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CNN LIVE EVENT/SPECIAL
The Alito Hearings
Aired January 10, 2006 - 09:18 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
WOLF BLITZER, CNN ANCHOR: And to our viewers, you're now 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 just before 9:30 here in Washington, and the grilling of Judge Alito is about to begin. How tough will Democrats be on the president's Supreme Court nominee, and how much will Alito reveal?
At stake this hour, the future of the abortion debate. Look for questions about Roe versus Wade and Alito's personal views to take center stage and spark some fireworks.
Plus, the president's secret domestic spying program. Does Samuel Alito think the National Security Agency and Mr. Bush did anything illegal? Presidential power and election year politics on the line in the hearing room on Capitol Hill.
I'm Wolf Blitzer, and you're in THE SITUATION ROOM.
It's show time for the Senate Judiciary Committee and the president's choice to replace the key swing vote on the court, Justice Sandra Day O'Connor. This is day two of Judge Samuel Alito's confirmation hearings, but this is the first time lawmakers will get to press Alito on some of the most combustible issues facing both Congress and the high court.
Our national correspondent, Bob Franken, is watching all the action. He's in the hearing room. He's joining us now with a little bit of preview.
Have all the senators gathered already, Bob?
BOB FRANKEN, CNN NATL. CORRESPONDENT: Well, they are getting there. And the thing to watch for today is the style as much as the substance.
I mean, the senators might be playing a game, the Democrats, let's see if we can make Sam Alito angry, or let's see if we can even get him to show any emotion, because Alito is not exactly known as a vibrant raconteur, not somebody who has a style other than maybe the Michael Dukakis style of speaking. But he is somebody who through his analytical writings has had some strong opinions about issues that are just fundamental to the political discourse in this country and the legal discourse, issues like presidential power. That, of course, very controversial right now because of the disclosures about the administration's handling of matters like surveillance, and, of course, that primal issue, abortion, and he has had some strong objections to that in earlier writings. Now Alito takes the point that was when he was just a citizen, not a judge, and that a judge becomes an arbiter, dare we use the word umpire. He becomes somebody that does not take his agenda, to use his words, into the judicial arena.
Of course those who support Samuel Alito are hoping that he will do just that, and that in process, he will move the court to the right, as he replaces Sandra Day O'Connor, who has been considered a centrist over time, the swing vote. But in any case all of this questioning, this pushing and shoving, is going to be happening.
The senator is -- the chairman is gaveling this event, let's listen to Senator Arlen Specter's opening statement.
SEN. ARLEN SPECTER (R), JUDICIARY COMMITTEE CHAIR: Before beginning the first round of questioning, just a little review as to our procedure. As announced, there will be a 30-minute allocation for each senator, but we intend to work rather late this afternoon, perhaps into the early evening. I don't know that it's possible to complete the first round of questioning today. That would be a good objective. We'll see how it goes.
Judge Alito, you are free to let us know whenever you want a break. We will take a couple of breaks at the midpoint of the morning and the afternoon. But there are 18 of us and only one of you, so when you would like a break, your schedule takes precedence over ours.
Before beginning the opening round, let me yield to my colleague, Senator Leahy, to see if he has some initial comments.
SEN. PATRICK LEAHY (D), VERMONT: I thank you, Mr. Chairman. I also appreciate the fact we have kept to the clock. I think it has been helpful, and I would hope that Judge Alito would bear with us on that. We will have a lot of questions. I think to take the time to get them all -- you've always been accommodating to that. And I think that it requires cooperation on both sides of the -- both sides of the dais.
We do have the advantage, Mr. Chairman, that we didn't have with Judge Roberts hearings that we're not in session. We're not going to be interrupted by votes. And we have the time to do it. I would hope that we don't go into a marathon for both his sake and us older guys' sake.
But I do appreciate you. You've run this with fairness and equal- handedness. I appreciate that.
SPECTER: Well, since there are no older guys involved or gals, we can consider the marathon. But we'll keep it within bounds.
OK. You can start the clock. I will maintain the clock meticulously as we have maintained timing in our Judiciary Committee practice.
Judge Alito, you'll be faced with many, many questions on many topics. I'm going to start today with a woman's right to choose and move to executive power and, hopefully, within the 30 minutes pick up congressional power.
Starting with the woman's right to choose, Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?
JUDGE SAMUEL A. ALITO, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that.
ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment.
SPECTER: Would you agree, also with Eisenstat, which carried forward Griswold to single people?
ALITO: I do agree also with the result in Eisenstat.
SPECTER: Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman's right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman's right to choose.
In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." Pretty earthy language, but that's the Supreme Court's language.
And the court went on to say, quote, "The ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives."
Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition. SPECTER: How would you weigh that consideration on the woman's right to choose?
ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.
And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.
It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.
SPECTER: How do you come to grips with the specifics where the court in the joint opinion spoke of reliance on the availability of abortion in the event contraception should fail -- on that specific concept of reliance?
ALITO: Well, reliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests.
And people can rely on judicial decisions in a variety of ways. There can be concrete economic reliance. Government institutions can be built up in reliance on prior decisions. Practices of agencies and government officials can be molded based on reliance. People can rely on decisions in a variety of ways.
ALITO: In my view...
SPECTER: Let me move on to another important quotation out of Casey.
Quote: "A terrible price would be paid for overruling Casey -- or overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. And to overrule Roe under fire would subvert the court's legitimacy."
Do you see the legitimacy of the court being involved in the precedent of Casey?
ALITO: Well, I think that the court and all the courts -- the Supreme Court, my court, all of the federal courts -- should be insulated from public opinion. They should do what the law requires in all instances.
That's why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected. And that's the reason: so that they don't do anything under fire. They do what the law requires.
SPECTER: But do you think there is as fundamental a concern as legitimacy of the court would be involved if Roe were to be overturned?
ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time.
SPECTER: Let me move to just a final quotation that I intend to raise from Casey. And it is, quote, "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue but the precedential force that must be accorded to its holding."
That separates out the original soundness of Roe which has been criticized and then lays emphasis on the precedential value.
How would you weigh that consideration were this issue to come before you, if confirmed?
ALITO: Well, I agree that, in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.
Let me turn to an analogous situation. And that is Chief Justice Rehnquist's change of heart on the Miranda ruling.
In 1974, in the case of Michigan v. Tucker, he was then Justice Rehnquist, who wrote an opinion severely limiting Miranda. He, in effect, said he didn't like it.
Then, in the year 2000, in the case of the United States v. Dickerson, Chief Justice Rehnquist wrote an opinion upholding Miranda. And he did that because, quote, "Miranda was embedded in the routine police practices to a point where the warnings have become a part of our national culture," close quote.
SPECTER: Now, there has been an analogy made from what Chief Justice Rehnquist said on the Miranda issue to the Roe issue.
How would you evaluate the consideration of Roe's being embedded in the culture of our society?
