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Day Two of Alito Hearings; Bush Warns Critics

Aired January 10, 2006 - 16:04   ET


WOLF BLITZER, CNN ANCHOR: In fact, we're going to go back inside right now. Republican Senator Jeff Sessions of Alabama is asking questions of Judge Alito.
SEN. JEFF SESSIONS, (R) ALABAMA: ... arguments of the parties involved. Is that correct?

JUDGE SAMUEL ALITO, SUPREME COURT NOMINEE: That's an important part of the legal process. Anybody who's sat on a jury, they've probably been instructed by the judge not to reach conclusion about the case until they've heard all the evidence, not to reach premature conclusions, and judges have the same obligation, it doesn't mean you don't think about things, do you think about them. But you don't reach your final conclusion until you've gone through the entire process.

SESSIONS: But you said earlier, no person in this country, no matter how high or powerful is above the law, and no person is beneath the law. Can you assure us that you have the courage and the determination to rule, according to your best and highest judgment of the value of the case, regardless of whether or not this person who appointed you or the Congress who confirmed you or any other political pressure as it may fall upon you?

ALITO: I can, senator, I would do that to the best of my ability. That's what I've tried to do on the Court of Appeals, and if I'm confirmed, that's what I would do on the Supreme Court.

SESSION: Well, I believe you will, that's your reputation, that's what other lawyers say, that's what professionals who know you conclude, and I think it's an important commitment that you've made to us. You know, we have arguments about a number of cases and the Rybar Case has come up a good bit it. It involved a machine gun. I was a United States attorney as you were, and we prosecuted machine gun cases for years. The Supreme Court has in the 922 - on section 922, there's no jurisdictional element.

Now historically, criminal statutes of federal law have jurisdictional elements. The most common statutes historically they were prosecuted were interstate transportation of stolen motor vehicle. It's not a stolen motor vehicle, it's the interstate transportation that makes it a federal crime. Or the interstate transportation of a stolen property or kidnapping. Kidnapping within a state is not a federal crime. It's only kidnapping that goes interstate

So I guess I would ask you to explain for those who may be listening today. What this historical procedure is that requires a jurisdictional element of an interstate nexus for the federal government to be able to prosecute a crime in some state or county in America?

ALITO: Yes, senator, certainly. Well, let me start with the Constitution. The Constitution gives the legislative branch certain powers. And they're enumerated in the Constitution. One of those powers is the power to regulate interstate and foreign commerce, and a great deal of legislation that Congress passed during the 20th century was regulation and was based on its power to regulate interstate and foreign commerce in many of the criminal statutes that Congress has passed. The federal criminal statutes are based on Congress' power to regulate interstate and foreign commerce.

So it's necessary for each of these statutes to fall within this power, to regulate interstate and foreign commerce. And one of the ways of ensuring that each exercise of this power falls within Congress' authority under the commerce clause, is to require that the jurisdictional element be proven in the case. And in the case firearms, as I mentioned earlier, the Supreme Court has said it's enough to show that the firearm, at some point in its history, traveled in interstate and foreign commerce, and my experience as a U.S. attorney and before that as assistant U.S. attorney was that this is not a difficult burden for prosecutors to meet. I can't recall a case during the time when I was U.S. attorney that anybody expressed the slightest problem with satisfying this. So this is a very simple way of satisfying the interstate commerce element in the case of firearms offenses.

SESSIONS: I couldn't agree more, and that's what all the traditional firearm laws called for. And that's how we proved every case that I've prosecuted. You put somebody on. I proved it once because it said "Made in Italy" on the gun. But you prove the gun had been transported in interstate commerce, and that's an element that gives the federal jurisdiction, and as I understand your opinion, you said if Congress had simply put that in the statute as an element of the offense, then, it would have met constitutional muster.

So I guess say to my colleagues on the other side and others, maybe we ought to check this law out and let's get up a piece of legislation that puts in the jurisdictional element. Like all the other historic criminal offenses have and we get this thing done instead of fussing about it. I feel strongly about that, but when you don't make it a jurisdictional element, then it's not a matter of proof. Is that not right, Judge Alito? And therefore, the defendant is not having all the elements of the case proven to a -- beyond a reasonable doubt to the jury that hears the case, that's why it's important.

ALITO: That's correct.

SESSIONS: We talked about a lot of these cases, and I would generally like to express my disagreement with those who criticized the Garrett case. Did involve the University of Alabama, and I believe that the attorney general of Alabama was correct to assert that the plaintiff could sue, could get back wages, could get their job back, but under the sovereign immunity doctrine that protects states from lawsuits, that under the way that statute was passed, they could not get money damages against the State of Alabama.

I think that was a core issue in it. I also would like to join with Senator DeWine and his cogent analysis of precedent and superprecedent. And think that was insightful for us, and would like to be on the record as joining with that.

Judge Alito, back 20 years ago you wrote a memorandum to Solicitor General Charles Fried who was a law professor, I guess, before he became solicitor general and went back to Harvard and is there now, a brilliant legal mind, he was the solicitor anyone will, and you worked for him.

You submitted a memorandum on a Pennsylvania case, a case that came out of Pennsylvania, and it seemed to me to be a preliminary analysis of that issue and other question of whether or not that case should be -- whether the Department of Justice should intervene in that case and file a friend of the court brief. Was it a preliminary overview of the issue and not the final brief or final summary or argument for the appeal?

ALITO: And that's the Thornburgh case you're referring to, senator. Yes, it wasn't the brief. It was a memorandum about whether the government should file a brief as a friend of the court.

SESSIONS: And you pointed out a number of points in that decision that was being questioned that I thought were -- the court had overreached. And gone too far, a number of them are quite erroneous, it appeared to me. And you analyzed that very carefully. But before you concluded your argument, you suggested -- not suggested. You stated that you did not think a frontal assault on Roe versus Wade would be appropriate. Is that correct?

ALITO: Yes, that's correct.

SESSIONS: And was it not the position of President Reagan and the attorney general of the United States at that time that Roe versus Wade was wrongfully decided and they would seek the opportunity, at some point, to seek the overruling of it?

ALITO: That was the express position of President Reagan himself. He had spoken on the issue. And he had written on the issue.

SESSIONS: So your opinion to the solicitor general, as a young staff attorney in the solicitor general's office, was that in some ways contrary to that of the president of the United States.

ALITO: Well, I was doing what I thought my job was as an advocate which was to outline the litigation strategy that would be in the best interests of my client, even what my client was interested in, and seemed to me that the strategy that I recommended was the best strategy to be followed.

SESSIONS: And did they follow your suggestion? ALITO: No, they did not. They argued that Roe versus Wade should be overruled, and the Supreme Court rejected that.

SESSIONS: They in fact carried out a frontal assault, and it was not approved by the court. So I think that, to me, plus your other decision in which you ruled that health and human services funds could be utilized to fund an abortion for those who qualify, was a closed question, that case was, I thought. There was a dissent in it. But you ruled in favor of the pro-choice, the pro-abortion side of that case, even though a dissent argued that it was in error, is that correct?

ALITO: That is correct. That's what I thought the law required. I thought we were requires to defer to the Department of Health and Human Services' interpretation of the statute, and so that's how I voted, and if I had been out to implement some sort of agenda to strike down -- to uphold any abortion regulation that came along, then I would not have voted the way I did in that Elizabeth Blackwell case.

SESSIONS: Back in your memorandum about - in 1985 on the question of abortion. One of the provisions of the Pennsylvania law that was struck down by the Court of Appeals simply said that there must be a humane and sanitary disposal of aborted fetuses. And you thought that was unwise, and you pointed out that there's a federal statute already on the book that mandates the humane disposal of excess wild free roaming horses and burros. Did you not?

ALITO: Yes, that's correct, that was a statute.

SESSIONS: This is the idea that every time the court rules on a pro-abortion opinion, that they're always correct, I think, is not true. I think the court has been awfully arrogant and dismissive of the state's rights and legitimate concerns in some of these questions that we're dealing with.

Judge Alito, you know the salary that a federal judge makes, is that right?

ALITO: I do, all too well.

SESSIONS: You know what it would be on the Supreme Court?

ALITO: I actually don't know, exactly, no.

SESSIONS: A little more, I think, not much. You think you can live on that?

ALITO: I can. I've lived on a federal judge's salary up to this point.

SESSIONS: You've been accused of favoring an all-powerful executive, couple of times in this committee. Can the president cut your pay?

ALITO: No, he can't do that. That's in the constitution says that, fortunately. Well, nobody can. The president certainly can't, and Congress can't either.

SESSIONS: A sigh of relief there. They can increase it, though, right?

ALITO: They can, yes!

SESSIONS: Well, we have a tight budget, senators and congressmen, all feel they'll tell you privately they think we need to be paid more. We are paid generously in my view, and maybe we need to set some examples about financial management, and maybe we'd like to do more, but it's difficult. But I raise that point because a Supreme Court can declare null and void a legislative enactment by the Congress can, it not? If it violates the Constitution?

