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Samuel Alito Hearings Continue

Aired January 11, 2006 - 14:48   ET


WOLF BLITZER, CNN ANCHOR: Welcome back. We are continuing our coverage of the Samuel Alito confirmation hearings for the nation's highest court, the U.S. Supreme Court. One issue that has come up, his involvement in a group called Concerned Alumni of Princeton or CAP. And just a little while ago, Senator Ted Kennedy asked for some documents at the Library of Congress to be subpoenaed, reviewing the history of this controversial organization.
I have Jeff Greenfield and Jeff Toobin here in THE SITUATION ROOM. For our viewers who are confused right now and are hearing all about this for the first time and saying to themselves, "What does this have to do with his being qualified for the United States Supreme Court?" Let's explain briefly what this whole to do is about.

JEFF GREENFIELD, CNN SENIOR ANALYST: The concern of the Democrats, in particular, is as follows. Back around 1970 at a number of campuses, conservatives organized groups to protest everything from permissive atmosphere to affirmative action to the elimination of ROTC on campus. Samuel Alito in his job application on the Reagan administration in 1985, listed as one of the two groups he was a member of, Concerned Alumni of Princeton.

The, I don't know if you want to call it the hope -- I think it's fair to say, the hope of Alito's opponents is if they can show that he was actively involved in a group that espoused anti-women, anti- minority feelings, they can say, "Look, this guy doesn't belong on the court."

That's the intention. And Alito is saying, "I don't have really have any memory of this group. I know I was active in some of the things you Senator Kennedy have quoted about was in some of their publications. I absolutely disavow and I find it abhorrent."

BLITZER: But he did list this membership in this group in an application that he formed a personal statement when applying for a job 20 years ago in the Reagan Justice Department.

GREENFIELD: And the arguments of Alito's opponents is why, in 1985 was he, as they put it, bragging, listing his membership. He must have known what it was about. It wasn't just about...

BLITZER: ... Let's fast forward now, Jeff. Kennedy and -- we're going to be hearing from Kennedy and Specter very soon presumably. They are going to be talking about the subpoena that Kennedy wants: four boxes of documents at the Library of Congress that deal with this CAP, this organization. But a reporter from "The New York Times" apparently went through these documents already and wrote about it at the end of November, November 26th. David Kirkpatrick writing in "The New York Times."

JEFFREY TOOBIN, CNN LEGAL ANALYST: David Kirkpatrick a very sharp guy, very accomplished reporter, he's a former fact-checker at "The New Yorker," very thorough person. I write for "The New Yorker" and I worked with Dave.

He went through these boxes, he was given permission to look through these boxes he concluded, as he wrote in "The New York Times" that Alito was not particularly involved in...

BLITZER: Let me read what he wrote in "The New York Times." And just to get to our viewers, those records and others at Mudd Library at Princeton give no indication that Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, was among the group's major donors. He was not an active leader of the group and two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role.

TOOBIN: So if the hope of the Democrats, or at least Senator Kennedy is, that they get access to these boxes of material and there will be some incendiary material in there, it seems extremely unlikely because Dave Kirkpatrick has been through those boxes and found nothing of particular relevance to Alito's qualifications.

BLITZER: But if there's nothing to hide, so why should the Republicans be upset? Why not let the committee staffers, Democrats and Republicans, go through the boxes and come up with zilch?

TOOBIN: They might, but they also want to get this hearing over with. And if they allow the boxes to be gone through, the Democrats may say, "Well, we need to keep the hearings going."

The Republicans will face a difficult strategic issue of whether to simply get rid of this issue all together, let them look through the boxes or just say, "This is all irrelevant, doesn't matter, let's move on."

BLITZER: We've got a statement also from a liberal group you have foreshadowed. You predicted this.

GREENFIELD: This is a conservative group.

BLITZER: I mean a conservative group, you predicted this would happen sooner rather than later. It happened very soon. Senator Kennedy once again has employed McCarthy-like dirty tactics that offend the First Amendment in asking for these documents.

