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Senators Launch 2nd Round of Questioning in Alito Confirmation Hearings

Aired January 11, 2006 - 09:27   ET


WOLF BLITZER, CNN ANCHOR: About 30 minutes of questioning from Dick Durbin, a couple Republicans, then they start round two, 20 minutes of questioning for each member. Eighteen members of the Senate Judiciary Committee, 10 Republicans, eight Democrats, and then we'll see where we go from here.
So far, Alito is doing quite well. We'll see how he does today.

M. O'BRIEN: All right, Wolf. It's kind of fun to be in the Brady Bunch wall there. I like that. And thank you very much.

And as a matter of fact...

S. O'BRIEN: We were literally in "THE SITUATION ROOM."

M. O'BRIEN: We were in "THE SITUATION ROOM." I feel honored.


M. O'BRIEN: And that's all the time we have for AMERICAN MORNING.

Let's get right back to Wolf and "THE SITUATION ROOM" and the hearings -- Wolf.

BLITZER: Thanks very much, guys.

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 the Samuel Alito confirmation hearings.

It's just before 9:30 here in Washington, and Judge Alito is bracing for a second day of questioning and sparring with senators. Will the Supreme Court nominee give skeptics any new answers or ammunition?

Some Democrats are delivering an early verdict on Alito's performance. They say his testimony has been too vague and even contradictory.

We'll be watching as the judge tries again to make his case in the hours ahead.

Plus, President Bush presses his case for the mission in Iraq with an eye toward election results there and here.

I'm Wolf Blitzer. You're in THE SITUATION ROOM.

Judge Samuel Alito's marathon job interview is about to continue. If he left some Democrats less than impressed yesterday, many Republicans say the Supreme Court nominee appears to be on track for confirmation. But more tests and possibilities for gaps lie ahead.

Let's bring in our national correspondent, Bob Franken. He's joining us from the hearing room with a little bit of a preview -- Bob.

FRANKEN: Well, in the window behind me you see the hearing room with Samuel Alito, the same person you see in the window behind you, Wolf, in THE SITUATION ROOM. He is there for the second round of questioning. He has to feel pretty good about the way that he was able to deflect the various questions that came from Democrats yesterday. There was little harm done to him, which to be very blunt about it, is what the Democrats would like to be able to do.

Now, as you pointed out a moment ago, there is going to be a completion of this first round. Then we are going to get to what I suspect we could call the desperation round. It's going to be the one where Democrats get to take their last shots, asking the questions that have already been asked, trying to come up with something new.

And this is the round you sometimes find a surprise, and of course it's going to have to be a huge surprise, apparently, to knock Samuel Alito off of his game, and to knock his team around him, in a position where they have to worry about his being confirmed by the Senate -- Wolf.

BLITZER: And, Bob, this is day two, how many more days do they anticipate that Alito specifically -- and we him now sitting behind the table there. How many more days will he be testifying?

FRANKEN: Well, we're thinking that it's going to happen today. Maybe we'll slop over into tomorrow before they have panels for and against Samuel Alito. Now it's time to begin the hearing.

U.S. SENATOR ARLEN SPECTER (R-PA), CHAIRMAN: The Judiciary Committee will now proceed with the confirmation hearing for Judge Alito for the Supreme Court of the United States.

Welcome back, Judge Alito.

We have three members who have not had their first round of questioning, 30 minutes. We will proceed there. And then we will have a second round of questioning for 20 minutes each.

I expect we'll need to work a long day today. It's my hope that we might finish the questioning of Judge Alito. That might be overly optimistic. We will see how things go.

Senator Durbin, you're recognized for 30 minutes.

U.S. SENATOR RICHARD J. DURBIN (D-IL): Thank you very much, Mr. Chairman.

U.S. SENATOR PATRICK J. LEAHY (D-VT), RANKING MEMBER: Before we start the clock on Senator Durbin, if I might -- some questions.

One, I admire the stamina of both the nominee and his family. But a number of us have been troubled by what we see as inconsistencies in some of the answers, and we're going to want to go into those in some depth: on the issue of one person, one vote; Vanguard recusal; unitary theory of government; CAP; and so on.

I want to clear up in my own mind and the mind of many over here what we see as inconsistencies. I know many have announced up here exactly how they're going to vote before they even asked questions. I'm one of the one I make up my mind after asking the questions, so there will be a number more.

SPECTER: Well, thank you, Senator Leahy.

I appreciate the comment.

There are many issues. Judge Alito has responded for seven and a half hours so far, and we're going to have another hour and a half on opening statements and then with each senator having 20 minutes on a second round there are six more hours.

So we'll see if he has covered the waterfront. And this will be a full and fair hearing. We will give every opportunity to ask the questions.

LEAHY: Mr. Chairman, with you as chairman, I know it will be a full and fair hearing. And that's one thing that every single Democrat on this side is aware of.

SPECTER: Well, I think that's very important for the nominee, for the committee and for the country. And we will do that.

The adjunct to full, fair is dignified, and I think so far we're on track.

OK, Senator Durbin, keep us on track.

Senator Durbin's recognized for -- we'll restart the clock at 30 minutes.

DURBIN: Thank you, very much, Mr. Chairman.

Judge Alito, thank you for coming for the second day and not quite the end of the first round. I thank your family for their patience, listening to all of our questions. And I hope at the end of the day, we'll feel that we've really added something to the process of choosing a person to serve in a lifetime appointment to the highest court in our land.

I listened to you carefully yesterday address an issue which is very important to me, the Griswold case, because I think that it's a starting point for me when it comes to appointments to the Supreme Court.

If I had any doubt in my mind that a Supreme Court nominee recognized the basic right of privacy of American citizens, as articulated in Griswold, I couldn't support the nominee.

And I listened as you explained that you supported that right of privacy and that you found the Griswold decision grounded in the Fifth Amendment as well as the 11th Amendment. I'd ask you, at this point, you obviously support Brown v. Board of Education -- do you, and the finding of the court?

ALITO: Certainly, Senator.

DURBIN: And do you believe that the Constitution protects the right of children in America to be educated in schools that are not segregated?

ALITO: Absolutely, Senator. That was one of the greatest, if not the single greatest thing, that the Supreme Court of the United States has ever done.

DURBIN: And as you read that Supreme Court decision, that historic decision, they find the basis for that decision the equal protection clause of our Constitution.

ALITO: Yes, they did. That was I think -- of course, we fought a Civil War to get the 14th Amendment and to adopt the constitutional principle of equality for people of all races.

DURBIN: The reason I asked you about those two cases is that neither of those cases referred to explicit language in the Constitution. Those cases were based on concepts of equality and liberty within our Constitution.

And the Griswold case took that concept of liberty and said it means privacy, though the word is not in our Constitution. And the Brown v. Board of Education took the concept of equality, equal protection, and said that means public education will not be segregated.