ALITO: Yes, it can.

SESSIONS: In their opinion?


SESSIONS: Does anybody review the Supreme Court's review?

ALITO: No. No.

SESSIONS: And Congress can cut off money for any program they want to, in fact, the Antideficiency Act says it's a crime for any agency to spend money that as not been appropriated by Congress. Is that a reviewable act by anyone for Congress not to find a program or agency of the United States government?

ALITO: No. I don't think that's reviewable.

SESSIONS: And aren't there things that the executive branch can do that are not reviewable?

ALITO: There are certainly some things that are not reviewable. Vetoes are not reviewable. Pardons are not reviewable.

SESSIONS: So the mere allegation that an act of the president is unreviewable does not -- may not be as disastrous as it sounds or as bad as it sounds, because certain branches are given certain powers.

ALITO: That's correct.

SESSIONS: I'd like to talk a little bit about this question of activism, and I want to be frank about it. Some of our liberal colleagues have correctly made the point that conservatives can be activists too.

Would you - and if you take the definition of activism as an action by a judge who allows their personal, political or social or moral values to override their commitment to the law. Do you believe that a judge who's conservative can be an activist just as easy as one who's liberal?

ALITO: Yes, I do. I don't think that activism has anything to do with be being a liberal or being a conservative. It has to do with not following the proper judicial role. It has to do with a judge's substituting his or her own views for what the Constitution means and for what the laws mean.

SESSIONS: Now, if a statute passed by Congress plainly violates the Constitution, is it an activist decision if the court strikes it down, in your opinion?

ALITO: No, I think that's been settled since Marbury v. Madison back at the beginning of the 19th Century. When a case is presented to the Supreme Court and there's a question raised about the constitutionality of a statute and the court concludes that the statute is unconstitutional, it's the obligation of the court to follow the Constitution and not the statute.

SESSIONS: Well, if you take the definition of activism, I think that Senator Hatch and others have used that indicates, as we just discussed, that it's departing from the faithful application of the law, I think you can have liberal and conservative activists.

But I would just say to you the mere striking down of a statute that's unconstitutional is not activism, not if you're faithful to the Constitution and to the laws of the land. And I would say this. I believe on our side of the aisle, the deep concern we have about judicial activism is a legitimate one.

We believe that there has been a liberal social agenda being promoted too often by the courts that's foreign to our history and contrary to the wishes of the American people. I believe your philosophy is not one to enforce a conservative activism. I believe your philosophy is simply to follow the law and let the political branches debate these issues and decide them through the popular political process. Is that fair to say?

ALITO: That's exactly correct. The judiciary should do what it is supposed to do, but it has to have respect for the political process. And our constitutional system sets up a government under which most of the decisions, the policy decisions, the things that affect people and their daily lives, the spending of money, taxing, decisions about foreign policy, and many other areas, are to be made by the political branches of the government. And the judiciary's role is confined to enforcing the Constitution and enforcing the laws, and not going beyond that.

SESSIONS: As you analyze how to interpret the Constitution of the United States or a statute passed by the United States Congress, do you believe that authoritative insight can be obtained by reading the opinions of the European Union?

ALITO: I don't. I don't think that it's very helpful. In fact I don't think it is helpful to look at decisions of foreign courts for the interpretation of our Constitution. I think we can do very well with our own Constitution and our own judicial precedents and our own traditions. And I don't say that with disrespect to the other countries, but I don't think that there are insights to be provided on issues of American constitutional law by examining the decisions of foreign courts.

I think that it's very interesting from a political science perspective to see what they've done, and I've personally been interested in this over the years. And I think it's flattering to us that so many other countries have followed our judicial traditions. But on issues of interpretation of our Constitution, I don't think that that's useful.

SESSIONS: Judge Alito, this is a big deal in our country today. Millions of Americans believe that the court is losing discipline, and that it's not remaining faithful to the Constitution. In fact, I share many of those views. A lot of people do.

And do you think that if a court, in fact, is not faithful to the law, but allows personal or political or social views to influence their decisions, that this could, in the long run, endanger public respect for law, and even undermine the great heritage of the rule of law that we have in this country?

ALITO: I think that everybody who holds a public office under the Constitution has a solemn responsibility to follow the Constitution and the laws that define the role that that person, that officer, is supposed to play.

And I think that the continued success of our constitutional system and public respect for the constitutional system are dependent on people who have the public trust doing that, making a strong effort to follow the provisions of the Constitution and other laws that define the role that they are supposed to play.

SESSIONS: I'd like to just once more touch on this Groody case in which there was a search of a young girl. A warrant was issued, was it not, by federal magistrate? Was it a federal magistrate?

ALITO: It was a state magistrate.

SESSIONS: State magistrate. And police officers go to the state magistrate, and they get a warrant. And the magistrate says that the affidavit is made a part of the search warrant. And the officers take it. And in their search warrant, they made affidavit that the individuals in this house, known for distributing drugs, often had drugs on their persons. And they then went and executed the warrant after going to the court and getting approval.

And they find people on the premises. And there were two females. And a female officer took the two females into a bathroom and did a quick search by asking them to pull down their outer garments, not all their garments, pull up their blouse, and determine they had no contraband or weapons on them. And that was that. And the case came before you years later, I suppose, on a lawsuit against the police officers. And that's what you were ruling on, were you not?

ALITO: That's right. Whether they were liable for money damages. And under the law, if they had a reasonable belief that they were authorized by the warrant to search people found on the premises, then they should not be liable for civil damages.

The warrant had been -- the warrant had incorporated the affidavit for purposes of establishing probable cause. And the officers had said in the affidavit that there is probable cause to believe that people on the premises may have drugs on their possession. And the magistrate judge had accepted that by incorporating the affidavit for purposes of probable cause.

And under those circumstances, I thought that at a minimum, it was reasonable for the officers to believe that the judicial officer, the magistrate, had said that they were to do exactly what they did.

SESSIONS: I agree. Thank you, Mr. Chairman.

SEN. ARLEN SPECTER (R-PA), CHAIRMAN, JUDICIARY COMMITTEE: Thank you, Senator Sessions. Thank you, Judge Alito. At this point, we'll take a break until five minutes to 5:00.

BLITZER: All right, so they're taking a break now from these hearings. That was the Chairman Arlen Specter. Samuel Alito has a chance to rest up a little bit before the next round of questioning. Russ Feingold, the Democratic senator from Wisconsin, one of two Democratic senators from Wisconsin, will begin the questioning.

We're going to take a break ourselves right now. Much more of our coverage coming up. We're also going to check all the late- breaking news outside of this hearing here in Washington. We'll be right back.


BLITZER: To our viewers, you're now in THE SITUATION ROOM, where new pictures and information around the world are arriving all the time.

Happening now, the Senate Judiciary Committee members versus Samuel Alito. The Supreme Court nominee undergoes a marathon interrogation. We're in a break right now, but it's not over yet by any means. We'll bring you up to speed on what Alito has said so far, what he hasn't said, and whether Democrats may see fuel for a filibuster.

Also this hour, questions about the president's secret spying program are asked in the Senate hearing room and in our new CNN poll. Are Americans outraged by wiretaps without warrants?

And more lives on the line because of bird flu. Turkey's government opens a crisis center as the deadly virus and the fear of catching it keep spreading. I'm Wolf Blitzer. You're in THE SITUATION ROOM.

We're in a time-out now from the showdown over the Judge Samuel Alito confirmation hearings. The Supreme Court nominee and the senators grilling him could probably use a little bit of a break. That's what they're going through right now. They've been going at it for several hours with Judiciary Committee members trying to pin down Alito on some of the most powerful points of contention in the courts and in the political arena.

We'll go back to the action once it resumes. And you can follow all the action along, catch up what's being said, what's not being said, what's happening with streaming video, on CNN's pipeline. That's at

The president's secret domestic spying program is a hot topic in the Alito hearings and around Washington. But are Americans around the country fired up about it? We have brand new poll numbers we're watching. Our senior political analyst Bill Schneider has been going through those numbers. He's joining us live -- Bill?

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Wolf, if abortion is topic A at the Alito confirmation hearings, the issue of executive power is right behind it.


SCHNEIDER: The issue of presidential power versus civil liberties is a big one at the Alito confirmation hearings.

SEN. EDWARD KENNEDY (D), MASSACHUSETTS: He has supported a level of overreaching presidential power that, frankly, most Americans find disturbing and even frightening.

SCHNEIDER: Do they? The view that the Bush administration has gone too far in restricting people's civil liberties in order to fight terrorism has increased from 11 percent in 2002 to 21 percent in 2003 to 38 percent now. But 59 percent still say they have no problems with the restrictions. What about the policy that's gotten a lot attention recently, warrantless wiretaps?

ALITO: The government would have to come forward with its theory as to why the actions that were taken were lawful.

