, Vanguard. He kept those investments throughout his service the court of appeals and still has them today.
But, in 2002, he sat on a panel in a case involving Vanguard. Since his nomination to the Supreme Court, we have now heard different explanations from the nominee and his supporters about why he failed to do recuse himself.
Needless the say, the shifting explanations and justifications are somewhat troubling. I hope that we will get the full and final story in these hearings.
Before we grant lifetime tenure to federal judges, and particularly, justices of the Supreme Court, we must make sure that they have the highest ethical standards.
The stakes for this nomination could hardly be higher. Justice O'Connor, as many have said, was the swing vote in many important decisions in the past decade. Her successor could well be the deciding vote in a number of cases that have already been argued this term that may have to be re-argued after a new justice is confirmed. The outcome of these cases could shape our society for generations to come.
Now, we don't have the right to know how a nominee would rule on those cases. Indeed, we should all hope that the nominee doesn't know either.
But we do have a right to know what and how a nominee thinks about the important legal issues that have come to the court in recent years. Commenting on past Supreme Court decisions, in my view, would no more disqualify a nominee from hearing a future case on a similar topic than would a current justice participating in those past decisions.
Mr. Chairman, it simply cannot be that the only person in America who can't express an opinion on a case where Justice O'Connor cast the deciding vote is the person who has been nominated to replace her on the court.
So I look forward to questioning you, Judge Alito, about executive power, the death penalty, employment discrimination, criminal procedure and other important topics.
And I look forward to your candid answers.
I'll have to say that I was rather pleased that the judge was actually less guarded in our private meeting than were the other two Supreme Court nominees who I have had the privilege to meet. I hope he's even more forthcoming in this hearing.
Given his long judicial record and the memos we have seen that express his personal views on legal issues, I expect complete answers and I think my colleagues do, too. If a nominee expresses a personal view on a legal issue in a memo written over a decade ago, I think we and the American people have the right to know if he still holds that view today.
Mr. Chairman, if confirmed to the Supreme Court, Judge Alito is likely to have a profound impact on the lives of Americans for decades to come. That is a fact.
It is clear, Mr. Chairman, from how you have planned these hearings that you recognize that.
Thank you for your efforts to ensure a full and fair evaluation of this nominee, and I not only look forward to the questioning but I want to note that I have caused the recess to occur three minutes and 40 seconds earlier than it normally would have. Thank you, Mr. Chairman.
SPECTER: Thank you, Judge (sic) Feingold, for your brevity.
We will now take a 15-minute recess until 2:15.
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