I raise that because I listened carefully as Senator Schumer asked you yesterday about Roe v. Wade.

And I couldn't understand your conclusion.

You conceded the fact that we have free speech because it's explicit in our Constitution, protected constitutional right. And yet, when Senator Schumer asked you repeatedly, "Do you find that Roe v. Wade established and recognized a constitutional protection for a woman to make this most private decision?," you wouldn't answer. You wouldn't give a direct answer.

On two Supreme Court cases, Griswold and Brown now, you have said, just right as we started this hearing, that you believe there is a constitutional basis for this protection and for this right. And yet, when it came to Roe v. Wade, you would not. Most of us are troubled by this 1985 memo. You said yesterday, you would have an open mind when it came to this issue.

I'm sorry to report that your memo seeking a job in the Reagan administration does not evidence an open mind. It evidences a mind that sadly is closed in some areas.

Yesterday, when you were asked about one man, one vote, you clarified it. You said those were my views then, they're not my views now.

When Senator Kohl asked you about the power and authority of elected branches as opposed to others, no; you said I want to clarify that's not my view now.

And yet, when we have tried to press you on this critical statement that you made in that application, a statement which was made by you that said the Constitution does not protect a right to an abortion, you've been unwilling to distance yourself and to say that you disagree with that.

I think this is critically important, because as far as I am concerned, Judge Alito, we have to rely on the Supreme Court to protect our rights and freedom, especially our right to privacy. And for you to say that you're for Griswold, you accept the constitutional basis for Griswold, but you can't bring yourself to say there's a constitutional basis for the right of a woman's privacy when she is deciding -- making a tragic, painful decision about continuing a pregnancy that may risk her health or her life, I'm troubled by that.

Why can you say unequivocally that you find constitutional support for Griswold, unequivocally you find constitutional support for Brown, but cannot bring yourself to say that you find constitutional support for a woman's right to choose?

ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.

And the principle that was finally recognized in Brown v. Board of Education, after nearly a century of misapplication of the 14th Amendment, is that denying people of a particular race the opportunity to attend schools or, for that matter, to make use of other public facilities that are open to people of a different race denies them equality. They're not treated the same way -- an African-American is not treated the same way as a black (sic) person when they're treated that way, so they're denied equality.

And that is based squarely on the language of the equal protection clause and the principle, the heart of the principle that was -- the magnificent principle that emerged from this great struggle that is embodied in the equal protection clause.

Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.

But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process -- shall be denied liberty without due process of law.

And that's my understanding of it. And the issue that was involved in Griswold, the possession of contraceptives by married people, is not an issue that is likely to come before the courts again.

It's not likely to come before the 3rd Circuit; it's not likely to come before the Supreme Court. So, I feel an ability to comment -- a greater ability to comment on that than I do on an issue that is involved in litigation.

What I have said about Roe is that if it were -- if the issue were to come before me, if I'm confirmed and I'm on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important.

The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General's office. But that was 20 years ago and a great deal has happened in the case law since then.

Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.

And then if I got beyond that, I would approach the question. And of course, in Casey, that was that was the beginning and the ending point of the analysis in the joint opinion.

If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.

DURBIN: Well, this is what troubles me: that you do not see Roe as a natural extension of Griswold; that you do not see the privacy rights of Griswold extended by the decision in Roe; that you decided to create categories of cases that have been decided by the court that you will concede have constitutional protection, but you have left in question the future of Roe v. Wade.

Yesterday, Senator Specter asked you, as he asked John Roberts before you, a series of questions about whether or not you accept the concept that this is somehow a precedent, that we can rely on; that is embedded in our experience; that if it were changed, it would call into question the legitimacy of the court.

And time and time again, he brought you to the edge, hoping that you would agree. And rarely, if ever, did you acknowledge that you would agree.

You made a most general statement that you believed reliance was part of stare decisis.

But let me just ask you this: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.

And it is my -- and the Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes -- in Casey -- based on stare decisis.

And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.

First of all, the more often a decision is reaffirmed, the more people tend to rely on it. Secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.

And when they examine a question and they reach a conclusion, I think that's entitled to considerable respect.

And, of course, the more times that happens, the more respect the decision is entitled to. And that's my view of that.

So it's a very important precedent...

DURBIN: Is it the settled law of the land?

ALITO: If "settled" means that it can't be reexamined, then that's one thing. If "settled" means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: I have explained, Senator, as best I can how I see it.

It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed.

But it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I've sat on three of them on the Court of Appeals for the 3rd Circuit. I'm sure there are others in other courts of appeals or working their way toward the courts of appeals right now.

So it's an issue that is involved in a considerable amount of litigation that is going on.

DURBIN: I would say, Judge Alito, that is a painful issue for most of us. It is a difficult issue for most of us. The act of abortion itself is many times a hard decision, a sad decision, a tragic decision.

I believe that, for 30 years, we have tried to strike a balance in this country to say it is a legal procedure but it should be discouraged, it should be legal but rare, and try to find ways to reduce the incidence of abortion.

But as I listen to the way that you've answered this question this morning and yesterday, and the fact that you have refused to refute that statement in the 1985 job application, I'm concerned.

I'm concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion, that would make it illegal in this country, would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives and the doctors who help them.

That is very troubling, particularly -- and because you have stated that you are committed to this right of privacy.

If I could move to another issue that came up yesterday, I didn't understand your answer to one question, and I want to clarify it: this so-called Concerned Alumni of Princeton. You noted in your application for a job with the Department of Justice you belonged to two organizations: the Federalist Society and the Concerned Alumni of Princeton.

I won't get into the Federalist Society because every time I say those words, they go into a rage that I'm somehow guilty of McCarthy- like tactics, asking, "Who are these people in the Federalist Society?" I won't touch it.

Let me just go to the Concerned Alumni of Princeton. I didn't understand your answer.

Your answer said something about ROTC being discontinued at Princeton University. I know you were involved in ROTC. I'm told that by the time you filled out this application ROTC had been restored.

I don't believe you were suggesting that bringing more women and minorities to Princeton would somehow jeopardize the future of ROTC. I don't know that that's the case. But there is a woman named Diane Weeks who was a colleague of yours in the New Jersey U.S. Attorney's Office. And she said that she was troubled by your membership in this group.

She said you had a first-rate legal mind, but here's what she went on to say: "When I saw Concerned Alumni of Princeton on that 1985 job application, I was flabbergasted," she said.

"I was totally stunned. I couldn't believe it. CAP made it clear to women like me we were not wanted on campus. And he is touting his membership in this group in 1985, 13 years after he graduated? He's not a young man at this point," she said. "And I don't buy for a second that he was doing it just to get a job.

"Membership in CAP gives a good sense of what someone's personal beliefs are. I'm very troubled by this and if I were in the Senate, I would want some answers. I don't think explaining discontinuing ROTC at Princeton is an answer."