ALITO: I think that Chief Justice Rehnquist there was getting at a very important point.
SPECTER: Do you think he was right?
ALITO: I think he getting at -- he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there.
I think what he's talking about is that a great many people -- and, in that instance, police departments around the country over a long period of time -- had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions...
SPECTER: Judge Alito, let me move to the dissenting opinion by Justice Harlan in Poe v. Ullman where he discusses the constitutional concept of liberty and says, quote, "The traditions from which liberty developed, that tradition is a living thing."
SPECTER: Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing?
ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up.
SPECTER: Would you agree with Cardozo in Palco that it represents the values of a changing society?
ALITO: The liberty component of the Fifth Amendment and the 14th Amendment, which I was talking about earlier, embody the deeply-rooted traditions of a country. And it's up to each -- those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations.
The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.
SPECTER: Judge Alito, the commentators have characterized Casey as a super-precedent.
Luttig, in the case of Richmond Medical Center, called the Casey decision "super stare decisis."
And, in quoting from Casey, Judge Luttig pointed out the essential holding of Roe v. Wade should be retained and, once again, reaffirmed.
And then, in support of Judge Luttig's conclusion that Casey was super stare decisis, he refers to Stenberg v. Carhart and quotes the Supreme Court, saying, "We shall not revisit these legal principles."
Now, that's a pretty strong statement for the court to make that we shall not revisit the principles upon which Roe was founded.
And the concept of super stare decisis or super-precedent arises, as the commentators have characterized it, by a number of different justices appointed by a number of different judges over a considerable period of time.
Do you agree that Casey is a super-precedent or a super stare decisis, as Judge Luttig said?
ALITO: Well, I personally would not get into categorizing precedents as super-precedents or super-duper precedents or any...
SPECTER: Did you say super-duper?
SPECTER: Good. I like that.
ALITO: Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket.
ALITO: I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent. And when the Supreme Court says that we are not going...
SPECTER: How about being reaffirmed 38 times?
ALITO: Well, I think that when a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis.
And when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.
Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not. But it is a judgment that has to be based -- taking into account all the factors that are relevant and that are set out in the Supreme Court's cases.
SPECTER: Judge Alito, during the confirmation hearing of Chief Justice Roberts, I displayed a chart. I don't ordinarily like charts but this one I think has a lot of weight because it lists all 38 cases which have been decided since Roe where the Supreme Court of the United States had the opportunity to -- Senator Hatch is in the picture now.
It's a good photo op for Senator Hatch. Senator Leahy's complaining...
LEAHY: We can just balance it on Orrin's head.
SPECTER: Well, I think the point of it is that there have been so many cases, so many cases: 15 after your statement in 1985 that I'm about to come to, and eight after Casey v. Planned Parenthood, which is why it has a special significance.
SPECTER: And I'm not going to press the point about super- precedent. I'm glad I didn't have to mention super-duper; that you did.
Thank you very much.
Let me come now to the statement you made in 1985 that the Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito?
ALITO: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration.
Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing, and that's the issue of stare decisis.
And if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made.
SPECTER: So you would approach it with an open mind notwithstanding your 1985 statement?
ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role.
And as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.
SPECTER: Well, Judge Alito, coming to the role you had in the solicitor general's office where you wrote the memorandum in the Thornburg case urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge.
But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job, a promotion, within the federal government. So there's a little difference between the 1985 statement and your advocacy role in the Thornburg memorandum, isn't there? ALITO: Well, there is, Senator. And what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice.
I'm not saying that I made the statement simply because I was advocating the administration's position. But that was the position that I held at the time. And that was the position of the administration.
SPECTER: And would you state your views, the difference, as you see it, between what you did as an advocate in the Solicitor General's Office to what your responsibilities are on the 3rd Circuit or what they would be on court if confirmed in a judicial capacity?
ALITO: Well, an advocate has the goal of achieving the result that the client wants within the bounds of professional responsibility.
ALITO: That's what an advocate is supposed to do. And that's what I attempted to do during my years as an advocate for the federal government.
Now, a judge doesn't have a client, as I said yesterday. And a judge doesn't have an agenda. And a judge has to follow the law. An important part of the law in this area, as we look at it in 2006, is the law of stare decisis.
SPECTER: Judge Alito, you have written some 361 opinions, and I'd like to have the time to discuss quite a few of them with you, but I'm only going to pick up one in the first round, and that is an opinion you wrote in the Elizabeth Blackwell Health Center for Women v. Knoll.
And that was the case where there was a challenge between a Pennsylvania statute which required as a prerequisite to a woman getting Medicaid that she would have had to have reported a rape or an incest to the police; and secondly, a requirement that there be a second opinion from a doctor that she needed an abortion to save her life. And that statutory requirement, those two provisions, conflicted with a regulation by the Department of Health and Human Services.
And you were on the 3rd Circuit, which held that the Pennsylvania statute should be stricken in deference to the rule of the Health and Human Services Department. And Judge Nygard entered a very forceful dissent, saying that this was an interpretive rule and it was inappropriate to have that kind of an interpretive rule by a department countervail a statute.
SPECTER: What was your thinking in that case? Had you been predisposed to take a tough line on a woman's right to choose or on Medicaid support for someone who had been raped, you would have upheld the statute? What was your thinking on that case? ALITO: What you said is correct, Senator. I cast the deciding vote there to strike down the Pennsylvania statute. And I did it because that's what I thought the law required. I thought the law required that we defer to the interpretation of the federal statute that had been made by the Department of Health and Human Services.
If I had had an agenda to strike down any -- I'm sorry to uphold any regulation of abortion that came up in any case that was presented to me, then I would have voted with Judge Nygard in that case, and that would have turned the decision the other way.
I've sat on three abortion cases on 3rd Circuit. In one of them, that was the Casey case, I voted to uphold regulations of abortion. And in the other two, the Elizabeth Blackwell case and Planned Parenthood v. Farmer, I voted to strike them down. And, in each instance, I did it because that's what I thought the law required.
SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson's concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday.
ALITO: I do.
I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn't answer every question that comes up in this area, but it provides a very useful way of looking at them.
SPECTER: Do you agree with Justice O'Connor's statement quoted frequently yesterday from Hamdi that, quote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," when she was citing the Youngstown case? Do you agree with that?
ALITO: Absolutely. That's a very important principle. Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.
SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime."
Do you stand by that statement?
ALITO: I certainly do, Senator.
The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.
SPECTER: Steering clear, Judge Alito, of asking you how you would decide a specific case, I think it is very important to find out your jurisprudential approach in interpreting whether the September 14th, 2001 congressional resolution authorizing the use of force constituted congressional authorization for the National Security Agency to engage in electronic surveillance where one party to the conversation was in the United States.
Let me take just a moment to lay out the factual and legal considerations.
The Foreign Intelligence Surveillance Act of 1978 provides, quote, "It shall be the exclusive means by which electronic surveillance shall be conducted in the interpretation of domestic, wire, oral and electronic communications may be conducted."