GREENFIELD: There is a certain irony of how the wheel of history turns that groups on the right now accuse liberals of McCarthyism, since McCarthy was generally a figure of the right. But there is an irony here. I do remember when progressives, liberals did not want congressional committees borrowing through membership lists and financial contributors of political organizations because they thought it had a chilling effect on the First Amendment.

So I guess part of this depends on what uniform you are wearing at what time. But I have to say that the other part about this is the one question and Jeffrey you've mentioned this often, which Alito doesn't seem to be fully comfortable is in talking about this whole issue. Why would you join a group that Bill Frist among others had disavowed as unhelpful, unconstructive group?

TOOBIN: He is uncomfortable with the subject, there's no doubt. But what I keep thinking is 10 years from now, 20 years from now, presumably he is going to be confirmed. He will have expressed, you know, important views on the death penalty, on separation of powers, on civil rights, and we'll say to each other, "What did they spend his confirmation hearings talking about?"

Well, what an undergraduate group that he sort of was vaguely involved in 10 years after he got out of college. It doesn't seem terribly relevant to the incredibly important job he's going to hold. But politics work the way they work.

BLITZER: On the issue of abortion, has he moved his position forward? Do we know more today than we knew yesterday about where he stands?

GREENFIELD: I don't think so. And I think that it is no accident. In this sense, he is in lock step or in the same tradition as every post-Bork nominee, which is you don't tip your hand, you don't give the committee either the pro-choice or pro-life people a reason to say, "I'm not going to vote for that guy."

TOOBIN: The two Clinton nominees, Breyer and Ginsburg, pretty straightforwardly say they were pro Roe v. Wade, they were pro -- they were pro a women's right to choose abortion and would defend it under whatever theory. I think that's different.

BLITZER: I want to go back to the hearing right now. The Chairman Arlen Specter speaking.

SEN. ARLEN SPECTER (R-PA), CHAIRMAN, SENATE JUDICIARY COMMITTEE: ... issue which Senator Kennedy has raised about the Concerned Alumni of Princeton, as to the letter. I'm advised by my chief of staff, Michael O'Neill that he first saw a computer letter, and that he believes later a letter was delivered to the Judiciary Committee headquarters, apparently near Christmas, perhaps on Christmas Eve. And our custom is to log letters in, and the letter was never logged in.

But I repeat and confirm that I have never seen this letter until I saw a computer printout of it about an hour ago. Mr. O'Neill did talk to me about it over the break between Christmas and New Year's. I traveled to Iraq. That's the first time on the Judiciary Committee schedule I could find a few days to get away.

And Mr. O'Neill reminds me that we talked about it on the phone and I thought the matter was unmeritorious, not worthy of the time of the commission based on all that I knew about it. Very brief conversation. And we get so many requests and there are so many items that are largely staff driven, not that staff-driven matters aren't important, but if something is of significance, you customarily expect a member to tell you about it.

Senator Kennedy and I frequent the gym at the same time and talk all the time, and never mentioned it to me, nor did he take it to the ranking member.

I make it a point that Senator Leahy's calls are the first ones I return, and I have a fair number, but I return all calls from members very, very promptly. And had this matter been presented to me, I would have given it more attention than I did on that telephone call that I have referred to.

So much for matters which are not quite as relevant as what I'm about to come to.

"The New York Times" published a story about this on November 26th, and my chief of staff, William Reynolds, talked to David Kirkpatrick, who said he had gone through all of the records. And as the story in the public domain has stated, these are the records that the Library of Congress, the Rusher records, those records and others at the library at Princeton give no indication that Judge Alito was among the group's major donors. He was not an active leader of the group.

And two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role.

Well, the obvious thing to do is to call Mr. Rusher, which Mr. O'Neill did over the lunch hour. And Mr. Rusher said he'd be glad to have us look at his records and that he'd received a request from Congressional Research Service, but it was from an unnamed requester, and he declined.