What is your answer? Why did you include this controversial organization as one of your qualifications for being part of the Reagan administration?

As you said, with your background, with your immigrant background and the fact that Princeton had just started allowing people of your background as students, how could you identify with a group that would discriminate against women and minorities?

ALITO: Well, Diane Weeks was an assistant U.S. attorney in the U.S. Attorney's Office in New Jersey and somebody that I hired, and one of many women whom I hired when I was U.S. attorney. And I think that illustrates my attitude toward equality for women.

I've said what I can say about what I can recall about this group, Senator, which is virtually nothing.

I put it down on the '85 form as a group in which I was a member. I didn't say I was anything more than a member. And since I put it down, I'm sure that I was a member at the time.

But I'm also sure -- and I have wracked my memory on this, that if I had participated in the group in any active way, if I had attended meetings or done anything else substantial in connection with this group, I would remember it.

And if I had repeated -- if I had renewed my membership, for example, over a period of years, I'm sure I would remember that.

So that's the best I can reconstruct as to what happened with this group.

I mentioned in wracking my memory about this, I said, "What would it have been, what could it have been about the administration of Princeton that would have caused me to sign up to be a member of this group around the time of this application?" And I don't have a specific recollection, but I do know that the issue of ROTC has bothered me for a long period of time. The expulsion during the time of the units, at the time when I was a student there, struck me as a very bad thing for Princeton to do.

DURBIN: Did women and minorities have anything to do with that?

ALITO: No. And I did not join this group, I'm quite confident, because of any attitude toward women or minorities.

What has bothered me about -- what bothered me about the Princeton administration over a period of time was the treatment of ROTC. And after the unit was brought back, I know there's been a continuing controversy over a period of years about whether it would be kept on campus, whether in any way this was demeaning to the university to have an ROTC unit on campus, whether students who were enrolled in ROTC could receive credit for the courses, whether the ROTC instructors could be considered in any way a part of the faculty.

All of this bothered me, and it is my recollection that it continued over a period of time.

DURBIN: Let me ask you, if I might, to reflect on a couple other things. You're a Bruce Springsteen fan?

ALITO: I am to some degree, yes.

DURBIN: I guess most people in New Jersey would be. They should be.

ALITO: There was a movement some time ago -- we don't have an official state song and there was a movement to make "Born to Run" our official state song. But it didn't quite make it.

DURBIN: We'll stick with Lincoln in Illinois, but I can understand your commitment to Bruce Springsteen.

They once asked him: How do you come up with the songs that you write and the characters that are in them? And he said, I have a familiarity with the crushing hand of fate. It's a great line.

I want to ask you about the crushing happened of fate in several of your decisions. Riley v. Taylor: It was the murder conviction of an African-American defendant.

BLITZER: We're going to break away briefly from the hearing. Two very important subjects raised by Senator Dick Durbin, Democrat of Illinois, on the issue of abortion rights for women and on the membership that Samuel Alito had in this organization, Concerned Alumni of Princeton, a very controversial organization. He cited his membership in a 1985 job application for the Reagan Justice Department.

Jeff Greenfield and Jeff Toobin are here in THE SITUATION ROOM with us.

Jeff, first on the issue of abortion, it's a delicate line he was walking. How did he do?

JEFF GREENFIELD, CNN SR. ANALYST: Well, what Senator Durbin has done is in contrast to some of his colleagues, I must say yesterday, who are in love with the sound of their own voices actually trying to narrow the area where Judge Alito can find refuge. He's saying, look, you said to us with Brown -- that's the segregation decision -- and Griswald, the birth control decision, that even though the words are in the Constitution, you say that's settled law, but you're not doing that with Roe, you're leave yourself wiggle room to overturn it. And the whole basis of the argument not to confirm is most Americans don't think a justice of the Supreme Court should vote that way. We think that you have a real agenda. We don't buy the fact that you have an open mind, and that's what Durbin was trying to illustrate here, saying you draw a big distinction between segregation and birth control here and abortion here. We think you're giving yourself room to overrule.

BLITZER: John Roberts is now the Supreme Court chief justice when he was asked these similar questions. He did say that Roe versus Wade was settled law.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Yes, the question I have is how much of this is just semantics and how much is actually a substantive difference between Alito and Roberts, because you're right, Roberts did use the phrase settled law of the land. Alito just now in his exchange with Senator Durbin said, it is a precedent, it is entitled led to respect. He didn't...

BLITZER: Depends on your definition of settled law.

TOOBIN: Right, and he did't adopt the phrase "settled law." I don't if that is any substantive difference, but this is kind of the state of the art evasion that all Supreme Court nominees of whatever party use rather than simply answering the question which all 18 senators which is, do you support Roe v. Wade?

BLITZER: Clearly Durbin was not satisfied with that answer on the issue of abortion rights for women. He also seems to be not satisfied with the explanation, sort of an evolving explanation, that Judge Alito has been providing, and why he listed that membership in 1985 in the concerned alumni of Princeton in his job application. This organization, according to people who were at Princeton at the time, opposed minority and women being admitted in large numbers at Princeton.

GREENFIELD: I think the idea here is to try to say, you were part of a group that wasn't just concerned about ROTC, that this was a group of people who said let's bring back the old Princeton, which in the minds of its critics means legacy admissions. Your father had to be Thurston Carswell IX to get in, we don't really like blacks, we don't really like women on campus, and to try to say, to be a member of that group reflected that kind of, if I may borrow from Monty Python, upper-class twit of the year attitude toward other people. And Alito saying, look, I can't really remember, it was a long time ago, I think it was about ROTC and nothing else. The idea is to try to push him away from his argument that he reflects, you know, real American values. I don't know how much...

BLITZER: And there's a lot of his critics are saying, that's simply not credible, that he can't remember this organization.

TOOBIN: I think the answers about Princeton have been Alito's weakness, because it is peculiar to brag about membership in an organization, not simply listing it, but touting it as a credential, and then to have absolutely no recollection of it, especially just going back to the mid '80s. This was going on in a lot of campuses, especially in the Ivy League. Dartmouth had a big controversy about whether sort of the old establishment could control the university still and whether diversity could come in. I think that's -- it makes it harder to believe that he has no memory of it. But maybe he doesn't.

BLITZER: All right, we're going to take a break, but we'll have plenty of time to continue this discussion. Much more of our coverage of the confirmation hearings of Samuel Alito. We're also going to check some other important news unfolding right now.

We'll take a quick break. You're in THE SITUATION ROOM.


BLITZER: The confirmation hearings of Samuel Alito continuing before the Senate Judiciary Committee. If you want to watch all of this unfiltered, you can always go to You can view it on your laptop, your desktop,


BLITZER: We're also watching the confirmation hearings of Samuel Alito before the Senate Judiciary Committee. We're going to go back there momentarily. Jeff Greenfield and Jeffrey Toobin are here with us.