SCHNEIDER: Is the American public outraged by warrantless wiretaps of conversations between American citizens and suspected terrorists in other countries? They're split. Fifty percent say the Bush administration was right to wiretap such conversations, 46 percent say it was wrong.

What's behind the split? Partisanship. It's a Bush administration policy. Eighty percent of Republicans say it was right, most others say it was wrong.


SCHNEIDER: On this issue, like many others in today's political environment, partisanship overrides everything -- Wolf?

BLITZER: Bill Schneider reporting for us. Thanks very much.

President Bush appears to be laying some groundwork today for an expected election year battle over Iraq. In a speech to veterans, he warned his critics to be, quote, "responsible." Let's bring in our White House correspondent Suzanne Malveaux -- Suzanne? SUZANNE MALVEAUX, CNN WHITE HOUSE CORRESPONDENT: Well, Wolf, President Bush clearly trying to help the American people understand what's going to happen in the next couple of weeks as we get those general election results from the Iraqi elections. First, he warned to expect an increase in violence. He also on to say in the short term, expect political turmoil in Iraq as different factions jockey for power.

The president also made it very clear as well that he, of course, has an eye on the congressional midterm elections. Mr. Bush trying to set the terms for Iraq debate. Earlier today, he said that -- he issued a warning to his critics, essentially saying that voters will make them pay for their harsh remarks.


GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: The American people know the difference between responsible and irresponsible debate when they see it. They know the difference between honest critics who question the way the war is being prosecuted and partisan critics who claim that we acted in Iraq because of oil or because of Israel or because we misled the American people.


MALVEAUX: Wolf, also from the president's speech, it is very clear that the White House is using various approaches to try to convince the American people to stick with this U.S. mission in Iraq. It includes, of course, setting low expectations, offering new details, and even citing some poll numbers from the Iraqis themselves saying that they are optimistic about their future -- Wolf?

BLITZER: Suzanne Malveaux at the White House, thanks very much.

The Alito confirmation hearings are on Jack Cafferty's mind. Let's head up to New York and Jack Cafferty and "The Cafferty File." Hi, Jack.

JACK CAFFERTY, CNN ANCHOR: How you doing? This stuff is just grueling. I started watching at home this morning, and I'm tired. And I've just been looking at it sporadically throughout the day. They must be exhausted down there in Washington.

Judge Alito's on record with some pretty strong views opposing legalized abortion, at least in the past. Memo 1985, he supported a strategy to gradually overturn Roe v. Wade. He also said in a job application that same year he believed the Roe case was wrongly decided. And he's on record as saying the Constitution does not guarantee a woman the right to choose.

But in today's hearings, Alito said he has great respect for precedent, and other precedents supporting Roe v. Wade are numerous. So it really, in the end, comes down to a question of trust. The earlier statements were made when Alito was a working lawyer, an advocate, if you will. Obviously, the role of a Supreme Court justice is very different from that.

So here's the question. If he's confirmed, do you trust Judge Alito to do the right thing when it comes to Roe v. Wade? You can e- mail us at or you can go to Bit of a trick question, I suppose. Depends on what your interpretation of the right thing is. But I'll say this, Judge Alito is no Harriet Miers, Wolf.

BLITZER: OK, Jack. Thanks very much. Even during this break from the hearings, Arlen Specter is speaking with reporters outside the hearing room. Let's listen in briefly.

SPECTER: ... to give his name, rank, and serial number. The most he would give as prisoner of war is name and rank, wouldn't even give his serial number. And it has evolved considerably, and I think that Chief Justice Roberts set a good standard saying that he would comment about cases which had been decided like Griswold, Eisenstadt, so long as the prospect was not present of coming before the court again.

But Judge Alito has gone farther. And I think that's given a lot more substance to these hearings. I have analogized in both the Roberts hearing and this hearing with Judge Alito that the tradition has been for nominees to answer just about as many questions as they have to to be confirmed.

And what these nomination proceedings boil down to is a subtle minuet. Well, I think the dance pattern has changed. I was trying to think what would be an appropriate reference, maybe the Foxtrot. But I think that's a development in today's proceedings worth noting.

BLITZER: All right, so Arlen Specter speaking with reporters even during this break from the hearings. We're going to continue to monitor what's coming up in those hearings. Much more on the supreme battle over Samuel Alito.

A little while ago, I spoke with Democratic Senator Patrick Leahy. He's the ranking Democrat on the committee. Just ahead, we'll hear from Republican Orrin Hatch. He's a senior member of the judiciary committee asking Alito questions.

Also ahead, who planted that explosive device at a busy San Francisco Starbucks, and why? We'll go live to the Bay Area for the latest twists in the investigation.

And we're following another developing story out of Florida. A bank standoff right next to Disney World. We'll tell you what's happening there. Stay with us. You're in THE SITUATION ROOM.


BLITZER: You're now back in THE SITUATION ROOM. Welcome back. We're awaiting the resumption of these hearings, the Senate confirmation hearings of Samuel Alito. We'll go back there live once they begin.

Let's go live to the CNN Center in Atlanta. Fortunately, after too many days off, CNN's Zain Verjee joining us once again with a quick look at some other stories making news. I've got to tell you, Zain, a lot of our viewers missed you.

ZAIN VERJEE, CNN ANCHOR: Thanks, Wolf. I appreciate that. I'm a bit rusty, though, I have to warn and you them. So apologies in advance.

We've got a developing story in central Florida. The Osceola County Sheriff's Office says two suspects are involved in a hostage standoff at a bank near Disney World. Now, SWAT team hostage negotiators and FBI agents are on the scene. At least two hostages have been released. Police say one hostage is still being held. The same bank was robbed in November.

Doctors say Israeli Prime Minister Ariel Sharon is showing increased brain function following that massive stroke he suffered last week. They say Mr. Sharon is moving limbs on both sides of his body, a sign of neurological progress. They also report that his vital signs have stabilized. Doctors are gradually reducing the drugs being used to keep him in a medically induced coma.

And Iran resumed nuclear research today over objections from many in the international community. Tehran's saying that its nuclear program is essentially for peaceful purposes, and it's actually, according to Tehran, left in place a ban in nuclear fuel production. The U.S., Britain, and Germany are among those expressing outrage over the move. And the head of the International Atomic Energy Agency, Mohammed El Baradei says that the world is, in his words, "running out of patience."

Ant Turkey's trying to contain the spread of bird flu as the number of confirmed human cases in the country rose to 15 today. Authorities announce that they've opened a bird flu crisis center in Ankara. Two poor neighborhoods in Istanbul have been quarantined, and mass killings of poultry are taking place in a quarter of Turkey's 81 provinces -- Wolf?

BLITZER: CNN's Zain Verjee here in THE SITUATION ROOM with us.

Let's get back to our top story right now, the Samuel Alito confirmation hearings. This afternoon, we heard from Democratic Senator Joe Biden, who had some harsh words for the Supreme Court nominee. Biden took issue with the judge's membership at a controversial organization known as Concerned Alumni of Princeton University. He then poked fun at Alito's college ties to Princeton itself. Here's briefly what he had to say.


SEN. JOSEPH BIDEN (D), DELAWARE: I admit, I have little -- you know, one of my dilemmas is, I have two kids who went to Ivy League schools. I'm not sure if my grandfather Finny (ph) will ever forgive me for allowing that to happen. But all kidding aside, I wasn't a big Princeton fan, and so maybe that's why I focused on it and no one else did.


BLITZER: Well, "Not so fast, necessarily," say those online critics. Our Internet reporter Abbi Tatton is checking the situation online. What are you picking up, Abbi?

ABBI TATTON, CNN INTERNET REPORTER: Wolf, bloggers out there are not letting anyone in those hearings get away with anything today. Every single detail is being scrutinized. We just heard Senator Biden's stats on Princeton University. Today, the National Review's "The Corner" points out that a couple of years ago in a speech at Princeton University, his stance was a little bit different. Let's listen.


BIDEN: It's an honor to be here. It would have even been a greater honor to have gone here.


TATTON: Now, Senator Biden went on to say that he even pushed Princeton on his children. Now, this was pointed out at the "National Review" online at "The Corner," when an eagle-eyed reader had seen the link to the Web cast at Princeton University and sent it into that blog. And it was put out for everyone to read it. It may seem like a minor detail, petty even, but it just indicates the level of analysis and also the wealth of information available online as everyone is scrutinizing what's being said -- Wolf?

BLITZER: Abbi, thank you very much. It's amazing what's going on with the situation online nowadays. You can you barely say anything without someone checking and rechecking and picking it up. Very interesting point. Thanks very much.

Senator Orrin Hatch is a senior member of the Judiciary Committee. He's joining us now. He's a Republican of Utah.

Senator, always good to have you here in THE SITUATION ROOM. I know you're anxious to get back into those hearings, but I assume you're very pleased with the way Judge Alito's handling himself.