But he said, had he received a request from Senator Kennedy or some member of this committee, he would have made the records available.

So, in Senator Kennedy's absence, I asked a staffer to tell him that we had moved ahead with it; I didn't want waste any time.

And Mr. O'Neill has contacted Senator Kennedy's staffers and they are en route or at the Library of Congress to look at these records so that we can confirm what the "New York Times" David Kirkpatrick has had to say.

I am just a little puzzled at the issue being raised in this manner. We talk all the time. And I'm just a little surprised that Senator Kennedy hadn't talked to Senator Leahy or hadn't talked to me before he made a request for access to the Rusher records, talks about a subpoena, talks about a ruling of the chair, talks about overruling the chair -- just a little tussle.

But the substantive matters are being attended to. And I share Senator Kennedy's concern that we have all the facts, all the facts, all the facts. And this is a lifetime appointment, it's a matter of tremendous importance, and I wouldn't want to find on some occasion that something comes to light which would bear on this nomination that we could have found out had we had been more vigilant.

Senator Kennedy?


I welcome the fact that we're going to have the access to those records.

The fact remains, I didn't anticipate -- I thought that since this was a major issue on the 1985 application of the nominee for a new job, this membership with the Federalist Society and the CAP organization, I thought as a matter of routine that we'd have access to those records.

And it was a letter to you, as we would do, with follow up with the staff, which is the usual procedure here. I regret I haven't been down in the gym since before Christmas...


... so I missed you down there.

But the important fact is we're going to get that information. I think that's what's extremely important.

And, quite frankly, if we had been able to get what I think were more responsive answers by the nominee during the course of the exchange today, I don't think probably it would have even been necessary.

But I don't think you'll be able to look through transcript of the exchanges that we had with the nominee and not feel that we have an important responsibility to follow up.

So I'm grateful we will have that chance to follow up. And look forward to the further considerations of evaluation of the material and further considerations of the hearing. Enough said.

Senator Leahy, you have a unanimous consent request?


Mr. Chairman, as I had understood, we'll be going back to another round. So if I misunderstood, you'll be sure to correct me.

But as I understood Judge Alito, he saw no connection between his unified executive theory and the use of presidential signing statements. In fact, the Wall Street Journal reports the president has cited the unitary executive 103 times in presidential signing statements. So I'd like to put that article, some articles from the Post and the Globe relevant. In fact, the Defense bill, McCain torture amendment he specifically employed and I'd like to make that part of the record.

SPECTER: Without objection, those documents will be made a part of the record. Senator DeWine?

SEN. MIKE DEWINE (R), OHIO: Thank you, Mr. Chairman.

BLITZER: All right. So, we're going to break away from the hearing once again to digest what we just heard, a big commotion about an-hour-and-a-half or so ago, commotion that has been resolved, at least for the time being.

Jeff Toobin and Jeff Greenfield are here.

We sort of foreshadowed the -- "The New York Times" article, the reporter David Kirkpatrick having gone through these documents. And now the chairman, Arlen Specter, who says he, over the Christmas break, had not focused in on Senator Kennedy's request, they have now worked it out. They have resolved it. And they're going to go through these four boxes of documents to see what, if anything, pertaining to the judge may be included in there.

Is it over with, then?

GREENFIELD: Unless there is something in one of those four boxes that was -- that Mr. Kirkpatrick overlooked and that the custodian of these records overlooked, yes.

TOOBIN: I -- I...

GREENFIELD: It's over.

TOOBIN: I think the most nervous person in America right now is Kirkpatrick, because everybody knows he went through these. He didn't find anything sensational. If something sensational is found, he is going to have to do some explaining to his editors.

But I -- I think that's extremely unlikely. And this crisis, to the extent it's a crisis, or even a controversy, is likely to fade quietly away.