Is this a deal breaker, potentially, this issue of concerned alumni of Princeton, for Samuel Alito, based on what Leahy just said, the ranking Democrat, he's troubled by the inconsistencies in his testimony. And what we just heard -- the line of questioning from Senator Durbin, Senator Kennedy, Senator Biden, Senator Schumer. A lot of these Democrats are going back to this one issue.

JEFF GREENFIELD, CNN CORRESPONDENT: If they somehow could show that Samuel Alito was an enthusiastic member and embraced the more contentious or objectionable parts of this group, you know, that we really don't want blacks and women in this campus, they could cause him the kind of trouble that Justice Hugo Black got into in 1937. Right after he was confirmed, it was learned that he had been a member of the klan and may have actually accepted an award from them. And had he to go on national radio to explain all that away. But I don't think they're anywhere close to that now.

Look, quickly, my feelings is that when he was applying for a job in a conservative administration, he or some ally said, find anything you can that proves you're a real moving conservative. Tell them you like Goldwater. Tell them you read "The National Review." Tell them you had a poster of Bill Buckley on your wall.

BLITZER: He did all that and they stabbed him.

GREENFIELD: Exactly. And CAP was one of those. And now, from the perspective of 20 years later, not such a good thing to be associated with a group that has a whiff of elitism, if not worse, about it.

BLITZER: Senator Leahy cited the statement that Diane Weeks, who was a Princeton alum, who was very concerned about this organization, who went to work for Samuel Alito in the U.S. attorney's office in New Jersey, he had hired her. But she was pretty outraged. In this day and age of the Internet and blogs, potentially there are others who may have been members of this organization who may have a different recollection of Samuel Alito.

JEFFREY TOOBIN, CNN CORRESPONDENT: Well, and interestingly, the records of CAP are on -- are in the Library of Congress, but the leadership of CAP has not allowed the Judiciary Committee investigators, that is the Democratic investigators, to examine to see if he has any -- there are any references to him in there. So there are no -- there's no paper trail on this subject.

I don't think CAP is a make or break issue here. I do think, however, that Roe versus Wade and abortion and privacy, if there's going to and movement against Alito, it's going to be because of that. And, frankly, that's what we ought to have debates about with Supreme Court justices, the substance of what they stand for, not, you know, 20 years ago organizations they may have joined for 20 minutes.

I mean I think the questioning that Durbin was doing there, that's kind of issue, abortion, privacy and maybe we'll get into executive power, that, you know, that's the kind of substantive debate we ought to have about Supreme Court justices.

BLITZER: And those are the issues, the specific issues, that some moderate Republicans, like the two senators from Maine, Susan Collins, Olympia Snowe, who support abortion rights for women. Those are the issues that they'll be looking at very closely as well.

TOOBIN: Absolutely. And if the Democrats want to mount a filibuster in a way that does not lead to the nuclear option and thus the shutdown of all filibusters for all eternity, they've got to have those moderate Republicans, Snowe, Chafee of Rhode Island, perhaps even Specter. Although Specter seems very much inclined to support Alito at this point.

BLITZER: At least right now.

All right, Senator Sam Brownback, Republican of Kansas, has started asking questions of Alito. Let's go back to the committee.

SEN. SAM BROWNBACK, (R) JUDICIARY COMMITTEE: That you've written on religious freedom type cases, takings (ph) cases. I'd like to get into some of these areas. But I want to enter into the record, Mr. Chairman, a letter from a former law clerk of yours, David Walk (ph), dated January 6, 2006. David worked with you in the New Jersey U.S. attorney's office. I believe you -- don't know if you remember David or not.


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

BROWNBACK: Thank you.

He's a life-long Democrat, former member of the ACLU and talks about how fair were you to everybody's rights. But then he cites the case of Franklin Bigbonwa (ph). This was a Nigerian set to be deported for drug dealing who had testified against other Nigerian drug dealers and was fearful of being deported that he would be killed once back in Nigeria. The other two judges said, his case, he shouldn't be believed on the face of it. And you said he should and that the trial court should have given more deference to this Nigerian to be deported. This was somebody that David Walk represented.

Talk about a little guy in a case and that's one that's cited in this particular record and letter, that I would hope my colleague from Illinois could take a chance at. Because it's a legitimate point of view that's saying, well, it looks like you always take one side or another. Here's where another side was taken.

And then here's a letter from another individual who worked with you, Kathy Fleming (ph). A life-long Democrat, president-elect National Women's Bar Association. Gives an unqualified endorsement of you. She says then, but by providing my credentials as an outspoken women's rights advocate and liberal-minded criminal defense attorney, I hope you will appreciate the significance of my unqualified and enthusiastic recommendation of Sam Alito for the Supreme Court.

I think one can kind of look in the past and try to say, well, OK, there's this problem, there's that, but then when people that know you well put their names to letters saying differently, I think that's also something we should consider. And I'd ask that that letter be put into the record as well.

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

BROWNBACK: Thank you.

Judge Alito, the Supreme Court has gotten a number of things wrong at times, too. That would be correct in the answer when the court gets things wrong is to overturn the case. Is that -- that's the way it works, isn't that correct?

ALITO: Well, when the court gets something wrong and there's a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine and I've said a lot about it.

BROWNBACK: Wait, let me just ask you, is Plessy wrong? Plessy versus Ferguson?

ALITO: Plessy was certainly wrong.

BROWNBACK: OK. I mean, and you've gone through this. Brown versus Board of Education, which is in my hometown of Topeka, Kansas. It was there last year of the dedication school house, 50 years ago. That overturned Plessy. Plessy had stood on the books since 1986. I don't know if you knew the number. And I've got a chart up here. It was depended upon by a number of people for a long period of time. You've got it sitting on the books for 60 years, twice the length of time of Roe versus Wade.

You've got these number of cases that considered Plessy and upheld Plessy to the dependency. And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say unanimously, that's just not right. Now, stare decisis would say in the Brown case, you should uphold Plessy. Is that correct?

ALITO: It would certainly would be a factor that you would consider in determining whether to overrule it.

BROWNBACK: But, obviously . . .

ALITO: The doctrine that you would consider.

BROWNBACK: Obviously Brown overturned it. And thank goodness it did, correct?

ALITO: Certainly.

BROWNBACK: That it overturned all these super-duper precedents that had been depended upon in this case because the court got it wrong in Plessy. Is that correct?

ALITO: The court certainly got it wrong in Plessy. And it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.

One of the things I think that people should have understood, that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law. I think they should have recognized that.

BROWNBACK: They don't.

ALITO: But one of the things that was illustrated in those cases, in Swet (ph) versus Painer (ph), the last one on the list, brought that out, was that, in fact, the facilities, the supposedly equal facilities, were never equal and that -- and the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated, if the illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal. And that was an important factor, I think, in leading to the decision in Brown versus Board of Education.