SEN. ORRIN HATCH (R), UTAH: Well, he really has handled himself well. He's clearly a legal genius, and I think that's coming through very well. And he's certainly answered all of the questions, I think, adequately and well. And I think even the Democrats are blown away by it. And I hope that this means that they'll be fair to him when they find they have to vote.

BLITZER: Well, when you say the Democrats are blown away by, are you hearing behind the scenes from your Democratic colleagues that they like what they're hearing? Because publicly, they're not saying that.

HATCH: Well, I'm not that optimistic, having seen what they did to Roberts. You know, when you have 22 of the Democrat -- in other words, half of the Democrats in the Senate -- vote against John Roberts, who clearly was a superstar, you know, it makes you wonder if they can vote for any Republican nominee.

In the case of Alito, Alito clearly is also a superstar. He's clearly a very bright man with a tremendous background in the law, answers the questions in a straightforward manner, and, you know, isn't distracted by some of the comments or some of the criticisms.

BLITZER: Were you pleased by what he said on the issue of abortion rights for women when the chairman, Arlen Specter, questioned him on that, Dianne Feinstein later questioned him on that, and he says he has an open mind, and what he wrote 20 years ago in the job application for a position in the Justice Department during the Reagan administration are not necessarily the views he would have going in as a Supreme Court justice?

HATCH: Well, keep in mind, there's a difference between doing things as an advocate, which he was back then, and as a judge, where you really do have to look at things anew. You really have to give every consideration to all signs of any controversy. That's a very important controversy. Roe v. Wade has existed for 32 years.

There have been all kinds cases that have affirmed, reaffirmed it, reduced it in size, restricted it. There are a lot of things there, but he said he'll have an open mind. He'll look at it carefully. He has no preconceptions that he will approach it as a judge, not an advocate or a politician. And I think that's -- I think he answered those questions very, very well.

BLITZER: After all of these years, do you believe that Roe v. Wade can or should be reversed?

HATCH: Well, I personally believe that, like John Hart Ely, who was pro-choice, Archibald Cox, and many other liberal analysts, constitutional analysts, they all agree basically that there's no basis in constitutional law for Roe v. Wade. So I don't know. I personally believe it can be overturned because bad law should always be overturned. And in the eyes of many people, both on the pro-choice side and the anti-abortion side, the pro-life side, believe that, you know, it was bad law. And frankly...

BLITZER: Is that what you believe, Senator?

HATCH: Yes, I do, because let me tell you, had this decision been left up to the elected representatives of the people, either in Congress, or the respective state legislatures, or both, we would have resolved it long before now. And there would have been a lot less fuss and screaming and shouting and hatred and difficulty in this country than what we've had today.

And as you can see, it's easily the be-all and end-all issue to Democrats on the committee and, frankly, on the United States Senate. And that's pretty pathetic.

It ought to be left up to the elected representatives of the people. And I have no doubt that some states would have abortion on demand, other states would not. But the fact of the matter is, it would be decided by the people and their elected representatives, rather than, in that particular case, seven unelected justices on the Supreme Court.

BLITZER: Another big issue that's been coming up by various lawmakers, the president's decision, which we now all know about right after 9/11, to authorize secret wiretaps of Americans and others without getting that court warrant. And some suggesting, including some of your colleagues, that the president went too far, may even have broken the law.

Arlen Specter, your chairman of the committee, told me on Sunday he's going to go forward in early February with hearings.

Did the president go too far?

HATCH: Well, let's put it this way: I'm on the Intelligence Committee, and I really can't chat about -- about one of the most highly-classified areas. But I can tell you that the president has to powers to go after terrorists and to protect the homeland and to protect our borders and to protect us from -- from weapons of mass destruction, et cetera, et cetera, et cetera, that terrorists are trying to do to our country.

And I think all of us would stand in line saying, Mr. President, use those powers, use everything you have, including all of your inherent powers, to protect our citizens. Thus far, since 2001, 9/11, we have not had a major terrorist incident in this country. And I attribute a lot of that to the firmness of President Bush and, of course, the utilization of the Patriot Act, which has given the tools to law enforcement that it did not have before with regard to international terrorists and international terrorist acts, but which we clearly have given to the anti-Mafia laws and other -- well, anti- pornography, anti-child molestation laws.

Why we wouldn't we use the same tools to go after international terrorists? And I think this president has led the fight on these issues, and I think the American people are with him. They ought to be with him. We ought to protect the homeland, and we ought to use every method at our disposal to do so.

BLITZER: Senator Hatch, thanks very much for joining us. We'll let you get back into the hearing.

HATCH: Always nice to talk to you, Wolf.

BLITZER: Thank you. Orrin Hatch is a senior member of the Judiciary Committee.

We're going to go back to the hearing right now. Russ Feingold, Democratic senator from Wisconsin, is asking questions on presidential authority, including on this surveillance issue, to Samuel Alito.

ALITO: ... sometimes these disputes between the branches of government are held by the Supreme Court to fall into that category of being disputes that can't properly be resolved by the courts.

SEN. RUSS FEINGOLD (D), WISCONSIN: Do you expect that this matter of the warrantless searches is likely to be resolved with regard to the initial political question doctrine? Or do you think it would be likely to be resolved on the merits with regard to the statute and the Constitution?

ALITO: I don't think could answer that without providing sort of an advisory opinion about something that could well come up. If this does come up in litigation, then the courts have an obligation to decide whether it's a justiciable dispute.

The political question doctrine -- this doctrine of issues that are not justiciable -- often involves conflicts between the branches of the government. And when a person is asserting a person's individual rights are violated, that is the type of case that is often resolved -- I mean, typically resolved by the judiciary.

FEINGOLD: Well, Judge, aren't we going to be in kind of a tough spot if we find out the Supreme Court can't help us figure out whether the FISA law is an exclusive authority or not? Isn't that going to be hard to resolve between the executive and the Congress?

ALITO: Well, Senator, when I said in reference to Senator Leahy's question that often disputes between the two branches are resolved without resorting to the courts, I don't think I was referring specifically to this issue.

And if I gave that impression, that was a false impression. I think what I meant to say and what I hope that I did say was that separation of powers disputes in general sometimes fall within this doctrine.

FEINGOLD: Noted a few times today that the questions of the president's power in the wiretapping area and other areas will likely come before the courts, including the Supreme Court. You just did that.

As I understand it, you've prepared for these hearings over the past few months with a variety of practice sessions. Some have called them moot courts or murder boards. Was the question of the president's power in time of war to take action contrary to a federal statute ever raised in any way during any of the practice sessions for these hearings?

ALITO: I have had practice sessions on a great variety of subjects, and I don't know whether that specific issue was brought up. It may have been. But what I can tell you...

FEINGOLD: You don't recall whether this issue...

ALITO: No, the issue of FISA certainly has been something that I have studied, and this is not -- FISA is not something that has come before me as a judge.

FEINGOLD: But you don't recall whether or not this was covered in the practice sessions?

ALITO: No, no, the specific question that you raised about the conflicts between the president's authority to say that a statute enacted by Congress should not be followed. But the general area of wiretapping and foreign intelligence surveillance, wiretapping...


FEINGOLD: ... the recent events that have led to this dispute...

ALITO: And the recent events.

FEINGOLD: ... and the possibility that it may come before you. Right, Judge?

ALITO: That's correct.

FEINGOLD: OK. Who was present at these practice sessions where these questions were discussed? And who gave you feedback or suggestions or made any comment whatsoever on the answers you gave?

ALITO: Nobody at these sessions or at any of the sessions that I had has ever told me what to say in response to any question.

FEINGOLD: I just asked -- were there no comments...

ALITO: The comments that I've received...

FEINGOLD: ... or no advice?

SPECTER: Let him answer the question, Senator Feingold.

ALITO: The advice that I've received has gone generally to familiarizing me with the format of this hearing, which is very different from the format of legal proceedings in which I've participated either as a judge or previously when I was arguing a legal issue as a lawyer.

But nobody has told me what to say. Everything that I've said is an expression of my own ideas.

FEINGOLD: And I don't question that, Judge. I asked you, though, whether anybody gave you any feedback or suggestions or made any comment whatsoever on the answers you gave in the practice sessions.

ALITO: In general? Yes, they've given me feedback, mostly about the form of the question, the form of the answers.

FEINGOLD: Have you received any other advice or suggestions directly or indirectly from anyone in the administration on how you should answer these questions?

ALITO: Not as to the substance of the question. No, Senator.

FEINGOLD: Only as to the style?

ALITO: That's correct; as to the format. Not as to what I should say I think about any of these questions. Absolutely not. I've been a judge for 15 years. And I've made up my own mind during all of that time.

FEINGOLD: Again, I'm not suggesting that.

ALITO: I just want to make that clear

FEINGOLD: I asking whether or not somebody talked about the possible legal bases that the president might assert with regard to the ability to do this wiretapping outside of the FISA statute. Was that kind of a discussion held?

ALITO: Nobody actually told me the bases that the president was asserting. I found the letter that was released last week or the week before by an assistant attorney general setting out arguments relating to this on the Internet myself and printed it out.