BLITZER: The -- the question still hovering over all of this is, how could such a smart guy like Samuel Alito put down membership in an organization 20 years ago, in 1985 -- he was 35 years old at the time -- and have no recollection whatsoever of this organization, which had become a lightning rod, had become a subject for news articles, as several of the senators pointed out in "The Wall Street Journal" and elsewhere.


GREENFIELD: In this article by David Kirkpatrick, while it suggests that Judge Alito had no particular involvement, it does not paint Concerned Alumni for Princeton as simply a group that was concerned, say, with the elimination of ROTC on campus.

It was a -- it was -- it was a group that had real problems with the changing demographics of Princeton, didn't like the idea of this many women on campus, didn't like the idea of affirmative action, or, for that matter, the replacement of the -- quote -- "traditional Princeton environment," you know, didn't want all-male eating clubs abolished.

So, there is stuff in there that -- that -- that would be embarrassing, if they could -- if somebody could find a bigger connection. And you're quite right. I mean, I don't -- I was trying to think about this.

You know, if somebody -- let's say, Wolf, if you were up for a judgeship, which I'm sure would be a great idea, you know, and when you put down and you were -- you were lobbying for a group with a particular political ideology, what -- you know, what would you go back to your college days or your alumni days and say, well, yes, this is what I was a member of without knowing anything about the group?

TOOBIN: And I actually think Senator Biden made this point pretty well in his last round of questioning.

He said, you know, this seems out of character for you, because, you know, there are a lot of young lawyers who are involved in a lot of different organizations, political campaigns, advocacy organizations. Alito was not one of those. He is not someone who has been involved in a lot of this kind of thing.

But he was active in this Princeton organization, and -- and there doesn't seem to be much of an explanation. It might just be one of those weird facts that just kind of hangs out there of no particular significance. But you can see why the Democrats are interested in it.

BLITZER: All right, we are going to continue our coverage of the Samuel Alito confirmation hearings. We will go back to the Hill.

We're also going to check all the day's other news. There are developments out in West Virginia, the aftermath of that mining disaster. There is a developing story out there. We will brief you in -- fill you in on that as well.

Remember, uninterrupted, you can watch these hearings, Go there, if you want to watch it on your desktop or your laptop.

We will take another quick break. We will be right back.


BLITZER: We are going to continue watching what's happening before the Senate Judiciary Committee, the confirmation hearings of Samuel Alito. We will got back there very soon.

But we don't want to neglect other important news happening right now.

Kyra Phillips standing by at the CNN Center.


We want to get straight to a news conference that is happening right now with the International Coal Group in West Virginia. The CEO of the ICG, Ben Hatfield, is speaking to reporters right now, talking about the compliance record of the Sago Mine.


BEN HATFIELD, PRESIDENT & CEO, INTERNATIONAL COAL GROUP: Our focus on mine safety is readily apparent when one compares the first half of 2005, prior to ICG responsibility, with the second half of 2005.

Comparing those two six-month periods, the lost-time injury rate dropped by nearly 60 percent. With respect to the number of safety violations issued at the Sago Mine, it is true that MSHA issued approximately 202 violations during 2005, the majority of which occurred during the second half of the year.

A number of those violations have been challenged by the company, and many remain open to challenge. We believe the high number of violations is attributable to a significant increase in enforcement standards by the MSHA inspectors that examined this mine virtually every day.

In fact, the number of MSHA inspection days at the Sago Mine increased by 31 percent during the second half of 2005. These trained mine professionals would certainly not have allowed the continued operation of a mine that they believed to be unsafe.

While the tragic events of last week confirm that we must be ever vigilant on mine safety, the trend of improvement at the Sago Mine demonstrates, without question, that our management team was aggressively focused on mine safety and protecting our people.

Although it's far too early to determine what areas of potential improvement will be flagged during the Sago Mine accident investigation, we believe this terrible series of events will motivate the entire coal industry to identify and implement significant improvements in mine safety through improved technologies.