BROWNBACK: I want to give you another number. And that is, that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the case, the court got it wrong in some 200 cases. And thank goodness the court's willing to review various cases. I want to give you an example of a couple, though, that the court hasn't reviewed yet that I think are spectacularly wrong.

The 1927 case of Buck versus Bell. I don't know if you're familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired where Buck, a patient at the so-called Virginia State Colony for Epileptics and Feeble-minded was scheduled to be sterilized after doctors alleged she was a genetic threat to the population due to her diminished mental capacity. Buck's guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court. But in an eight to one decision, the court found that it was in the state's interest to have her sterilized.

Majority opinion written by Justice Oliver Wendell Holmes said, we have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sapped their strength of the state for these lesser sacrifices. Often not felt to be such by those concerned in order to prevent our being swamped with incompetence.

Clearly some precedents are undeserving of respect because they're repugnant to the Constitution, aren't they? Isn't Plessy repugnant to the Constitution?

ALITO: It certain was repugnant to the equal protection clause.

BROWNBACK: And evasion of human dignity, isn't Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?

ALITO: I think they are repugnant to the traditions of our country. I don't thing there's any question about that.

BROWNBACK: Give you another case. The Korematsu case versus the United States. A 1944 case. World War II broke out following Japanese attacks on Pearl Harbor. Feelings spread that Japanese Americans, both naturalized and those born in the United States, might not be loyal to the United States, should be removed from the West Coast. So great was the fear that even the esteemed writer Walter Litman (ph) stated that "nobody's constitutional rights include the right to reside and do business on a battlefield. There's plenty of room elsewhere for him to exercise his rights." President Roosevelt signed an executive order removing them.

Korematsu contested the constitutionality, Fred Korematsu did, of his internment. In Korematsu versus the United States, the Supreme Court held that military necessity justified the internment program and that Fred Korematsu had no protection against relocation under the Constitution. Of course, that was later overturned. Excuse me, that was never overturned.

1980, Congress -- 1948, Congress enacted Japanese-American Evacuation Claims Act to provide some monetary compensation. 1980, Congress again revisited the case. 1988, Congress passed legislation apologizing for the internment and awarded each survivor $20,000. In 1999, Fred Korematsu is awarded the presidential medal of freedom, highest civilian honor that anyone can receive. Justice has not been done because Korematsu remains on the books. Still on the books.

Roe versus Wade. You've had every question on that. But I want to point out, its difficulty. My colleagues on the other side look at this as completely settled law. But let's see what the legal experts say about how settled it is.

Lawrence Tribe (ph) will be here to testify, I believe, probably against you, in a little bit. Let's see what he says, a professor of law at Harvard. "One of the most curious things about Roe is that behind its own verbal smoke screen, the substantive judgment on which it rests is nowhere to be found." Settled law? Super-duper precedents? Lawrence Tribe has some questions about it.

Justice Ruth Bader Ginsburg. Roe I believe would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict. Provoked, not resolved conflict. One of your potential colleagues says.

Edward Lazarus, former clerk to Chief Justice Harry Blackman, who wrote Roe. As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this is similarly (ph) committed to the right to choose as someone who believes such a right was grounded elsewhere in the Constitution instead of where Roe placed it. And as someone who loved Roe's author (ph) like a grandfather. Settled law? Edward Lazarus has some questions about it being settled.

Let's look at John Hart Ely, former dean of Stanford Law School. Excellent law school in the country. One of the top law schools in the country. Roe versus Wade "is not constitutional law and gives almost no sense of an obligation to try to be. What is frightening about Roe is that this super protected right is not inferred from the language of the Constitution. Framers think in respecting this specific problem (ph) issue (ph), any general value derivable from the provisions they included or the nation's governmental structure." John Hart Ely. Think he thinks Roe is settled law? Not constitutional. Gives no sense of an obligation to try to be.

Alan Dershowitz, professor of law, Harvard Law School. One of the top law schools in the country. It's not Princeton, but -- Roe versus Wade and Bush versus Gore "represent opposite sides of the same currency of judicial activism and areas more appropriately left to the political process. Judges have no special competency, qualifications or mandate to decide between equally compelling moral claims as in the abortion controversy. Clear governing constitutional principles are not present in either case." Settled law? Super-duper precedents? I think there is places where the court gets it wrong and hopefully they will continue to be willing to revisit it.

Now I want to look at a couple of areas of law in addition to this.

BLITZER: All right. So Senator Sam Brownback, Republican of Kansas, an outspoken opponent of abortion rights for women, someone who clearly believes that Roe versus Wade is not settled law, not a super-duper precedent, as other members of the committee have suggested, making a lengthy statement and bringing forth lots of legal experts to suggest that Roe versus Wade is not necessarily settled law.

You didn't hear any response in this particular case from Samuel Alito, but Sam Brownback clearly making the case that just like Plessy versus Ferguson could be overturned, Roe versus Wade should be overturned.

GREENFIELD: And the people he was citing -- and this is an interesting fact -- are liberals, political liberals, who all believe in abortion as a policy matter, all of whom believe as a constitutional matter the court got it wrong in Roe. This is a man who may be running for president and you can say that he's trying to shore up his conservative credentials. But Brownback is equating abortion with human rights violations, with school segregation, with internment and he's using politically liberal scholars who don't like the reasoning behind Roe to make his case that this is not settled law.

TOOBIN: But many of those scholars have criticized Roe but have since very much come to terms with it and do believe it's protected by the Constitution. And many of the criticisms of Roe are not necessarily also aimed at Cassie, which was the 1992 decision which reaffirmed Roe. So there was a little selective quotation going on there. But certainly Senator Brownback's right, that this remains the controversial constitutional law issue of our time.

BLITZER: And in the process indirectly making a nice swipe at his chairman, Republican Senator Arlen Specter, who had spoken about super-duper precedents in Roe versus Wades.

All right. We're going to take another quick break. Remember, you can always go to if you want to watch all of these hearings. We're going to go back there ourselves. We'll take a quick break, though. We're going to also check some other important news unfolding, including the fate of another coal miner. Stay with us.


KAGAN: At least one structure has been destroyed. People in nearly 130 homes were told to evacuate very early this morning. There are no reports of injuries right now. Firefighters are concerned that high winds could spread the fire to more populated areas.

More flames from a plant explosion in York County, Pennsylvania. Police say an explosion and fire at an adhesive factory yesterday re- ignited last night setting off more blasts. No injuries there either. Residents within a three-mile area were told to stay inside because of hazardous fumes. A section of an interstate highway that closed last night has now reopened there.

And there's been another deadly mine accident, this time in Kentucky. Authorities say a worker was crushed when part of the mine shaft roof collapsed on him. It's especially chilling in light of the deaths of 12 West Virginia miners just last week. Our Keith Oppenheim is in Pikeville, Kentucky, with more on this latest incident.