And I studied it to get some idea of some of the issues that might be involved here. And I looked at some other materials that legal scholars have put out on this issue. But nobody in the administration actually has briefed me on what the administration's position is with respect to this issue.

FEINGOLD: Does it strike you as being inappropriate for members of the Department of Justice or the White House staff who are currently defending the president's actions in the NSA domestic spying program to be giving you advice on how you might handle questions about that topic in the hearing?

ALITO: It would be very inappropriate for them to tell me what I should say. And I wouldn't have been receptive to that sort of advice. And I did not receive that kind of advice.

FEINGOLD: Thank you, Judge.

I want to come back to Mitchell v. Forsythe which you participated in the Solicitor General's Office. As we've already heard, that case considered the government's argument that President Nixon's attorney general, John Mitchell, should be granted absolute immunity for authorizing warrantless wiretaps.

And you signed the government's brief, making that argument. The Supreme Court rejected the claim of absolute immunity, noting that the attorney general acting in the inherently secretive national security context has few built-in restraints.

Justice White, writing for the court in Mitchell said, quote, "The danger that high federal officials will disregard constitutional rights in their zeal to protect national security is sufficiently real to counsel against affording such officials an absolute immunity," unquote.

Now, that statement still has a lot of relevance today. Doesn't it?

ALITO: Yes, it does. Absolute immunity is quite restricted under our legal system.

But there are some high-ranking officials in all three branches of the government who do have absolute immunity just from civil damages, not from criminal liability or from impeachment or removal from office or for injunctive relief.

They can be ordered to comply with the Constitution. But as far as civil damages are concerned...

FEINGOLD: But when you were you at the Solicitor General's Office, you wrote this memo about the case, saying, quote, "I do not question that the attorney general should have this immunity, quote, "for authorizing warrant-less wiretap."

Why did you not question the attorney general's absolute immunity?

ALITO: First of all, because it was the position that our client, whom we represented in an individual capacity -- and it was his money that was at stake here -- wanted to make.

So, we had an obligation that was somewhat akin to the obligation of a private attorney representing a client.

Secondly, it was an argument to which the department was committed. It had been made in Kissinger v. Halperin in the Carter administration. It was repeated in Harlow v. Fitzgerald in the Reagan administration.

In Harlow v. Fitzgerald, the Supreme Court, while rejecting the idea that cabinet officers in general should have absolute immunity from civil damages, had said something like -- and I'm not going to be able to provide an exact quote, but something like -- but the situation could well be different for people who were involved in sensitive national security matters or foreign matters.

FEINGOLD: OK, but you said in your memo, quote, "I do not question the attorney general's absolute immunity." You did not quote it as the position of our office or, as you were just saying, this administration has argued this in the past.

You, in effect, injected yourself into the statement. Clearly, you were expressing your personal opinion on this legal issue, were you not?

ALITO: Senator, I actually don't think I was expressing a personal opinion.

I was saying that in my capacity as the writer of this memo who was recommending that the argument not be made even though it was one that our client wanted to have made, I wasn't disputing the general argument to which the department was committed.

But I thought that we should take a different approach, that we should just argue the issue of appealability. But that was not the approach that was taken.

FEINGOLD: Let's go on to the solicitor general's brief in the Mitchell case, which you signed.

That brief argues strongly for the need for absolute immunity, arguing that it is far more important to give the attorney general as much latitude as possible in the national security context than to, as the brief puts it, quote, "defer the occasional malevolent official," unquote, from violating the law.

Now, I find this statement particularly troubling today in light of the current administration's warrant-less wiretapping in the name of national security. Do you agree with that statement in the brief, that broad deference is warranted even if some attorneys general may abuse their power?

ALITO: I think the issue of the scope of the immunity that the attorney general has is now settled by Mitchell v. Forsythe. And that's the law. It was considered -- the argument was considered by the Supreme Court and they decided the question.

There are -- judges have absolute immunity for their judicial decisions. Members of Congress and their staff have absolute immunity for things that they do that are integral to the legislative process. The president has absolute immunity from civil damages for the president's official acts.

But absolute immunity is used very sparingly because of just the considerations that you're referring to.

But the consideration on the other side is that people who are involved in lots of things that make other people angry, judges deciding cases, members of Congress passing legislation, presidents doing all sorts of things, would otherwise be subjected to the threat of so many political reprisals that they would be driven from office. And it's a policy judgment that our law has made that some people should have absolute immunity, but it's used very sparingly.

FEINGOLD: And I find your comments interesting because, of course, the argument is often fairly made that after 9/11 we have to recognize the important role that our executive plays in protecting the American people.

But I would also argue that it is a particularly compelling time to make sure there isn't undue deference given the types of powers that the executive may seek to use in trying to fight this threat.

In your class notes from a seminar you gave at Pepperdine Law School on civil liberties in times of emergency, you repeatedly raise the question of whether the judiciary has the capability to review certain types of determinations made by the executive branch in national security cases and particularly factual issues.

And We've recently seen an example of a court evidently expressing its frustration in a national security case when the facts presented to it by the executive, which it had accepted, apparently did not hold up.

And of course I'm talking about the 4th Circuit's serious concern it hadn't been told that Jose Padilla needed to be held militarily as an enemy combatant because he had plotted to use a dirty bomb in the United States and then finding out that three and a half years later the Justice Department wanted to transfer him to law enforcement authorities to stand trial for entirely different and much less serious crimes.

In Padilla, the 4th Circuit was originally willing to defer to the executive's assertion that it needed to hold Padilla militarily, but was quite upset -- and justifiably, I think -- to find out that it might not have deserved such deference. And I'm not going it ask you about that case because I know that case is coming before the Supreme Court.

But I do want you to say something about the role of the judiciary in evaluating the facts presented to it in national security cases by the executive branch.

How does a court decide whether to rely on the facts presented to it by the executive in a national security case?

ALITO: What I was doing in that talk at Pepperdine was framing that question. And it's a lot easier to frame the question and to ask students to think about it and give me their reactions than it is to answer it.

We've had examples of instance in which the judiciary in the past has had to confront this issue of reviewing factual presentations of the executive in times of national crisis. And there have been instances in which the judiciary has accepted -- and I'm thinking of the Japanese internment cases -- has accepted, which were one of the great constitutional tragedies that our country has experienced -- has accepted factual presentations by the political -- by the executive branch that turned out not to be true and from my reading of what went on were not believed to be true by some high-ranking executive officials at the time.

But there is the problem of judicial fact-finding, which I was talking about earlier, and the context of things that may be taking place on the battlefield, for example, or things that are taking place in wartime probably are more difficult for the judiciary to evaluate than other factual questions.

So that's the dilemma. And I can't say that I can provide a clear answer to it.

FEINGOLD: I do appreciate your reference in the Koramatsu to a case and the problem there and how this is going to become an even more serious issue.

I'm going to switch to something else, the matter of the Vanguard case and the recusal. That has been characterized today as a nonissue. One senator said it's a joke. It's ridiculous. Another one said it's absurd, just plain absurd. And another -- same senator said it was a blatant tactic to torpedo your nomination.

Well, Judge, I was the senator that asked Judge Roberts very searching questions about whether or not he should have recused himself in the Hamdan case. And I'm sure he didn't enjoy it. I didn't particularly enjoy asking the questions. But in the end, I voted for him.

So let me just say to my colleagues, I reject this idea that when we come here to do our job of examining a nominee, that asking questions about an ethical issue is somehow a political game or an attempt to torpedo a nomination.

This idea of insulating yourselves and insulating the nominee before we've even asked questions about a subject really is not conducive to the kind of process that this chairman and this ranking member have made possible on the first nomination and this one as well.

So I think this is our job. And I ask you these questions in the spirit.

And I might add that although my time is limited that, when you hear the actual facts of it, whatever conclusion we draw, it's certainly not a trivial matter. It's something that I think we ought to cover.

So let me begin by following up on Senator Kennedy's question regarding the promise you made to the committee. In 1990, in your Senate questionnaire at the time of your nomination to the 3rd Circuit, you were asked how would you handle potential conflicts of interest.

You told the committee that you did not believe conflicts of interest relating to your financial interests were likely to arise. Nevertheless, you wrote, quote, "I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney or the First Federal Savings & Loan of Rochester, New York," unquote.

You also wrote that you would disqualify yourself from any case involving your sister's law firm and from any case in which you participated or that was under your supervision in the United States attorney's office.

Now, whether or not such recusals are required under the federal recusal law, your statement to the commitment was clear, unambiguous and not time limited. And I think for that reason alone, it is more than legitimate to ask some questions in front of this committee about this.

This morning, Senator Hatch read from a letter from the ABA, apparently received yesterday, although we did not see it until today. That letter talked about what you told the ABA when asked about Vanguard and the other ethics issues.

You also answered a number of questions from Senator Hatch about the case.