Within 48 hours of concluding the rescue efforts, our company convened a meeting of top managers to identify areas of cutting-edge technology advancements that may better protect our coal miners from a similar disaster in years to come.

It's possible that recent advances in wireless communications technology and longer-duration breathing apparatus not previously deployed in the coal industry could be incorporated into future underground mine rescue plans.

We must learn lessons from the incredibly sad outcome of the Sago Mine explosion that will protect future generations of coal miners for years to come. That will be our company's commitment to the families of the 12 Sago victims.

Thank you. And I will now take a few questions from the press.


HATFIELD: On the front row.



QUESTION: ... that mine was cited for unsafe conditions three weeks before the explosion occurred, that at least 17 of the citations (OFF-MIKE) from last year were un -- were for unsafe conditions (OFF- MIKE)

HATFIELD: Again, the definition of what's an unsafe condition is often at the discretion of the mine inspector and the situation at hand.

And I cannot stand here and defend the details of 200 violations or three violations. But we do know that there were violations for accumulations of combustible material. And for the layman to better understand that, that simply means spilled coal. That means, coal that spilled off of equipment and conveyers sometimes accumulates, and coal mines get cited for it.

Yes, it is certainly appropriate to cite a coal company when they make that kind of mistake, and it is our duty to clear it up. But we have heard nothing in the course of all this debate about the safety violations that even remotely connects with the current assessment of what is likely the cause of the explosion.

So, we don't see a connection between that history and -- and, indeed, where we are today.

PHILLIPS: Ben Hatfield, the CEO of International Coal Group, addressing -- or talking with reporters right now after holding a briefing recognizing that the Sago Mine, indeed, had 202 violations in the year of 2005.

But he also said, at the end of the year, that inspections were on the rise as well in the Sago Mine. He also says that, if the mine was believed to be unsafe for workers, it would have never opened up at the start of the year.

But taking a look at what has happened, he says they are working already on significant improvements from safety, mine safety, talking about cutting-edge technology that's now being discussed to better protect the miners -- one example, better breathing apparatus.

And just a real quick update, too, on something that CNN has been able to confirm through various sources, that the trapped coal miners not only could have walked less than a half-a-mile to breathable air, but there was also a nearby oxygen tank normally used with a welding torch.

The sources say that the miners may not have thought about the tank. And they add that it's not clear how much oxygen was in the tank at the time.

As you may remember, 12 men died on -- on than January 2 explosion at the Sago Mine in West Virginia.

Wolf, we are going to keep monitoring what Ben Hatfield has to say and bring you more information, as he continues to talk about safety and answer reporters' questions.

BLITZER: Thanks very much, Kyra. And we will get back to you as we get more information.

We are going to continue our coverage of the Samuel Alito confirmation hearings. He's answering questions right now from Republican Senator Mike DeWine -- up next, Democratic Senator Dianne Feinstein, the only woman member of this committee. We will go back there live.

Remember, you can watch all of it uninterrupted, You can watch it on your desktop or your laptop uninterrupted.

We will be right back.


JUDGE SAMUEL ALITO, SUPREME COURT JUSTICE NOMINEE: ... think some other states view it that way. And that's a competing way of looking at this -- at looking at this problem. An important principle -- where I have dealt with this in my cases, as I can recall, is the issue of freedom of speech in a limited public forum. And even in a limited public forum, what government cannot do is engage in viewpoint discrimination.

If the government opens up a particular forum for discussion of a particular subject, you can't say, "But we're only going to allow people who express this viewpoint and not another viewpoint."

Viewpoint discrimination really goes to the heart of what the First Amendment is intended to prohibit, so that even in a limited public forum, where people are restricted with respect to what subject that they can talk about, government can't impose a viewpoint discrimination.

DEWINE: Well, it just seems to me, Judge, that we could talk about this issue all day, and we're not going to, obviously, but that there is a shrinking public forum, and the opportunities many times are going away.

I guess you could make the other argument that because of modern technology, there are other opportunities, with the Internet, et cetera, that they are opening up for people to communicate and to make their point well known.