And this morning the governor of Kentucky, Ernie Fletcher, led a delegation to this mine. Part of that delegation was to begin an investigation into what happened. And what we know is the miner who died, his name was Cornelius Yates. He was 44 years old. And at 3:00 p.m. yesterday afternoon he was in the mine about 900 feet inside and a huge chunk of mine roof fell on top of him. This chunk was about 20 feet by 10 feet by 3 feet thick. And it landed on him. A nine-person rescue team went inside the mine about an hour later after the accident happened and they found that Cornelius Yates was dead.

Actually, Cornelius Yates had led a four-man team inside the mine at the time the accident happened but he was the only one who got hurt. He's the one fatality, the first fatality in Kentucky for ming this year.

One of the things I spoke about with Governor Fletcher this morning was the record of this mine. And the governor told me that there were citations at this mine, particularly one November, which indicated that there were some problems found by inspectors with potential mine roof collapse. So essentially what the investigation team is going to try to find out is exactly what happened and whether or not this was essentially an accident waiting to happen.


KAGAN: Keith Oppenheim in Kentucky, thank you.

We are now learning more today about the 12 coal miners who died of carbon monoxide poisoning inside a West Virginia mine last week. The Associated Press reports the miners tried to use a mechanized mine car to force their way out after the explosion. A relative of the sole survivor said the company's chief executive shared that information with the family. Rescue crews found that footprints indicating the men had tried to actually go back to get back out of the mine.

The Iraqi baby, known as baby Noor, may not after all need a second operation today. Doctors say that a brain scan doesn't show any sign of fluid buildup. The three-month-old had surgery on Monday to treat a spinal birth defect and yesterday doctors here in Atlanta said she was doing great. Baby Noor was brought here to the U.S. for medical care after U.S. troops found her near Baghdad.

Well, what happens in Vegas stays in Vegas, including this. That happened just moments ago. That happened just moments ago in Las Vegas, Nevada, this massive implosion. The 19-story Castaways casino tower was reduced to rubble this morning. The casino closed in January of 2004. The owners, they haven't said what they plan to do with that site. It is about three miles east of the Las Vegas Strip. Now, right now we have a developing story that's taking place in Manassas, Virginia. It has to do with a bank robbery, a possible hostage situation. Our Brian Todd is on the scene from Manassas, Virginia.

Brian, what can you tell us?

BRIAN TODD, CNN CORRESPONDENT: Daryn, we can tell you that the hostage situation was, according to police, resolved just a short time ago. The hostage has been released unhurt.

The police in Manassas here, the Prince William County Police, surrounded the bank with one hostage inside and one suspect. They ordered the suspect outside. He did surrender. The police then went in and escorted the hostage out unharmed. However, one suspect -- at least one suspect is still on the loose. The suspect was observed running from a nearby vehicle and the police have not been able to catch up to that person yet.

So the hostage situation here at the Patriot Bank on Sudderly (ph) Road in Manassas has been resolved. The hostage is unhurt. We are told it is a 48-year-old woman who was there.

This incident developed at about 7:00 a.m. this morning. The bank opened early and at least one suspect went into the building. We're told that one of them at least was dressed all in black, possibly more suspects. Initial reports said there were three. We're trying to get confirm as to how many suspects there, in fact, were who entered the bank.

But right now the hostage situation has been resolved. The hostage has been released unhurt.

KAGAN: All right. Brian Todd on the scene in Manassas, Virginia.

Brian, thank you for that update.

We'll have more news as it develops. Right now let's go back to THE SITUATION ROOM and Wolf's special coverage of the Alito hearings.


BLITZER: Thanks very much, Daryn.

And we're going to get back to the Alito confirmation hearings momentarily. Just want to do a little bit more analysis.

These have been some contentious moments that we've seen this morning. The questioning that Durbin has -- that began with Durbin and then, from a very different perspective, with Senator Brownback, an outspoken opponent of abortion. We're about to hear from another conservative senator, Tom Coburn, Oklahoma, himself a physician, another outspoken opponent of abortion.

GREENFIELD: And, in fact, Tom Coburn is one of those people who comes at this issue from the reverse of some of the liberals. He has more or less said, if I don't know that a nominee is going to overturn Roe v. Wade, I'm not sure I want to vote for him. This is someone who had been very, very tough on abortion. At one point suggesting that if abortion were re-criminalized, physicians who performed them might be subject to capital punishment. So he comes at this from a completely different view from the liberals.

The other thing worth saying is that in talking to some folks on the democratic liberal side of things last night, there's a palpable air of frustration and depression. They don't think that the senators on the Judiciary Committee on their side have come close to making a case that would justify a filibuster and really mount public opposition. That could change in the next day and a half but they are certainly not optimistic about stopping Judge Alito.

BLITZER: And a lot of our viewers, Jeff, will remember that Senator Coburn got very emotional during the John Roberts hearings in speaking on the whole issue of abortion.

TOOBIN: Well, as I believe he was talking about partisanship, he wasn't talking about abortion when he started to cry. It was, frankly, bizarre. I didn't really understand why he was so -- because it wasn't a life or death issue. All he was talking about is why senators were fighting with each other so much.

BLITZER: But on his opening statement on Monday, he did get very emotional when he was speaking about abortion.

TOOBIN: Oh, this time. Yes, indeed. This is his cause. This is his subject. This is the issue that he wrote into the Senate. And, you know, it is true that there is pressure on this nominee from the opposite direction that we're mostly talking about, which is to commit himself against abortion. I don't think he's going to pre- commit himself for or against, and that's probably what will stand him in good stead.

BLITZER: But it was curious that he was not willing to say what John Roberts said when he was testifying before the Senate Judiciary Committee, that Roe vs. Wade is settled law.

GREENFIELD: But you need to be very careful. That's why people don't like lawyers. They can be very good with words. Roberts and Alito are very close in saying -- Alito just said it to Durbin. The more you reaffirm a case, the stronger the presidential value lies. But the wiggle room there is enough to dance the mamba.

BLITZER: But isn't there a difference between saying it's an important precedent on the one hand, as opposed to saying it's settled law on the other?

TOOBIN: Neither one of those are really legal terms of art. They are invented for purposes of this hearing. And it is very much in the mind of the speaker and the mind of the listener what they actually mean.

What I think is interesting about what's happened this morning is that the issue that we've heard a lot about, that the Democrats were going to raise, which was national security, power of the executive, has not come up, at least from Durbin.

I think -- and that's an illustration of the Democrats failing to make any progress on that at all. That Alito's responses were so general and so basically uncontroversial, they're not going to get much traction on it. And the issue, if they are going to make a stand against Alito, is going to be the old-fashioned basic issue of does this nominee support Roe v. Wade, is he committed to the right to privacy, which is where these nominations tend to begin and end.

GREENFIELD: In a time when Democrats who used to have 55 and 56 seats in the Senate now have 44. And we can't stress enough that the political shift over the last couple of decades has made this a very different terrain on which this is to be fought out.