But your responses to both the ABA, as far as we can tell from the letter, and Senator Hatch did not say anything at all about your promise to this committee.

Instead, you responded by saying that you didn't notice the recusal issue because you did not get so-called clearance sheets in this case, because it was a pro se case and that you didn't, quote, "focus on the issue of recusal."

You also didn't mention something that the clerk of your court told us in a letter, that all judges have standing recusal lists that all cases, all cases, both pro se cases and cases where the parties are represented by counsel, are checked against before they are sent to judges.

So my first question is this: After you were sworn in as judge, did you notify the court of your commitments to the Senate and request that the Vanguard companies, Smith Barney and First Federal Savings & Loan be included on your standing list of priorities whose involvement in a case would require your recusal?

ALITO: Senator, I don't have a copy of the initial computer list, so I can't answer that question.

At some point, Vanguard -- the computer lists that are available from, I think, 1992 and 1993 do not have Vanguard on it and I don't know why that is so.

FEINGOLD: So you don't recall whether you notified them or not?

ALITO: I do not. No.


Judge, we know you notified the clerk in 1990 that the U.S. attorney's office and your sister's law firm should be on your standing recusal list because you recused yourself from a number of such cases in the first several years you were on the bench.

And we also finally received additional documents just yesterday from the court. These documents show that the Vanguard companies and the other financial entities you listed in 1990 were not on your standing recusal list, which you approved in 1993, 1994, 1995 or 1996.

Do you remember removing them from your standing recusal list or is it fair to assume -- or is it your belief that they were never put on your recusal list?

ALITO: Senator, I don't know.

I don't know whether they were removed. I don't think I ever told the clerk's office: Take them off. It may be that at some point I submitted a new list and they were not on the list.

I do think it's important to keep in mind that this list is just an aid for the judge. This is not a comprehensive list of everything that will cause a judge to recuse.

FEINGOLD: I understand. I just want to get the facts down.

So to be clear on the facts, there's no evidence that you requested that Vanguard appear on your standing recusal list before 2003 when you informed the clerk that Vanguard and apparently also Smith Barney should be added, and you don't have any independent recollection of adding them to the list before then either. That's correct, isn't it?

ALITO: That's correct.

FEINGOLD: You explained to the ABA that the problem in these cases was that the conflict screen system was not working in these cases. And you told Senator Kennedy and Senator Hatch this morning that there were some oversights in this case.

And you wrote in a November 10th letter to Senator Specter: Due to an oversight it did not occur to you that Vanguard's status might call for your recusal. But it seems that the problem was not that the screening program was not working or that there was a computer glitch, as you and the White House originally suggested, but either that Vanguard was not on your recusal list and you didn't remember your promise or that you did not recognize that Vanguard was a party in the case. Now, isn't that a fair characterization?

ALITO: Well, there was an oversight. And the oversight was on my part in not focusing on the issue of recusal when I first received the case.

FEINGOLD: So there wasn't -- so the problem really -- you can admit now, can't you, that this was not a computer glitch or a failure of the screening system? You're really saying something very different at this point.

ALITO: I'm not saying something different as to the screening system. The screening system was exactly what I described this morning. And I described that to the ABA.

FEINGOLD: But you don't think it was a computer glitch anymore, do you?

ALITO: It was not a computer glitch. And if I could just explain, the origin of that was that, when I was down here shortly after the president announced his intention to nominate me, I started to receive questions about this Vanguard issue.

And I was receiving information from our clerk's office. And, based on the information that I received, it was my impression that there had been a computer glitch. And that was the origin of that statement. And that information that I...

FEINGOLD: Let me ask you this in my last few seconds. When you wrote to Judge Scirica indicating that would you recuse yourself from the Monga v. Ottenberg case, why did you feel the need to argue that you weren't in fact, required to do so?

Why not just admit you made a mistake, agree to recuse and move on? Why didn't you just do that when the issue was raised here, instead of coming up with these different explanations that, in some cases, I think, have become unconvincing?

ALITO: Well, Senator, when the recusal motion came in, I was disturbed by it and I wanted to see what the code of conduct exactly required in this context.

Twelve years had gone by. And no Vanguard case had come up and I hadn't had an occasion to look at this issue. And when I looked at it -- and the recusal motion was very harsh and it accused me of unethical conduct. And I took it seriously. And I wanted to see what the code required.

And I researched it and it was my conclusion that I was not required by the code to recuse.

But then I want on and said, "But I still don't want to participate in this case, and I would like to have the initial decision vacated and make sure that Ms. Maharaj had an entirely new appeal." And that's what I -- that's what I asked for and that's what was done.

BLITZER: All right. We're going to break away from the hearing momentarily. We're going to go right back to it. We want to take a quick commercial break, want to check all the day's other news as well.

The confirmation hearings of Samuel Alito continue on Capitol Hill.



BLITZER: We're going to go back to the Senate confirmation hearings of Samuel Alito for the U.S. Supreme Court momentarily, but let's get another quick check of what's making news right now.

CNN's Zain Verjee is standing by at the CNN Center -- Zain.

VERJEE: Wolf, the "Christian Science Monitor" is confirming that an American journalist working for the newspaper has been kidnapped in Iraq. According to a statement from the paper, gunmen abducted Jill Carroll after ambushing her car and killing her interpreter on Saturday. It took place in one of the most dangerous parts of Baghdad.

A journalist advocacy group says 36 journalists have been abducted in Iraq since the beginning of the war.

In Saudi Arabia today, tens of thousands of Muslim pilgrims streamed into a valley east of Mecca for a ceremonial stoning of Satan. There are more than two million pilgrims in total. It's the final rite in the annual pilgrimage known as the Hajj.

Some of those people are taking part in the six-day ritual. Every able-bodied Muslim is required to make the pilgrimage to Mecca at least once in their life.

Americans with medical emergencies are increasingly at risk of not getting the life-saving care they need. That's according to a new report on the nation's emergency health care system. The system received an overall grade of C-. The highest ratings went to California, Connecticut, Massachusetts and the District of Columbia. Utah, Idaho and Arkansas were at the bottom of the list.

GM is cutting the sticker price on many of its best-selling vehicles by as much as $2,500 -- analysts saying that it's all part of an effort to recapture business lost to competitors from Asia and elsewhere. GM says that the price cuts affect vehicles that account for about 80 percent of its sales -- Wolf.

BLITZER: Zain, thank you very much. We will get back to you soon.

Let's go back to the hearings, the Senate Judiciary Committee.

Senator Lindsey Graham, Republican of South Carolina, is questioning Samuel Alito -- the issue right now, the aftermath of 9/11.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: ... during a time of war to protect our country from being infiltrated by foreign powers and bodies who wish to do harm to us. That's a totally different legal concept. Is that correct?

ALITO: I'm reluctant to get into this because I think things like act of war can well have particular legal meanings in particular context, under the Constitution...

GRAHAM: Do you doubt that our nation has been in an armed conflict with terrorist organizations since 9/11, that we've been in an undeclared state of war?

ALITO: In a lay sense, certainly, we've been in a conflict with terrorist organizations. I'm just concerned that, in the law, all of these phrases can have particular meanings that are defined by the cases and are...

GRAHAM: That's very important. And let's have a continuing legal education seminar here about the law of armed conflict in the Hamdi case.

The Hamdi case is precedent, is that correct?

ALITO: It certainly is.

GRAHAM: It's a decision of the Supreme Court. And it tells us at least two to three things. Number one, it tells us something that I find reassuring; that the Bill of Rights, the Constitution, survive even in a time of war.

ALITO: That is certainly true.

GRAHAM: So, there's a holding in that case that I want to associate myself with, and I think Senator Feingold does; that, even during a time of war when your values are threatened by an enemy who does not adhere to those values, they will not be threatened by your government unless there's a good reason. Do you agree with that, sir?

ALITO: Senator, I agree that the constitution was meant to deal with all of the contingencies that our country was going to face.

I think the framers hoped that we would not get involved in many wars but they were students of history and I'm sure they realized that there would be wars. They provided for war powers for the president and for Congress. And the structure is meant to apply both in peace and in war.

GRAHAM: And you said in your previous testimony that no political figure in this country is above the law, even in a time of war.

ALITO: That is correct.

GRAHAM: OK. There's another aspect of the Hamdi case that no one's picked up on, but I will read to you: "In light of these principles, it is of no moment that the authorization to use military force does not use specific language of detention because detention to prevent a combatant's return to the battlefield is a fundamental instant of waging war."

In permitting the use of necessary and appropriate force, Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

And those circumstances were a person alleged by the executive branch to be an enemy combatant. And one of the principles we found from the Hamdi case that because we are, in my opinion, at war and Congress has authorized the president to use force against our enemies, the executive branch, according to the Hamdi case, inherent to his power of being commander in chief, can detain people who have been caught on the battlefield.

Does that make sense to you? Do you agree that's a principle of the Hamdi case?

ALITO: That is a principle of the Hamdi case.