The government contends that the Foreign Intelligence Surveillance Act clause, quote, "Except as authorized by statute, opens the door to interpreting that resolution to authorize the surveillance."
Let me give you a series of questions. I don't like to put more than one on the table at a time, but I think they're necessary in this situation to give the structure as to where I'm going.
First, in interpreting whether Congress intended to amend FISA by that resolution, would it be relevant that Attorney General Gonzales said, we were advised that, quote, "That was not something we could likely get," close quote?
Second, if Congress had intended to amend FISA by the resolution, wouldn't Congress have specifically said so, as Congress did in passing the Patriot Act, giving the executive greater flexibility in using roving wiretaps?
Third, in interpreting statutory construction on whether Congress intended to amend FISA by the resolution, what would the relevance be of rules of statutory construction that repeal or change by implication that changes by, or makes a repeal, by implication or disfavor and specific statutory language trumps more general pronouncements?
How would you weigh and evaluate the president's war powers under Article II to engage in electronic surveillance with the warrant required by congressional authority under Article I in legislating under the Foreign Intelligence Surveillance Act?
And let me start with the with the broader principles. In approaching an issue as to whether the president would have Article II powers, inherent constitutional authority to conduct electronic surveillance without a wiretap (sic) when you have the Foreign Intelligence Surveillance Act on the books making that the exclusive means, what factors would you weigh in that format?
ALITO: Well, probably the first consideration would be to evaluate the statutory question. And you outlined some of the factors and the issues that would arise in interpreting the statute, what is meant by the provision of FISA that you quoted regarding FISA, the Foreign Intelligence Surveillance Act, being the exclusive means for conducting surveillance.
And then, depending on how one worked through that statutory question, then I think one might look to Justice Jackson's framework. And he said that he divided cases in this area into three categories: where the president acts with explicit or implicit congressional approval; where the president acts and Congress has not expressed its view on the matter one way or the other; and the final category, where the president exercises executive power and Congress -- and that is in the face of an explicit or implicit congressional opposition to it.
And depending on how one works through the statutory issue, then the case might fall into one of those three areas. But these questions that you pose are obviously very difficult and important and complicated questions that are quite likely to arise in litigation perhaps before my own court or before the Supreme Court.
SPECTER: Before pursuing that further -- and we'll have a second round -- I want to broach one other issue with you; my time is almost up.
And that is, in the memorandum you wrote back on February 5th, 1986, about the president's power to put a signing statement on to influence interpretation of the legislation, you wrote this: "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress."
Is that really true when you say the president's views are as important as Congress?
The president can express his views by a veto, and then gives Congress the option of overriding a veto, which Congress does not have if the president makes a signing declaration and seeks to avoid the terms of the statute.
And we have the authority from the Supreme Court that the president cannot impound funds, can't pick and choose on an appropriation. We have a line-item veto case, where the president cannot strike a provision even when authorized by Congress.
Well, I have got 10 seconds left. I guess when my red light goes on, it doesn't affect you. You can respond.
Care to comment?
ALITO: I do, Senator.
I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised.
And in that memo, I said, "This is an unexplored area, and here are the theoretical questions that" -- and, of course, they are of more than theoretical importance -- "that arise in this area."
That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes.
And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: "There are difficult theoretical interpretive questions here, and here they are." And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions.
SPECTER: My red light went on.
LEAHY: Hello, Judge, and good morning.
ALITO: Good morning, Senator.
LEAHY: So glad you survived yesterday listening to us. Now we have a chance to listen to you.
I'll have further questions on the memo that Senator Specter spoke of, but it gets beyond theoretical.
I mean, the last few weeks, we've seen it well played out in the press, where the president and Senator John McCain negotiated rather publicly in a memo, which passed overwhelmingly in the House and the Senate, outlawing the use of torture by United States officers, yet the president, in his signing statement, implies that it will not apply to him or to those under his command as commander in chief.
Doesn't that get well beyond the theoretical issue there?
ALITO: It is. And I think I said, in answering the chairman that there are theoretical issues, but they have considerable practical importance.
But the theoretical issues really have to be explored and resolved. I don't believe the Supreme Court has done that up to this point.
I have not had occasion in my 15-plus years on the 3rd Circuit to come to grips with the question of what is the significance of a presidential signing statement in interpreting a statute.
LEAHY: Well, let me follow on sort of a related thing. The Supreme Court -- I feel one of the most important functions of the court is to stop our government from intruding into Americans' privacy or our freedom or our personal decisions.
In my state of Vermont, we value our privacy very, very much. I think most Americans do, automatically. And many times they have to go to the courts to make sure that a government doesn't -- whatever the government is, whatever administration it might be, that they don't overreach in going into that privacy.
Now, three years ago, the Office of Legal Counsel at the Justice Department -- and you're familiar with that; you worked there years ago -- they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture.
They tried to redefine torture, and they asserted, I quote, "that the president enjoys complete authority over the conduct of war," close quote.
And they went on further to say that if Congress passed criminal law prohibiting torture, quote, "in a manner that interferes with the president's direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional." They seem to say that the president could immunize people from any prosecution if they violated our laws on torture.
And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public.
Once it became public -- the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it's beyond the pale -- the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer -- no longer -- represented Bush administration policy.
What is your view now? And I ask this because the memo has been withdrawn. It's not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct?
ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court.
Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States.
Now, there can be -- there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.
LEAHY: Well, let's go into one of those specifics.
Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress?
ALITO: Well, if we were in -- if a question came up of that nature, then I think you'd be in -- where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you'd be in what Justice Jackson called the twilight zone, where the president's power is at its lowest point.
And I think you'd have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up. And very often there they don't make their way to the judiciary or they're not resolved by the judiciary; they're resolved by the other branches of the government.
LEAHY: But, Judge, I'm a little bit troubled by this because you said yesterday -- and I completely agreed with what you said -- that no one's above the law; no one's beneath the law. You're not above the law. I'm not. The president's not.
But are you saying that there are chances where the president not only could be above the law passed by Congress but could immunize others, thus putting them above the law?
I mean, listen to what I am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo -- which has now been withdrawn -- was saying, "But that won't apply to me or people that I authorize."
Doesn't that place not only the president but anybody he wants above the law?
ALITO: Senator, as I said, the president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president -- and it's set out expressly in the Constitution -- is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States.
But what I am saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone, and they have to be decided when they come up based on the specifics of the situation.
LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?
ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics.
LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?
ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.
LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?
ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country.
LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?
ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power.
But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue.
LEAHY: Let's go to some specifics. Senator Specter mentioned FISA. And you're well aware of FISA, the Foreign Intelligence Surveillance Act. Certainly, you had to be involved with it, appropriately so, when you were a U.S. attorney.