But a lot of the places that people historically have talked and made their point well known are shrinking. You talked about the malls, which certainly in most states are totally off limits to any kind of display of that kind of debate.

Let me turn to commercial speech, if I could. Under current law, commercial speech is protected by the First Amendment, but it has never had the same level of protection as other forms of speech, such as political speech. The difference in treatment has puzzled a number of commentators and judges.

In reviewing your cases, I noticed that you are certainly familiar with the issue of commercial speech. In Pitt News case, for instance, you struck down a Pennsylvania statute that barred paid alcohol advertisements in newspapers affiliated with colleges and universities.

Let me ask you, Judge, based on your experience with this and other cases, what is your view about the distinction between commercial speech and noncommercial speech, and is there a common- sense difference between these two types of speeches? And have you found that case law supports any distinction? And how, if confirmed, will you approach the so-called commercial speech claims under the First Amendment?

ALITO: Well, there's a debate about how much protection commercial speech should have.

There are those who argue that the distinction between commercial speech and noncommercial speech should be eliminated. The Supreme Court views commercial speech differently. And while it is strict about any limitation regarding accurate information about prices it limits, it permits greater restriction of commercial speech under current case law than it does with respect to other types of speech.

And the theory, as I understand it, is that commercial speech is more durable. At least that's part of the theory. In other words, there's such a great incentive for people who are selling things to engage in advertising and other forms of commercial speech that it's less likely to be driven out than speech on other issues where the financing may not be as extensive.

In the Pitt News case, what I had to apply was the question of whether there was sufficient tailoring.

There was a compelling interest for what was done there, which was to restrict advertising about alcohol in a publication that was affiliated with an educational institution. But based on the facts there, it just did not seem to be tailored at all.

This was a newspaper that, I think, 75 percent of the people who received it in its connection with the University of Pittsburgh, were people over the drinking age.

And maybe even more to the point, this publication was distributed free on campus and in newspaper boxes next to a number of others that contained commercial publications.

And they both advertised establishments and events in the area of the university. And the others were full of information about alcoholic beverages and those were free too.

So while the problem of underage drinking and abusive drinking on college campuses is a very serious issue, and the Pennsylvania legislature recognized that and we certainly didn't question that -- it is an issue of critical importance -- it seemed quite unrealistic to think that this regulation, which only applied to the Pitt News and not to these other publications, was tailored sufficiently.

DEWINE: I thank you, Judge.

Interesting set of facts. I thank you, sir.

SPECTER: Thank you, Senator DeWine.

Senator Feinstein?


I want to try one more time.

First of all, let me just say this. Senator Durbin said that Justice Roberts retired the trophy on performance.

If that's true, you've retired it on equanimity. I really think you're to be congratulated.

This is this morning's Washington Post: "Alito says he will keep an open mind." But what concerns me -- and obviously this is on Roe -- is that despite 38 tests, despite 33 years, despite the support of a majority of America, you also said yesterday that, "precedent is not an inexorable command." And those are the words that Justice Rehnquist used arguing for the overturning of Roe.

So my question is, did you mean it that way?

ALITO: The statement that precedent is not an inexorable command is a statement that has been in the Supreme Court case law for a long period of time. And sitting here, I can't remember what the origin of it is, but I would bet that it certainly has been used in cases in which the court has invoked the doctrine of stare decisis and refused to go ahead and overrule.

FEINSTEIN: I always believe everything I read in The Washington Post.


ALITO: Well, that is an important principle.

(LAUGHTER) FEINSTEIN: I don't know about that one, but...

ALITO: And I -- not the principle of believing everything in The Washington Post, but the principle that stare decisis is not an inexorable command, because then we would be stuck with decisions like Plessy and they couldn't be overruled except through a constitutional amendment.

But when an issue is one that could realistically come up, the people who would be making the arguments on both sides of the issue have a right to have a judiciary of people with open minds. And that means people who haven't announced in advance what they think about the issue and, more importantly, people who are not going to reach a conclusion until they have gone through the judicial process.