GRAHAM: And it makes perfect sense. Because if we catch someone in Afghanistan or Iraq or any other place in the world who is committing acts of violence against our troops or our forces, or we catch people here in the United States who have infiltrated our country for the purpose of sabotaging our nation, there is no requirement in the law to catch and release these people. Is there?

ALITO: Well, Hamdi speaks to the situation of an individual who was caught on the battlefield...

GRAHAM: In the history of our nation, when we captured German and Japanese prisoners, was there ever a legal requirement anybody advanced that after a specific period of time you have to let them go?

ALITO: It's my understanding that the prisoners of war who were taken in World War II were held until the conflict was over.

GRAHAM: It would be an absurd conclusion for a court or anyone else to tell the executive branch that if you caught somebody legitimately engaged in hostile activities against the United States that you have to let them go and go back and fight us again. That makes no sense; does it?

ALITO: Well, I explained what my understanding is about how this matter of holding prisoners was handled in prior wars. This issue was addressed in Hamdi, or it was discussed in Hamdi in the context...

GRAHAM: In the Padilla case they held an American citizen who was engaged in hostile activities against the United States, allegedly, as an enemy combatant.

And the 4th Circuit said the president, during a time of hostility, has the ability to do that. Do you agree that that's a part of our jurisprudence?

ALITO: That was -- the holding in Padilla?


ALITO: Yes. That was the holding of the lower court -- of Padilla, yes.

GRAHAM: The point I'm trying to make is that when you're engaged in hostilities there are some things that we assume the president will do.

If we don't kill the enemy, we capture the enemy. The president as the commander in chief will make sure they don't go back to the battle. Number two, that if we catch someone and there's a question to their status whether or not you're a prisoner of war in the Geneva Convention, are you an enemy combatant, who traditionally in our constitutional democracy determines whether or not the status of a person engaged in hostilities?

ALITO: Well, Padilla -- I'm sorry, Hamdi said that a person who was being detained, an unlawful person who's asserted to be an unlawful combatant and who is being detained has due process rights. And the issue of the type of tribunal -- and they explained to some degree how that would be handled.

But the identity of the particular tribunal that would be required to adjudicate that was not an issue that was decided in Hamdi or any of the other cases.

GRAHAM: Can you show me an example in American jurisprudence where the question of status, whether a person was a lawful combatant or an unlawful combatant, was decided by a court and not the military?

ALITO: I can't think of an example. I can't say that I am able to survey the whole history of this issue, but I...


GRAHAM: Can you show me in a case in American jurisprudence where an enemy prisoner held by our military was allowed to bring a lawsuit against our own military regarding their detention?

ALITO: I am not aware of such a case.

GRAHAM: Is there a constitutional right for a foreign, noncitizen enemy prisoner to have access to our courts to sue regarding their condition of the confinement under our Constitution?

ALITO: Well, I'm not aware of a precedent that addresses the issue.

GRAHAM: Do you know of any case where an enemy prisoner of war brought a habeas petition in World War II objecting to be their confinement to our federal judiciary?

ALITO: There may have been a lower court case. I'm trying to remember the exact status of the individual.

GRAHAM: Let me help you. There were two cases. One of them involved six saboteurs, the in re Quirin case. Would you agree with me that that case stood for the proposition that in a time of war or declared hostilities an illegal combatant, even though they may be an American citizen, the proper forum for them to be tried in is a military tribunal and they're not entitled to a jury trial as an American citizen in a non-wartime environment?

ALITO: Well, those were a number of German saboteurs who landed by submarine in the United States. And they were taken into custody. And they were tried before a military tribunal.

And the case went up to the Supreme Court. The Supreme Court sustained their being tried before a military tribunal. At least one of them claimed to be an American citizen. And most of them, I think all but one or two, actually were executed.

GRAHAM: And our Supreme Court said that is the proper forum during a war-time environment to try people who were engaged in a legal combat activities against our country. Is that correct?

ALITO: They sustained what was done under the circumstances.

GRAHAM: That would be a precedent then, wouldn't it?

ALITO: It is a precedent. Yes.


There was a case involving six Germans, soldiers, captured in Japan and transferred to Germany, and they brought a habeas petition to be released in the -- I can't remember the ...

ALITO: Eisentrager.

GRAHAM: You know it. Tell me what the court decided there.

ALITO: They were, as I recall, they were Germans who were found in China...

GRAHAM: China. You're right

ALITO: ... assisting the Japanese after termination of the war with Germany. And they were unsuccessful in their habeas petition. That was interpreted, prior to the Supreme Court's decision a couple of years ago, to mean that there was a lack of habeas jurisdiction over them because they were being held in territory that was not U.S. territory.

GRAHAM: For those who are watching who are not lawyers, generally speaking, in all of the wars that we've been involved in we don't let the people trying to kill us sue us. Right? And we're not going to let them go at an arbitrary time period if we think they're still dangerous because we don't want to go have to shoot at them again or let them shoot at us again.

Is that a good summary of the law of armed conflict?

ALITO: I don't know whether I'd put it quite that broadly, Senator.


The precedent that you -- the Johnson v. Eisentrager, of course, has been substantially modified, if not overruled. Ex Parte Quirin, of course, is still a precedent.

There was a lower precedent involving someone who fought with the Italian army. And I can't remember the exact name of it. And that was the case that I thought you were referring to when you first framed the question.

But those are the precedents in the area. Then, if you go back to the Civil War, there's Ex Parte Milligan and a few others.

GRAHAM: We don't have to go back that far.


ALITO: Well, in this area...

GRAHAM: Well...

ALITO: ... it's actually instructive to do it.

But in Hamdi the court addressed this question of how long the detention should take place. And they said -- because they were responding to the argument that this situation is not like the wars of the past which had a more or less fixed -- it was not anticipated that they would go on for a generation. And they said: We'll get to that if it develops that way.

GRAHAM: Who is better able to determine if an enemy combatant properly held has ongoing intelligence value to our country? Is it the military or a judge?

ALITO: On intelligence matters I would think that is an issue -- that is an area where the judiciary doesn't have expertise. But we do get into this issue I was discussing with Senator Feingold about the degree to which the balance between the judiciary's performing its function in cases involving individual rights and its desire not to intrude into areas where it lacks expertise, particularly in times of war and national crisis.

GRAHAM: So, having said that, if we have a decision to make as a country when to let someone go who's an enemy combatant, I guess we've got two choices.

We can have court cases or we can allow the military to make a determination if that person still presents a threat to the United States and whether or not that person has an intelligence value by further confinement.

Do you feel the courts possess the capabilities and the confidence to make those two decisions better than the military?

ALITO: The courts do not have expertise in foreign affairs or in military affairs. And they certainly should recognize that. And that is one powerful consideration in addressing legal issues that may come up in this context.

But there is the other powerful consideration that it is the responsibility of the courts to protect individual rights in cases that are properly before the court, cases where they have jurisdiction in one way or another, cases that are fit for judicial resolution.

GRAHAM: I totally understand that. But our courts have not, by tradition, gotten involved in running military jails during a time of war.

I can't think of one time where a prisoner of war housed in the United States during World War II, a German Nazi or a Japanese prisoner, was able to go and sue our own troops about their confinement.

I think there's a reason there's none of those cases. It would lead to chaos. Now, when it comes to treating detainees and how to treat them, I think the Congress has a big role to play. And I think that the courts have a big role to play. Are you familiar with the Geneva Convention?

ALITO: I have some familiarity with it. I'm...

GRAHAM: Do you believe it's been good for our country to be a signatory to that convention?

ALITO: I think it has. But that's not really my area of authority. That's Congress' area of authority.

GRAHAM: Well, just as an American citizen, are you proud of the fact that your country has signed up the Geneva Convention and that we have laid out a system of how we treat people who fall into our hands and how we'll engage in war?

ALITO: I think the Geneva Convention -- and I'm not an expert on the Geneva Conventions -- but I think they express some very deep values of the American people. And we've been a signatory of them for some time. And I think that...

GRAHAM: Now, let's go back to the legal application of the Geneva Convention.

If someone was captured by an American force and detained either at home or abroad, would the Geneva Convention give that detainee a private cause of action against the United States government?

ALITO: Well, that's an issue I believe in the Hamdan case, which is an actual case that's before the Supreme Court. And it goes to the question of whether a treaty is self-executing or not. Some treaties are self-executing...

GRAHAM: Has there ever been an occasion in all the wars we fought where the Geneva Convention was involved whether the courts treated the Geneva Convention as a private cause of action to bring a lawsuit against our own troops?

ALITO: I'm not familiar with such a case. But I can't say whether there might be some case or not.

GRAHAM: Now, when it comes to what authority the executive has during a time of war, we know the Supreme Court has said it's implicit from the force resolution that you can detain people captured on the battlefield. Hamdi stands for that proposition. Is that correct?

ALITO: That's what was involved in Hamdi.