This came in after the abuses of the '60s and '70s. We had had the President Nixon's enemies list, with breaking into doctors' offices and wiretapping of innocent Americans and so on. And after that, the Congress, in a strong bipartisan effort, passed the FISA legislation. We had that court that they can handle applications in secret for wiretaps or surveillance if necessary for national security.
LEAHY: Now, we just learned that the president has chosen to ignore the FISA law and the FISA court. He's issued secret orders, and according to the press and the president's own press conference, time after time after time, secret orders for domestically spying on American citizens without obtaining a warrant.
Do you believe the president can circumvent the FISA law and bypass the FISA court to conduct warrant-less spying on Americans?
ALITO: The president has to comply with the Fourth Amendment and the president has to comply with the statutes that are passed.
This is an issue I was speaking about with Chairman Specter that I think is very likely to result in litigation in the federal courts. It could be in my court. It certainly could get to the Supreme Court. And there may be statutory issues involved: the meaning of the provision of FISA that you mentioned; the meaning, certainly, of the authorization for the use of military force. And those would have to be resolved.
And in order to resolve them, I would have to know the arguments that are made by the contending parties. On what basis is it claimed that there's a violation? On what basis would the president claim that what occurred fell within the authorization for the use of military force?
And then, if you got beyond that, there could be constitutional questions about the Fourth Amendment, whether it was a violation of the Fourth Amendment, whether it was a valid exercise of executive power.
LEAHY: But wouldn't the burden be on the government to prove that it wasn't a violation of Fourth Amendment if you're spying on Americans without a warrant? Especially when you have courts set up -- in this case, the FISA Court, which sets up a very easy procedure to get the warrant -- wouldn't the burden be on the government in that case?
ALITO: Well, Senator, I think in the first instance, the government would have to come forward with its theory as to why the actions that were taken were lawful. I think that's correct.
LEAHY: Let me ask you another.
How does anybody even -- you talk about this may come before the 3rd Circuit or come before the Supreme Court, and I'll accept that. But how does somebody even get there? If you're having illegal secret spying on a person, how are they even going to know? Where are they going to get the standing to sue?
ALITO: Certainly if someone is the subject of a search, and they claim that the search violates a statute or it violates the Constitution, then they would have standing to sue. And they could sue in any court -- in the federal court that had jurisdiction.
LEAHY: Well, and I'm not asking these as hypothetical questions, Judge. People are getting very concerned about this.
We just found out -- again, not because the government told us, but because the press found out about it. And thank God that we do have a free press, because so much of the stuff that is supposed to be reported to Congress never is, and we, of course, hear about it when it's in the press.
But we found out that the Department of Defense was going around -- this makes me think of COINTELPRO during the Vietnam War.
LEAHY: They're going around the war, photographing and spying on people who are protesting the war in Iraq. They went, according to the press, and spied on Quakers in Vermont.
Now, I don't know why they spent all that money to do that. If they wanted to find a Vermonter protesting the war, turn on C-SPAN. I do it on the Senate floor all the time.
But I know some of these Quakers. I mean, in the Quaker tradition, they have been protesting war throughout this country's history.
Now, I worry about this culture we're getting. And I just want to make sure the courts -- the Congress is not going to stand up and say no. And the administration certainly is authorizing this. I want to make sure that the courts -- that the courts are going to say, "We'll respect your privacy. We'll respect your Fourth Amendment rights."
You know, if you ask somebody who's been spied on -- more on the spying -- would you agree -- and I think you did, but I want to make sure I am right on this -- do you agree they should have a day in court?
ALITO: Certainly. If someone has been the subject of illegal law enforcement activities, they should have a day in court.
And that's what the courts are there for, to protect the rights of individuals against the government or anyone else who violates their rights.
And they have to be absolutely independent and treat everybody equally.
LEAHY: And those Fourth Amendment rights are pretty significant, are they not?
ALITO: They are very significant.
LEAHY: I think they set us apart from most other countries in the world, to our betterment. And you were a prosecutor. I was a prosecutor. I think we could agree even in our past professions, it protects us.
ALITO: I agree, Senator. I tried to follow what the Fourth Amendment required when I was a prosecutor, and I regarded it as very important.
LEAHY: Well, let me go back to the last time we saw government excesses like this before FISA. When you worked in the Reagan administration, you argued to the Supreme Court that President Nixon's attorney general should have absolute immunity for domestic spying without a warrant given a case of willful misconduct.
In your memo, you said, "I do not question that the attorney general should have the immunity but, for tactical reasons, I would not raise the issue here."
Do you believe today that the attorney general would be absolutely immune from civil liability for authorizing warrantless wiretaps?
ALITO: No, he would not. That was settled in that case. The Supreme Court held that the attorney general does not have...
LEAHY: But you did believe that then?
ALITO: Actually, I recommended that that argument not be made. It was made, and I think it's important to understand the context of that. First of all...
LEAHY: You did say in the memo, "I do not question that the attorney general should have this immunity."
ALITO: That's correct. And the background of that, if I could just explain...
ALITO: ... very briefly, is that there we were not just representing the government. We were representing former Attorney General Mitchell in his individual capacity. He was being sued for damages, and we were in a sense acting as his private attorney.
And this was an argument that he wanted to make. This was an argument that had been made several times previously by the Department of Justice, during the Carter administration, and then just a couple of years earlier in Harlow v. Fitzgerald in the Reagan administration.
And I said I didn't think it was a good idea to make the argument in this case, but I didn't dispute that it was an argument that was there.
LEAHY: You don't have any question that the judiciary has a role to play here and there can be judicial checks on such things?
ALITO: No, absolutely, it is the job of the judiciary to enforce the Constitution.
LEAHY: Let's go on to a couple search cases. And I think we've indicated to you we'd bring these up. Doe v. Groody, Baker v. Monroe Township, those are unauthorized searches.
In Doe, the police officer had a warrant for a man at a certain address. When they arrived, they found his wife and 10-year-old daughter. They were not in the warrant. They posed no threat. But the officers detained them and strip-searched them, wife and the 10- year-old -- the 10-year-old girl.
Baker, a mother and three teenage children were detained and searched when they arrived at the home of the mother's adult son. They didn't live there. They weren't in the home. They were outside. hthey didn't pose a threat to the police, but they were ordered at gun point to lie on the ground, they were handcuffed, they were taken into the house and they were searched.
Doe, the strip search case of a 10-year-old girl, the officers didn't ask for permission to search anybody beyond the man they were looking for. In fact, the magistrate didn't give search warrant for anybody else. But you went beyond that. You said that they were justified in strip-searching this 10-year-old and the mother. You went beyond the four corners of the search warrant the magistrate gave.
And one of your members of the 3rd Circuit, Judge Chertoff, who is now the head of Homeland Security and a former prosecutor, criticized your reasoning. He said that it would allow it to come dangerously close to displacing the critical role of the independent magistrate.
Do you continue to hold the position you took in your opinion, or do you now agree with the majority? They're right and you're wrong?