BLITZER: All right. We're going to take another quick break. Remember, to our viewers, you want to watch all of these hearings unfiltered, go to

We're going to go back to the hearings. We're standing by. Senator Tom Coburn, conservative senator from Oklahoma, he's about to start questioning Samuel Alito. We'll take a quick break.



BLITZER: First-term Republican in the U.S. Senate, first time serving on the Judiciary Committee, Senator Tom Coburn, Republican of Oklahoma, asking questions of Samuel Alito.

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

SEN. TOM COBURN (R), OKLAHOMA: And I also want to go back and quote from somebody who was a member of CAP. And this is Judge Napalatano (ph). He's a commentator on one of the news shows. And I'd like his statements put into the record from yesterday, where he clarified what CAP was about and clarified the interest of ROTC on -- at Princeton -- actually, there's 13 cases.

And I also want to go back and quote from somebody who was a member of CAP, and this is Judge Napolitano. He's a commentator on one of the news shows.

And I'd like his statements put into the record from yesterday, where he clarified what CAP was about and clarified the interest of ROTC at Princeton, and the fact that that was one of the leading reasons that that organization was formed. So I'd like for those to be admitted as well.

As you know, I am not an attorney.

Sometimes it's very disadvantageous on this panel, but at times it's advantageous. So I have this little thing that I have to depend on, and I, kind of, read it for what it says. And as you talk about stare decisis, is that mentioned anywhere in here?

ALITO: It is not expressly mentioned in the Constitution.

COBURN: It's actually a procedure of common English law, correct?

ALITO: That's its origin, yes.

COBURN: That's its origin, and we use that as a tool for working with the Constitution.

Can you recall the number of times that precedents have been reversed by the Supreme Court?

ALITO: I don't know the exact figure, Senator.

COBURN: I think it's around 170-some times, affecting some 225 cases, I believe. That's close. That may not be exactly accurate.

So, in fact, it's a tool used to help us with the law, but our founders didn't say, "You have to use stare decisis in this," did they?

ALITO: No, they didn't.

They conferred the judicial power on the judiciary, and I think that contemplated that the federal judiciary would be permitted to proceed in accordance with fundamental judicial procedures as they had been known...

COBURN: At the time.

ALITO: ... at the time.

COBURN: And Article III, Section 2 really delineates the scope for the courts in this country.

And what it says is "all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority." So that really gives us the scope under Article III, Section 2.

And I was interested in Senator Kyl asked you yesterday about foreign law, something that is extremely disturbing to a lot of Americans; that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law.

As a matter of fact, the obligation is to use the United States law, the Constitution and the treaties. And that's exactly what Article III, Section 2, says. And so there's no reference at all to foreign law in terms of your obligations or your responsibility. And a matter of fact, the absence of it would say that, "Maybe this ought to be what we use and the codified law of the Congress and the treaties rather than foreign law."

So the question I have for you, and I couldn't get Judge Roberts to answer it because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don't think it is proper for the Supreme Court to use foreign law.

And I personally believe that that's an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice.

And I just wondered if you had any comments on that comment.

ALITO: Well, I don't think that we should look to foreign law to interpret our own Constitution.

I agree with you that the laws of the United States consist of the Constitution and treaties and laws and, I would add, regulations that are promulgated in accordance with law. And I don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution.

I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world.

The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time.

They wanted them to have the rights of Americans. And I think we should interpret our Constitution -- we should interpret our Constitution. And I don't think it's appropriate to look to foreign law.

I think that it presents a host of practical problems that have been pointed out. You have to decide which countries you are going to survey. And then it's often difficult to understand exactly what you are to make of foreign court decisions. All countries don't set up their court systems the same way. Foreign courts may have greater authority than the courts of the United States. They may be given a policy-making role. And, therefore, it would be more appropriate for them to weigh in on policy issues.

When our Constitution was being debated, there was a serious proposal to have members of the judiciary sit on a council of revision, where they would have a policy-making role before legislation was passed. And other countries can set up their judiciary in that way. So you'd have to understand the jurisdiction and the authority of the foreign courts. And then sometimes it's misleading to look to just one narrow provision of foreign law without considering the larger body of law in which it's located. If you focus too narrowly on that, you may distort the big picture.

So for all those reasons, I just don't think that's a useful thing to do.

COBURN: It actually undermines democracy, because you get to pick and choose. And the people of this country don't get to pick and choose that law. People from a different country. So it actually is a violation of the Constitution. And, to me, I very strongly and adamantly feel that it violates the good behavior, which is mentioned as part of the qualifications and the maintenance of that position.

I'm sorry Senator Durbin left. I wanted to razz him a little bit. You've taken quite a bit of criticism on things that you've written and said in 1985.

But I want to put forward, for 45 years, Senator Durbin was adamantly pro-life and he wrote multiple, multiple letters expressing that up until 1989. He is a very strong advocate for the abortion stance and a free right to choose. But I think it's important that the American people -- that if he has the ability to change his mind on something he wrote in 1989, certainly you have the ability to say something was inaptly put.

And so this is just Senator Durbin. I'm teasing him a little bit. But I think it's important that people recognize people can change their mind.

I continue to believe the Supreme Court's decision in Roe v. Wade should be reversed. There are other members on the other that are adamantly pro-abortion, pro-the destruction of human life today, that have changed their mind, changed their position.

So it's hard to be critical of you on something in 1985, have written something, when many of us have backtracked on things that we've said through the years.

And so I think it puts a little bit of perspective into where we're going.

I want to spend just a minute, if I can. Yesterday, during Senator Feinstein's questioning, there was some discussion about the health exception to any regulations pertaining to abortion.

On January 22nd, when Roe was decided, court also decided Doe v. Bolton. In that case, the court ruled that a woman's right to abortion could not be limited by the state if abortion was sought for reasons of maternal health.

And, as a practicing physician, I agree with that. I've actually performed abortions on women who were going to die if they did not have an abortion. So the choice was somebody alive versus losing both. The court defined health as all factors physical, emotion, psychological, familial and the woman's age, relevant to the well- being of the patient. This exception effectively expanded the right to abortion for any reason through all the entire pregnancy.

Since that time, states have been trying to find ways to effectively regulate abortion without intruding on this health exception, but it has proven nearly impossible.

The absence of knowledge is something that Roe v. Wade, which I believe was wrongly decided, has hurt us immensely in this country. And the absence of informed consent on abortion has hurt us immensely.

And Mr. Chairman, I would like to enter into the record a study published -- a 35-year longitudinal study which was just released this January from New Zealand. It followed women, 600 women for 35 years, from the time of abortion, that studied ill health effects.

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

COBURN: I would also like to enter into the record a Breast Cancer Institute study, an analysis of a Lancet 3/25/04 article, and also the testimony of Dr. Elizabeth Shadigian, University of Michigan clinical associate professor, Department of Obstetrics and Gynecology as to complications.