GRAHAM: OK. The problem that Senator Feingold has and I have and some of the rest of us have is does that force resolution, does it have the legal effect of creating an exception to the FISA Court?

And I know that may come before you, but let's talk about generally how the law works.

You say that the president has to follow every statute on the books unless the statute allows an exception for the president. Is that a fair statement? Just being president, you can't set aside the law.

ALITO: The president has to follow the law, and that means the Constitution and the laws that are enacted consistent with the Constitution.

GRAHAM: There's a statute that we have on the books against torture. Are you familiar with that statute? ALITO: Convention against torture, I am. Well, the statutes implementing the convention against torture.

GRAHAM: And the statute provides the death penalty for somebody who violates the conventions as a possible punishment.

ALITO: That's right.

If death results, the death penalty is available.

GRAHAM: So this idea that Senator McCain somehow banned torture is not quite right. The convention on torture and the statute that we have implementing that convention were on the books long before this year. Is that correct?

ALITO: Yes, they were.

GRAHAM: Do you believe that any president, because we're at war, could say, the statute on torture gets in the way of my ability to defend the United States; therefore I don't have to comply with it?

ALITO: The president has to comply with the Constitution and the laws of the United States that are enacted consistent with the Constitution. That is the principle.

The president is not above the Constitution and the laws. Now, there are issues about the interpretation of the laws and the interpretation of the Constitution.

GRAHAM: Are you a strict constructionist?

ALITO: I think it depends on what you mean by that phrase. And if you...

GRAHAM: Well, let's forget that. We'll never get to the end of that.


Have you heard the term used?

ALITO: I have heard the term used.

GRAHAM: Is it fair to say that, when it's used by politicians, people like me, that we're trying to tell the public we want a judge who looks at things very narrowly, that doesn't make a bunch of stuff up?

Is that a fair understanding of what a strict constructionist may be in the political world?

ALITO: Well, if a strict constructionist is a judge who doesn't make things up, than I'm a strict constructionist.


GRAHAM: There you go.

ALITO: I agree with that, Senator.


GRAHAM: Now, if there's a force resolution that Congress passes to allow any president to engage in military activity against someone trying to do us harm and the force resolution says, "The president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines, planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001" -- or just make it generic -- if someone argued that that declaration by Congress was a blanket exemption to the warrant requirement under FISA, would that be a product of strict constructionist legal reasoning?

ALITO: I think that a strict constructionist as you understand it would engage in a certain process in evaluating that question. And a strict constructionist, a person who interprets the law -- that's how I would put it -- a person who interprets the law would look at the language of the authorization for the use of military force and legislative history that was informative, maybe past practices. Were there prior enactments that are analogous to that? What was the understanding of those? And a host of other considerations that might go into the interpretive process.

GRAHAM: I guess what I'm saying, Judge, is I can understand why the court ruled that the president has within his authority to detain people on the battlefield under this force resolution. That makes sense. I understand why the president believes he has the ability to surveil the enemy at a time of war.

And the idea that our president or this administration took the law in their own hands and ignored precedent of other presidents or case law and just tried to make a power grab, I don't agree with.

But this is really not about you, so you don't have to listen. I'm talking to other people right now.


The point I'm trying to make -- the point I'm trying to make is what Justice Jackson made, is that, when it comes to issues like this, when we surveil our enemy and we've cross the our own borders and we have information about our own people, we need, in my opinion, Judge, to have the president at the strongest. And that would be when Congress, through collaboration with the president, comes up with a method of dealing with that situation.

And then it could be very dangerous in the long run if we over- interpret war resolutions. Because I've got a problem with that. And I believe that if we don't watch it and we over-interpret these resolutions, that we will have a chilling effect for the next president.

The next president who wants to use force to protect us in a justifiable manner may be less likely to get that resolution approved if we go too far.

And Judge, you're likely to rule on these issues. And my hope is, before you rule, that we all sit down between the executive and the legislative and we talk about this, because, as you said before, our nation, not only our legal system, is strongest when we work together.

Executive power: The Constitution allows the president to nominate judges. If Congress tried to change that by statute and say that we would like to pick the judges, what would happen, hypothetically?

ALITO: I have a certain amount of self-interest in the answer to that question.

GRAHAM: Yes, I thought you might, yes.

Clearly, clearly, the statute would fall under the Constitution. A veto is not reviewable by courts because that's a basically political decision.

Under the Constitution, what's the vote requirement to get confirmed to the Supreme Court?

ALITO: It's a majority.

GRAHAM: Hypothetically speaking, what if the Senate passed a statute or had a rule that said you can't get a vote to be on the Supreme Court unless you get 60 votes? How does that sit with you?

ALITO: Speaking in my personal capacity or my judicial capacity?

GRAHAM: Your judicial capacity.

ALITO: Senator, I just don't think I should answer questions like -- constitutional questions like that.

GRAHAM: What if the Senate said during impeachment that we don't want a two-thirds vote of the Senate; we want a majority vote? Would the Senate's action fall under the Constitution?

ALITO: There are certain questions that seem perfectly clear. And I guess there's no harm in answering...

GRAHAM: Is there any doubt in your mind the Constitution requires a majority vote to be on the Supreme Court or any other federal judicial office?

ALITO: You know what? I remember this phrase from law school...

GRAHAM: Is that a super-duper precedent?


ALITO: I think it's what we call in law school the slippery slope, and if you start answering the easy questions, you're going to be sliding down the ski run into the hard questions. And that's what I'm not too happy to do.

GRAHAM: That's what I tried to get to you do and I'm glad you didn't do it.


The bottom line through this exercise is: You've got a job. I've got a job. And what disturbs me a bit is that we're beginning to hold the lawyer responsible for the client.

And in my remaining time here, what damage could be done to the legal profession or judiciary if people in my profession start holding your clients' position against the advocate?

ALITO: I think it's been traditionally recognized that lawyers have an obligation to their clients. That's how our legal system works. Some lawyers have private clients. Some lawyers work for government agencies and the lawyer-client relationship there is not exactly the same. But still there is a lawyer-client relationship.

And I think our whole system is based on the idea that justice is best served...

GRAHAM: If you were an attorney general representing a state that passed a ban on partial-birth abortion, would it be fair to that attorney general if they came before this committee to hold that against them if you disagreed with them on the subject matter?

ALITO: I think that attorneys general -- I can speak to the issue of the attorney general of the United States because I know there's a statute and there's an understanding about what the attorney general of the United States will do when an act of Congress is called into question. And the obligation of the attorney general is to defend the constitutionality of the act of Congress...


GRAHAM: Lawyers' obligation is to defend their clients' interest. Is that an accurate statement of what a lawyer is supposed to do?

ALITO: It certainly is, yes.

GRAHAM: No matter where that client is popular or not or the position is popular or not. Is that correct?

ALITO: Consistent with ethical obligations and professional responsibility, yes, indeed.

GRAHAM: What's this process been like for you and your family? In a short period of time, could you tell us how to improve it?

ALITO: Well, it's been a combination -- at times it's been a thrill and at times it's been extremely disorienting. I've spent the last 15 years as a judge on the court of appeals. And you probably could not think of a more cloistered existence than a judge on the court of appeals.

Most of the time nobody other than the parties pays attention to what we do. When an article is written in the paper about one of our decisions, it's a federal appeals court in Philadelphia or in whatever city.

And this has been a strange process for me. I made some reference to that yesterday.

But I understand the reason for it. And I am reluctant in my current capacity as a nominee to offer any suggestions about the process. I think that you're carrying out your responsibility. I spoke about the fact that different people under the Constitution have different obligations. And you have the advice and consent function, Congress -- the Senate does. And I think it's for the Senate to decide what it should do in this area.

SPECTER: Thank you, Senator Graham.

BLITZER: All right. We're going to break away from the hearings.

Let's go up to New York. Jack Cafferty has been going through your e-mails.

Jack, what do our viewers think?

CAFFERTY: We asked if they would -- based on the stuff they heard Judge Alito saying today, if they would trust him to do the right thing when it comes to Roe v. Wade.

Jan in Brunswick, Georgia, says: "As a decided LIBERAL -- capital letters intended -- I wish the Democrats in Congress would sit down and shut up. First, who better do we expect this president to nominate? Given a third shot at this Supreme Court vacancy. We might get Ashcroft or DeLay."

Matthew in Brantford, Ontario: "In terms of Roe v. Wade, I trust Alito will do the right thing. The solution to Roe v. Wade is not a complete overturn, but to gradually ban abortion. A sudden overturn would cause chaos and backlash. Fortunately, Alito seems to have the right idea."

And, very quickly, Dottie writes in Greenville, South Carolina: "No more than I trust any man who says, absolutely no cost, absolutely no calories, or, let's just lie down across the bed and watch TV."

BLITZER: All right. Thanks...



BLITZER: Thanks very much, Jack. We will see you in one hour back here in THE SITUATION ROOM. That's it for this hour.

Lou Dobbs getting ready to pick up our coverage -- Lou.


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