ALITO: Well, Senator, I haven't had occasion to think that what I said in that case was correct. But let me just explain what was going on there.
ALITO: The issue there was whether -- the first issue was whether the warrant authorized the search of people who were on the premises, and that was the disagreement between me and the majority. And it was a rather technical issue about whether the affidavit that was submitted by the police officers was properly incorporated into the warrant for the purposes of saying who could be searched.
ALITO: And I thought that it was. And I thought that it was quite clear that the magistrate had authorized a search for people who were on the premises. That was the point of disagreement.
I was not pleased that a young girl was searched in that case, and I said so in my opinion. That was an undesirable thing. But the issue wasn't whether there should be some sort of rule of Fourth Amendment law that a minor can never be searched. And I think if we were to...
LEAHY: But we both agree on that, Judge.
The only reason I bring up these two cases, it seems in both of them you went beyond the four corners of the search warrant, and you settled all issues in a light most favorable -- the majority in the opinion didn't, but you did -- in a light most favorable to law enforcement. In fact, in Baker, the majority said that.
And I worry about this, because I always worry that the courts must be there to protect individuals against an overreaching government. In this case, your position in the minority was that you protected what the majority felt was an overreaching government.
Am I putting too strong analysis on that?
ALITO: I do think you are, Senator.
ALITO: I think you need to take into account what was going on here.
The police officers prepared an affidavit. And they said, "We have probable cause to believe that this drug dealer hides drugs on people who are on the premises. And therefore, when we search, we want authorization not just to search him but to search everybody who's found on the premises, because we have reason to believe he hides drugs there."
ALITO: And the magistrate who issued the warrant said that the affidavit was incorporated into the warrant for the purpose of establishing probable cause.
And we're supposed to read warrants in a common-sense fashion because they're prepared by police officers for the most part, not by lawyers, and they're often prepared under a lot of time pressure. And it seemed to me that reading this in a common-sense fashion, what the magistrate intended to do was to say, "Yes, you have authorization to do what you asked us to do."
But even beyond that, the issue there was whether these police officers could be sued for damages. And they couldn't be sued for damages if a reasonable officer could have believed that that's what the magistrate intended to authorize. And I thought that surely a reasonable officer could view it that way.
Now, Judge Chertoff looked at it differently. And there are cases where reasonable people disagree. And that's all that was going on.
LEAHY: I know. You look at reasonable things -- I spent eight years in law enforcement. I don't know where any reasonable officer under those circumstances would feel they could strip-search a 10- year-old girl.
Let me go into another area. It's one that touched me in your statement yesterday.
You spoke eloquently of your father's experience, when he came to this country. The reason it touched me -- I was thinking, my maternal grandparents emigrated to America to Vermont speaking only Italian, coming from Italy to a new country.
LEAHY: And I know some of the problems they faced, these people speaking their strange language; my mother, as a child, learning English when she went to school -- "Why don't they speak like us? Why are they different than us?" -- and some of the obstacles that they faced.
And my father's case, my paternal grandfather, whom I never knew, named Patrick Leahy, died as a stonecutter in Very (ph), Vermont. My father was a young teen and had to go to work to support his mother, my grandmother, whom I also never knew. And the signs then were "No Irish need apply," or, "No Catholics need apply."
And I think you and I would be in total agreement that we're now in a different world, at least most of our country. And that we're better -- we're better people because we've done away with that.
We both understand, I think, in our core, I would hope, what happens if you have either ethnic prejudice or religious prejudice. In my case, my father, a self-taught historian, but he never was able to finish high school. I was the first Leahy to get a college degree; my sister the next one.
So with that in mind, there was something in your background that I was very troubled with. That's the Concerned Alumni of Princeton University, CAP.
This is a group that received attention because it was put together but it resisted the admission of women and minorities to Princeton. They were hostile to what they felt where people that did not fit Princeton's traditional mold: women and minorities.
Now, two prominent Princetonians -- one, Bill Frist, who is now the majority leader of the United States Senate -- in a committee roundly criticized CAP; Bill Bradley, who had joined it and then found out what it was, left it and roundly criticized it.
And yet you proudly, in 1985, well after -- well after the criticisms of this -- in your job application proudly put that you were a member of it, a member of Concerned Alumni of Princeton University, a conservative alumni group.
Why in heaven's name, Judge, with your background and what your father faced, why in heaven's name were you proud of being part of CAP?
ALITO: Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization. But since I put it down on that statement, then I certainly must have been a member at that time.
But if I had been actively involved in the organization in any way, if I had attended meetings, or been actively involved in any way, I would certainly remember that, and I don't.
And I have tried to think of what might have caused me to sign up for membership. And if I did, it must have been around that time.
And the issue that had rankled me about Princeton for some time was the issue of ROTC. I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn't think that it was right to oppose the military for that reason.
And the issue -- although the Army unit was eventually brought back, the Navy and the Air Force units did not come back, and the issue kept coming up. And there were people who were strongly opposed to having any unit on campus.
And the attitude seemed to be that the military was the bad institution, and that Princeton was too good for the military, and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses didn't merit getting credit, that the instructors shouldn't be viewed as part of the faculty.
And that was the issue that bothered me about that.
LEAHY: But, Judge, with all due respect, CAP was most noted for the fact that they were worried that too many women and too many minorities were going to Princeton.
In 1985, when everybody knew that's what they stood for, when a prominent Republican like Bill Frist and a prominent Democrat like Bill Bradley both had condemned it, you, in your job application, proudly stated this as one of your credentials.
Now, you strike me as a very cautious and careful person. And I say that with admiration, because a judge should be. But I can't believe that at 35, when you're applying for a job, that you're going to be anything less than careful in putting together such a job application. And, frankly, I don't know why that was a matter of pride for you at that time.
My time is up. We'll come back to this. I have other questions.
ALITO: Well, Senator, as you said, from what I now know about the group, it seemed to be dedicated to the idea of bringing back the Princeton that existed at a prior point in time. And as you said, somebody from my background would not have been comfortable in an institution like that, and that certainly was not any part of my thinking in whatever I did in relation to this group.
LEAHY: Or my background either, Judge -- or my background either.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Leahy.
SEN. ORRIN HATCH (R), UTAH: Welcome, Judge Alito. We appreciate you and the service that you have given. But much has been made about your membership in an organization called the Concerned Alumni of Princeton.
You mentioned this organization in your 1985 job application for a position in President Reagan's administration. And you've told us what you felt you know about your membership in that organization. So is it fair to say that you were not a founding member?
ALITO: I certainly was not a founding member.
HATCH: You were not a board member?
ALITO: I was not a board member.
HATCH: Or for that matter, you were not even an active member of the organization, to the best of your recollection?
ALITO: I don't believe I did anything that was active in relation to this organization.
HATCH: Well, some have suggested, as my friend from Massachusetts did yesterday, that by your membership in this organization, you were somehow against the rights of women and minorities attending colleges.