BLITZER: In fairness though, even if he had given Judge Alito a chance to respond, I doubt if Judge Alito would have said much on that sensitive subject.

We'll take a quick break. Remember, You can go there to watch all of the hearings unfiltered,

We'll take a quick break. When we come back, we'll speak with the White House pointman on the Samuel Alito confirmation process, the former Republican party chairman Ed Gillespie. He is standing by to join us, then we'll go back to the hearings. Stay with us.


BLITZER: Welcome back. We're in THE SITUATION ROOM. We're covering the confirmation hearings of Samuel Alito before the Senate Judiciary Committee.

We'll go back there shortly, but joining us now is Ed Gillespie. He's the former chairman of the Republican party. He's been one of those who's been helping Samuel Alito prepare for this session. Has it gone pretty much as you expected during your rehearsals?

ED GILLESPIE, SPECIAL ALITO ADVISER: Well, actually, it has. I have to say, Judge Alito is one who is a very measured and thoughtful person. I think that came across very clearly yesterday. The fact is that he is someone who as a judge approaches things with an open mind, weighs the facts of a case, doesn't seek to make new law based on his own personal opinion or desires. And I think, you know, through the full day of questioning yesterday, that became apparent. We'll see it here again today. So, yes, I haven't seen anything that caught anybody off guard or we didn't anticipate.

BLITZER: Was it deliberate or did it come as sort of just off the cuff? You helped John Roberts prepare for his confirmation hearings. He was approved. He's now the chief justice. He said Roe vs. Wade, in his view, was the settled law of the land. But we didn't hear -- we didn't necessarily hear Samuel Alito go that far. He said it's an important precedent, but it's -- he refused to say it was settled law.

GILLESPIE: Well, actually, Wolf, when Senator Durbin cited that -- and I'm sure one of the other senators will correct the record on that -- but Chief Justice Roberts never said that in a Supreme Court confirmation hearing. That was from 1991 -- or I'm sorry, 2001, in his confirmation to the First Circuit Court of Appeals.

And there is a difference, obviously, in terms of following the dictate of the Supreme Court. There is no revisiting when you're an appeals court justice or judge, as there is on the Supreme Court. And so Chief Justice Roberts did not say that and was pressed on it, in fact. What he said was pretty much exactly what Alito said, which was as a justice on Supreme Court, he would treat it with the respect it is due under the principles of stare decisis.

Judge Alito has treated, by the way, Roe and abortion rulings in the same manner. The fact is on two different occasions, he ruled to strike down abortion restrictions pursuant to the Supreme Court's parameters, and voted to uphold them on what he thought was the Supreme Court's parameters.

And so Senator Durbin is right that John Roberts had referred to Roe as settled law. He left out the context for it. It is not during his Supreme Court confirmation hearing, it was during his appellate court confirmation hearing.

BLITZER: Jeff Greenfield is here and Jeff Toobin. They want to weigh in, as well. Go ahead, Jeff.

GREENFIELD: Hi, Ed. You know, Mr. Dually (ph), that famous fictional bartender/philosopher, once said the Supreme Court follows the election returns. If once sense, if you didn't have 55 Republican senators for all the pretense about, you know, legal thinking, wouldn't this and heck of a lot more difficult confirmation for you?

GILLESPIE: You know, I don't know, Jeff. I think the Democrats have the right to change the approach to a confirmation of a Supreme Court justice and politicize it more. I would remind you that Justice Ruth Bader Ginsburg, who is the former general counsel for the American Civil Liberties Union, and Stephen Breyer, who was the general counsel to Senator Ted Kennedy when he was chairman of this very judiciary committee that we we're at today, were confirmed easily and with the strong overwhelming support of Republican senators who didn't agree necessarily with their judicial philosophy, but who recognized the fact that they had the intellect, the integrity and temperament to serve on the Supreme Court.

Now, Democrats seem to be saying, look, no one can question whether or not Judge Samuel Alito has the intellect, integrity and temperament to serve on the Supreme Court. What they're saying now is there is -- if we don't agree with the president who puts forward the nomination, we're going to vote against that nomination. That's a different standard being applied here. I hope it doesn't take hold.

TOOBIN: Ed, in your preparation sessions, what issue did you prepare for that has not come up that surprises you?

GILLESPIE: Well, I appreciate the invitation to advise the Democrats watching CNN to -- what they ought to ask. But first of all, I wouldn't disclose any discussions of a confidential nature in working with the judge toward preparation for the confirmation hearings. And, secondly, if I were, it probably wouldn't be things that they haven't thought to ask yet.

BLITZER: How worried are you, Ed, about this concerned alumni of Princeton, this whole issue that's come up? He's -- can't remember being a member of it, but he did cite it in his job application 20 years ago for the Reagan Justice Department.

GILLESPIE: What he said is he didn't remember any participation. The -- one of the things that keeps getting missed here -- and it was submitted for the record yesterday -- I think Senator Kyl submitted for the record yesterday, that the article from "The Princeton Packet" from 1985.

It's true that the ROTC was kicked off campus in the early '70s during the Vietnam War from Princeton. It's true they came back on campus, but it's also true they were going to be kicked off again in the -- in 1985, right in February 1985 is when that article appeared. And it said that concerned alumni of Princeton were opposing this effort by another group on campus to remove ROTC from campus.

And so that's one of those things that hasn't quite gotten through. The Democrats keep asking the question over an over again. Judge Alito who one who has consistently demonstrated -- look, this is the son of an Italian immigrant who went to Princeton at a time when sons of Italian immigrants were not warmly welcomed on that campus. He has a very strict adherence to equal opportunity under the law. And as a U.S. attorney, in fact, doubled -- doubled -- the number of women and minorities in supervisory positions in his U.S. attorney's office.

That's why Senator Brownback submitted that letter from that woman who considered herself a woman's rights activist and someone who identified herself on the left of the political spectrum who had worked with Judge Alito, knows him and knows his approach.

And what I fear is that if Democrats get can't into a legitimate head-to-head debate with Judge Alito over the law and whether -- and jurisprudence and whether or not the Supreme Court ought to be striking under God from the Pledge of Allegiance. Or ruling based on other country's laws instead of our Constitution, they may kind of pursue a tact like that. I hope they don't.

BLITZER: All right, Ed Gillespie, we're going to leave it right there. We're going to go back to the hearing. Thanks very much for joining us. Ed Gillespie is the former chairman...

GILLESPIE: Thank you, Wolf.

BLITZER: ... of the Republican party. He's one of those White House advisers who's been helping Samuel Alito prepare for this confirmation process.

We're going to take a quick break. We're going to go back to the hearings shortly. Remember, if you want to watch all of the hearings unfiltered on your laptop, on your desktop. We'll take a quick break. We'll also check all the day's other news. Much more of our coverage, right after this.



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