So let me just ask you directly, on the record, are you against women and minorities attending colleges?
ALITO: Absolutely not, Senator. No.
HATCH: You know, I felt that that would be your answer. I really did.
That's a good question, though. It's one that kind of overcomes the implications that you were.
ALITO: Senator, I had never attended a non-coeducational school until I went to Princeton. And after I was there a short time, I realized the benefits of attending a coeducational school.
HATCH: I'm glad that you mentioned in your opening statement yesterday that a decade earlier a person like yourself, and by this I assume you meant someone of Italian ancestry...
ALITO: I did, Senator. And someone not from any sort of exalted economic status.
HATCH: Modest background. Son of an immigrant father and a person who had gone to public schooling might not have been fully welcomed sometimes at Princeton at that time.
Now, people like me are not even sure what an eating club is, but it sure as heck does not sound like a cafeteria.
ALITO: No, it's something like a fraternity, except it's just a facility, it's a private facility where students eat. Traditionally, they were selective. They had a process like "bicker" and they chose people that they thought fit in with the group.
And I didn't choose to belong to an eating club. I belonged to a university facility called Stevenson Hall, which was named after Adlai Stevenson, and it was one of the most coeducational facilities on the campus.
ALITO: It was not selective. It was attractive to me because a lot of faculty members went there for lunch. There was a master who lived on the facility with his family. And it was an opportunity to have dinner and lunch to talk to faculty members. HATCH: Well, much has been written about the just and egalitarian changes that took place at Princeton and other elite institutions in the 1960's, making them more welcoming to persons without an elite background.
It has been alleged by some -- most prominently, I might add, by a Democratic witness who was withdrawn at the last minute because of some politically embarrassing comments that he made -- that your membership in this group demonstrates your desire to maintain some old boy's network to the detriment of women and minorities.
Could you comment on that particular suggestion?
ALITO: I certainly had no such desire. And I think that what I did when I was a student at Princeton and my activities since then illustrate that.
As I said, when I was at Princeton, I was a member of this university facility, and it was open to everybody, and it was one of the most coeducational facilities on the campus.
And since graduating, I have actually been involved in a way in the admissions process. I was on the school's committee for a number of years and interviewed applicants to Princeton. And I think that shows my attitude toward the general way in which the university has been run.
HATCH: Well, ROTC programs, sir, are an excellent opportunity for young men and women to attend college and serve their country through service in the armed forces.
Now, there are actually more military officers who were ROTC students than went to West Point, the Naval Academy or the Air Force Academy. Now, that includes the eminent Colin Powell.
HATCH: You were a member of the ROTC; is that true?
ALITO: I was, Senator.
HATCH: You were a proud member of the ROTC.
ALITO: I was.
HATCH: Did you enjoy your time in the ROTC and in the Army afterward?
ALITO: I was proud to be a member. And the unit was thrown off the campus after -- well, the decision was made shortly after I joined the ROTC, and so I attended the ROTC classes on the campus during my junior year. But during my senior year, the unit had been expelled from the campus, and I had to go to Trenton State College occasionally to finish up my ROTC work.
HATCH: I heard a report yesterday that the ROTC building on the Princeton campus was actually firebombed at about the same time that American servicemen of college age were fighting in Vietnam. Is that accurate?
ALITO: That's correct. It was very extensively damaged.
HATCH: Was anybody injured?
ALITO: I don't recall that anybody was injured, but certainly there's a serious risk of injury whenever an arson takes place.
HATCH: Now, Judge Alito, some senators and left-wing activist groups have focused on one case involving the Vanguard Company, claiming that your consideration of that case amounts to some kind of ethical lapse.
Now, I would observe that the universal opinion is that you have unquestioned integrity and a record that is above reproach. I know we will hear from the American Bar Association later this week, but I know their highest rating includes the highest marks for integrity.
In fact, I have a copy of their recommendations here.
HATCH: On the issue of integrity, it says, "The man of integrity is self-defining. A nominee's character and general reputation in the legal community are investigated, as are his or her industry and diligence.
"Judge Alito enjoys an excellent reputation for integrity and character, notwithstanding a widespread awareness of the Vanguard and Smith Barney recusal issues.
"During his personal interview with us, Judge Alito was asked about the recusal matter in detail, and he acknowledged at length that he takes the matter of recusal very seriously and that the cases had, quote, 'slipped through,' unquote, the court screening process."
I won't read the whole matter, but let me just go toward the end: "Judge Alito explained to the satisfaction of the standing committee the special circumstances that resulted in the screen not working or otherwise not being applied in these limited matters," that is, the screening of cases, "and he further accepted responsibility for the errors. We accept his explanation and do not believe these matters reflect adversely on him."
"To the contrary, consistent and virtually unanimous comments from those interviewed include, quote, 'He has the utmost integrity.' 'He is a straight shooter, very honest and calls them as he sees them.' 'His reputation is impeccable.' 'You can find no one with better integrity.' 'His integrity and character are the highest caliber.' 'He is completely forthright and honest.' 'His integrity is absolutely unquestionable.' 'He is a man of great integrity.'
"On the basis of our interviews with Judge Alito with well over 300 judges, lawyers and members of the legal community nationwide, all of whom know Judge Alito professionally, the standing committee concluded that Judge Alito is an individual of excellent integrity."
Now, the reason I want to go into this is to, kind of, get rid of this problem that I think's as phony as anything I've ever seen in my time around here. Like I say, this case has been written about or reported on for weeks in bits and pieces, so that getting a clear picture of the facts is, indeed, a challenge, let alone getting a clear picture of the ethical issues involved, as well.
And I know you've not had a chance to respond to any of it publicly, so I want to give you that chance now. Please take a few minutes and briefly describe the facts of the case, and then I have a few questions on the issues that are raised by the case.
ALITO: Thank you, Senator.
And I appreciate the opportunity to address this, because a lot's been said about it, and very little by me.
And I think that once the facts are set out, I think that everybody will realize that in this instance I not only complied with the ethical rules that are binding on federal judges -- and they're very strict -- but also that I did what I've tried to do throughout my career as a judge, and that is to go beyond the letter of the ethics rules and to avoid any situation where there might be an ethical question raised.
And is a case that came up in 2002, 12 years after I took the bench, and I acknowledged that if I had to do it over again, there are things that I would have done differently. And it's not because I violated any ethical standard, but it's because when this case first came before me, I did not focus on the issue of recusal and apply my own personal standard, which is to go beyond what the code of conduct for judges requires.
This was a pro se case, and we take our pro se cases very seriously.
HATCH: By pro se...
ALITO: It's a case where the plaintiff was not represented by a lawyer. She was representing...
HATCH: She was paying for her own counsel and represented herself.
ALITO: She represented herself initially, and we take those very seriously. We give those just as much consideration, in fact more consideration in many respects than we do with the cases without lawyers because we take into account that somebody who is representing himself or herself can't be expected to comply with all the legal technicalities.
But, for whatever reason, our court system for handling the monitoring of recusals in these pro se cases is different from the system that we use in the cases with lawyers, and maybe that's because recusal issues don't come up very often in pro se cases.
But in any event, in a case with a lawyer, before the case is ever sent to us, we receive what are known as clearance sheets, and those are -- it's a sheet of -- it's a stack of papers, and it lists all the cases that the clerk's office is thinking of sending to us. It lists the parties in each case, and it lists the lawyers in each case, and it says, "Do you need to recuse yourself in any of these cases?"
And this is the time when the judges -- and this is the time when I focus on the issue of recusal. And I look at each case, I look at the parties, I look at the lawyers, and I ask myself, "Is there a reason why I should not participate in the case?"
Now, because this case, the Monga case, was a pro se case, it didn't come to me with clearance sheets. I just received the briefs, and it had been through our staff attorney's office.
They take a first look at the pro se cases, and they try to make sure -- they try to translate the pro se arguments into the sort of legal arguments that lawyers would make, to help the pro se litigants. And they give us a recommended disposition and a draft opinion.
And when this came to me, I just didn't focus on the issue of recusal. And I sat on the initial appeal in the case. And then after the case was decided, I received a recusal motion. And I was quite concerned because I take my ethical responsibilities very seriously.
So I looked into the question of whether I was required, under the code, because I just wanted to see where the law was on this. Was I required, under the code of conduct, to recuse myself in this case?
And it seemed to me that I was not. And a number of legal experts, experts on legal ethics, have now looked into this question, and their conclusion is: No, I was not required to recuse. But I didn't stand on that because of my own personal policy of going beyond what the code requires.
So, I did recuse myself. And, not only that, I asked that the original decision in the case be vacated -- that is, wiped off the books -- and that the losing party in the case, the appellant, Ms. Monga, be given an entirely new appeal before an entirely new panel.
And that was done. And I wanted to make sure she did not go away from this case with the impression that she had gotten anything less than an absolutely fair hearing.
And then, beyond that, I realized that the fact that this had slipped through in a pro se case pointed to a bigger problem, and that was the absence of clearance sheets.
So, since that time, I have developed my own forms that I use in my own chambers. And, for pro se cases now, there's -- I have a red sheet of paper printed up, and it's red so nobody misses it. And when a pro se case comes in, it initially goes to my law clerks. And they prepare a clearance sheet for me in that case and then they do an initial check to see whether they spot any recusal problem.
And if they don't, then there's a space at the bottom where they initial it. And then it comes to me, and there's a space at the bottom for me to initial to make sure that I focus on the recusal problem.
And in very bold print at the bottom of the sheet, for my secretary, it says: No vote is to be sent in in this case unless this form is completely filled out.
So there are a number of internal checks now in my own office to make sure that I follow my own policy of going beyond what the code requires.
HATCH: In other words, there was never any possibility of you benefiting financially, no matter how that case came out, is that right?
ALITO: There was absolutely no chance and...
HATCH: You actually did recuse yourself when the question was eventually raised, even though you didn't have to?
ALITO: That's correct, Senator.
HATCH: Did you genuinely feel you were either legally or ethically required to recuse under those circumstances?
ALITO: I did not think the code required me...
HATCH: You were just going beyond, which has been your philosophy...
ALITO: That's right.
HATCH: ... and your personal ethical approach to it.
Well, your own conclusion certainly is supported by the independent ethics experts that you mentioned, who have recently examined this case. I know one of them is Professor Geoffery Hazard from the University of Pennsylvania.
Now, that name stuck out in particular because I remember when a financial conflict-of-interest issue arose in connection with the nomination of Supreme Court Justice Stephen Breyer. In 1994, Senator Kennedy and I -- we strongly defended the Breyer nomination. I did, too.
And during the hearing, Senator Kennedy highlighted a letter from Professor Geoffery Hazard to answer Justice Breyer's critics.
Well, Professor Hazard, he has examined this matter and concluded that you, Judge Alito, handled it, in his words, "quite properly."
Now, Mr. Chairman, I'd like to put not only Professor Hazard's letter into the record, but the letter of Stephen Lubet, Thomas Morgan and Professor Ronald Rotunda, all of whom found that you made no ethical mistakes.
SPECTER: Without objection, all will be made a part of the record. HATCH: All right.
And let me just observe that these are all top ethics experts in our country today. And, you know, I have to say that Morgan of the George Washington University Law School, he happens to be the co- author of the nation's most widely read ethics textbook. Now, he was blunt in his assessment, saying that there was simply no basis for suggesting that you did anything improper.
So I'm glad to put those in the record.
Now, you actually did more than simply recusing yourself in this case. As you have explained, you have even set up a special system to make sure that this -- you know, that there never is going to be a question about this. And so you went farther than you were legally or ethically mandated to do.
ALITO: I did, Senator. And that is what I have tried to do throughout my time on the bench.
HATCH: When the new panel of judges looked at this case, how did they rule?
ALITO: They ruled the same way that we had, and we had ruled the same way that the district court did.
So let me just clarify this one more time, and you tell me if this accurately describes the situation.
You did not believe that you were ethically or legally required to recuse yourself in this case. All the ethics experts agree with you. Yet you recused yourself anyway when the issue was raised.
The party raising the issue got an entirely new hearing before a new and different panel of judges, who ruled the same way that you did originally.
Does that about sum it up?
ALITO: That's correct, Senator.
HATCH: Well, I have to say, Judge, that you went above and beyond your ethical duties here. And I think you're to be applauded, not to be criticized, for your rigorous attention to judicial impartiality and integrity.
Now, let me just go into another matter here before I finish here.
Some Supreme Court nominees have had legislative experience. The justice you will replace, Justice O'Connor, served in the Arizona State Senate. Justice Breyer was chief counsel to Senator Kennedy when he chaired this committee. I have tremendous respect for both of them. Judge Alito, you have had no legislative experience, and there are those of us who are concerned that your many years of experience in the executive branch may have biased you in favor of executive power. Clearly, some feel that way, that that's a possibility.
Yesterday, one of my Democratic colleagues claimed that your instincts are to defer to the executive, to grant prosecutors whatever power they seek -- that sort of thing. And I suppose that in 15 years on the appeals court, that you have participated in what I would estimate nearly 5,000 cases.
You have had many opportunities to review challenges to executive power. Is that correct?
ALITO: I have, yes.
HATCH: Well, I am thinking of cases such as the United States v. Kithcart, where you reversed a criminal conviction because the police lacked probable cause for a search; or Bolton v. Southeastern Pennsylvania Transportation Authority, where you ruled for a former maintenance custodian for a public transportation agency, concluding that the Fourth Amendment barred a suspicionless drug test.
I want to make it clear that simply giving such examples of results on the other side of the ledger does not by itself prove that you are a good judge or a bad judge. Without also talking about the facts and the law in each case, merely tabulating winners and losers does not offer much.
But since my colleagues on the other side occasionally have their tally sheets, and actually some have even claimed that you may be biased when certain results seem to suit them, could you give me some more examples of cases where you voted against executive powers?
ALITO: Yes, certainly, Senator. Brinson v. Vaughn is an example of that. That was a habeas case involving a murder conviction. And I concluded, and my panel concluded, and I wrote the opinion, saying that there had been racial discrimination or enough to have a hearing on the possibility of racial discrimination in the selection of the jury in that case. And, therefore, we reversed the decision of the district court.
Williams v. Price is another example. There, we found -- and that was another murder case. And so what's involved here in these cases is really the most important thing that is litigated on the criminal side in the federal courts. That was a case where the district court had denied the writ of habeas corpus and we reversed, because we found that there had been an error in excluding testimony that showed racial bias on the part of the jurors.
There was another murder case, United States v. Murray. This was a federal prosecution, and we had to reverse there because we concluded, and I wrote the opinion there, that the prosecutors had introduced evidence...
HATCH: You could go on and on, but my point is that in approximately 5,000 cases, you can find just about anything you want to to pluck out and say, oh he didn't do right here, or he did right here.
I mean, the fact of the matter is that you, as far as I can see, have always done your utmost to live up to your responsibilities as a federal court judge, and that you have done so throughout your 15 years on the bench, even though members of this illustrious body, the United States Senate, might differ with you on occasion, and others might also.
HATCH: But I don't know a judge alive who's been on the bench 15 years that doesn't have cases that some of our illustrious members disagree with. So that's the point I am trying to make.
Let me just shift here for a second. I am interested in exploring the kind of judge you are. As you can see, some of these questions have all been directed toward what kind of a judge you are.
But I am interested in what is often referred to as a judicial philosophy, which means how you understand the role the judges play in our system of government, in general, and how judges should go about deciding cases, in particular.
I would like to explore this by giving you a chance to expand on a few things that you have said or written.
In your hearing in April 1990, which my friend, Senator Kennedy chaired, he asked you: What qualities are most important for an appellate judge?
You listed open-mindness to litigants' arguments, close attention to the particular facts and law in the case and trying not to import a judge's own view of the law that should be applied in the case.
Now, in your statement yesterday, you said that your experience on the appeals court has taught you a lot about, as you put it, quote, "the way in which a judge should go about the work of judging."
What has that experience taught you? How has it shaped the answer you gave before you went on the bench?
ALITO: My general philosophy is that the judiciary has a very important role to play. And, in speaking with Senator Leahy, I highlighted some of that.
But the judiciary has to protect rights. And it should be vigorous in doing that. And it should be vigorous in enforcing the law and in interpreting the law in accordance with what it really means and enforcing the law even if that's unpopular.
But, although the judiciary has a very important role to play, it's a limited role. It is not -- it should always be asking itself whether it is straying over the bounds, whether it's invading the authority of the legislature, for example, whether it is making policy judgments rather than interpreting the law. ALITO: And that has to be a constant process of reexamination on the part of the judges. And that's the role that the judiciary should play.
Now, my experience on the bench has really reinforced for me the importance of the appellate process and the judicial process. And I described it yesterday.
And that is the process of really engaging the arguments that are made, reading the briefs, and approaching it with an open mind, always with the possibility of changing your mind based on the arguments and based on the facts of the particular case.
HATCH: Well, another context in which you discussed your judicial philosophy is the questionnaire that you received from this committee, which asked for your views on judicial activism.
Now, the very first words of your answer were as given here today, "that the Constitution sets forth the limited role for the judicial branch."
Now, to hear some of my colleagues describe it yesterday, judges have virtually unlimited power to right all wrongs, protect everyone from everything and make sure that government officials everywhere behave themselves.
As an appeals court judge, the decisions of the Supreme Court add to the limitations or constraints you must observe, in my opinion.
I'm wondering whether you believe this notion of limited judicial power applies also to the Supreme Court; and if so, how it applies when there is no higher court than the Supreme Court.
Does that mean that the Supreme Court should perhaps be even more cautious, even more self-restrained, since there is no appeal from any errors that they might make?
ALITO: I think that's a solemn responsibility that they have. When you know that you are the court of last resort, you have to make sure that you get it right.
It is not true, in my judgment, that the Supreme Court is free to do anything that it wants. It has to follow the Constitution and it has to follow the laws.
Stare decisis, which I was talking about earlier, is an important limitation on what the Supreme Court does. And although the Supreme Court has the power to overrule a prior precedent, it uses that power sparingly, and rightfully so. It should be limited in what it does.
HATCH: Another place in which you have written about what might be called judicial philosophy is in your opinions; not that you've spent much time opining about such matters in the abstract. Nevertheless, I would like you to expand a little on a few of the things you have written in this regard. For instance, in New Jersey Payphone Association v. Town of West New York -- this was a 2002 case -- for example, you wrote the following. Quote, "It is well established that when possible federal courts should generally base their decisions on nonconstitutional rather than constitutional grounds. The rationale behind the doctrine of avoiding constitutional questions except as a last resort are grounded in fundamental constitutional principles," unquote.
Can you explain those fundamental principles and whether you think the Supreme Court, as well as the appeals court, should follow this imperative to avoid constitutional decisions?
ALITO: I do. I think that's a very important principle.
As I recall, Justice Brandeis, in the Ashwander case, was the one who articulated it most eloquently.
And it's, therefore, an important reason. Because a constitutional decision of the Supreme Court has a permanency that a decision on an issue of statutory interpretation doesn't have.
So if a case is decided on statutory grounds, there's a possibility of Congress amending the statute to correct the decision if it's perceived that the decision is incorrect or it's producing undesirable results.
I think that my philosophy of the way I approached issues is to try to make sure that I get right what I decide. And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be decided, and not going to broader grounds for a decision when a narrower ground is available.
HATCH: You've addressed issues such as abortion at different points in your career. You addressed it when you worked for the solicitor general. You might have addressed it in several cases on the appeals court.
It might be tempting to say that if you came to one conclusion while in one role, you will necessarily come to the same conclusion on the issue while in a different role.
Now, I think you've explained it pretty well, but let me just ask one other question: Could you please explain how judges address issues differently than advocates? And how does the requirement of the case or a controversy or a limitations such as a particular standard of review shape how judges address these issues?
ALITO: The standards of review are very important, and often they are prescribed by Congress. Congress gives us authority, jurisdiction to decide certain questions, but it says that you don't have the authority to go back and do what you would have done if you were the trial judge or if you were the administrative state. You have a limited authority of review.
And I think it's very important for us to stay within the bounds of the authority that Congress gives us. And I think that's a very important part of our function.
HATCH: Thank you, Judge.
SPECTER: Thank you, Senator Hatch.
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