And it's not a facade, it's not a meaningless exercise. It's a very important one.

FEINSTEIN: Let me try this: I'd like to read a line of questioning, of questions, that Senator Specter asked now-Chief Justice Roberts. And then I would like to ask this question: How do you disagree with this?

Here's the questions: Specter: "Judge Roberts, in your confirmation hearing for the circuit court your testimony read to this effect, and it's been widely quoted. Quote, 'Roe is the settled law of the land,' end quote. Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?"

Roberts: "Well, beyond that. It's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes."

Specter: "You went on to say then, quote, 'It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision, so it has added precedental value.'"

Roberts: "I think the initial question for the judge confronting an issue in this area, you don't go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding."

And Specter says: "And you went on to say accordingly, 'It's the settled law of the land," using the term 'settled' again."

And then your final statement as to this quotation: "There's nothing in my personal views that would prevent me from fully and faithfully applying the precedent as well as Casey."

Where do you differ? Since Justice Roberts made that statement in a confirmation hearing -- he not only got confirmed, he's the chief justice -- it seems appropriate for to you comment on it and say where you might differ with it. ALITO: Well, the statement covers a lot of ground. And let me try to remember the major points. I certainly agree with the point...

FEINSTEIN: I can give it to you if you'd like?

ALITO: Certainly. I'd be happy to.

FEINSTEIN: Would that be helpful? Would somebody take it down to him? Show him the place.


(UNKNOWN): Be on the front page tomorrow?


ALITO: Well, Senator, I certainly agree with the point that the chief justice made about separating any personal views he has from anything that he would do as a member of the Supreme Court. I emphatically agree with that. That's the essence of what a judge has to do.

I certainly agree that Roe and Casey and all of the other decisions in this line are precedents of the Supreme Court. And they are entitled to respect under the doctrine of stare decisis. To the extent that some of the earlier decisions have been modified, then obviously the most recent ones are the relevant provisions of the Supreme Court.

I've agreed, I think, numerous times during these hearings that when a decision is reaffirmed, that strengthens its value as stare decisis. I agree that when the Supreme Court entertains a challenge to a prior decision and says, "We're not getting to a re-examination of the merits of the issue, we think stare decisis counsels against our going to that point," then that is a precedent on precedent. That seems to me to be entirely logical.

And we have a long line of precedents now relating to this issue. I have said that stare decisis is a very important legal doctrine and that there is a general presumption that decisions of the court will not be overruled. There needs to be a special justification for doing it, but it is not an inexorable command.

FEINSTEIN: But you do not agree that it is well settled in court?

ALITO: I think that depends on what one means by the term "well settled."

FEINSTEIN: I actually agree with you because others have said that and then gone out and voted to overthrow it. So it's like, "I have no quarrel with it."

ALITO: Well, let me just say this: As a judge on the court of appeals or if I'm confirmed as a justice on the Supreme Court, it would be wrong for me to say to anybody who might be bringing any case before my court, "If you bring your case before my court, I'm not even going to listen to you; I've made up my mind on this issue; I'm not going read your brief; I'm not going to listen to your argument; I'm not going discuss the issue with my colleagues. Go away. I've made up my mind."

That's the antithesis of what the courts are supposed to do. And, if that's what "settled" means, then I think that's not what judges are supposed to do. We are...

FEINSTEIN: Let me interrupt you for a moment, if I may.

You were willing to give your view on one man, one vote. And yet there are four case pending in the court right now on one man, one vote.

And that's where I have a hard time. The cases are LULAC v. Perry, Travis County v. Perry, Jackson v. Perry and G.I. Forum of Texas v. Perry.

That's where I have a hard time. If you're willing to say that you believe one man, one vote is well settled and you agree with it, I have a hard time understanding how you separate out Roe.

I understand why. If you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know.

ALITO: I don't think it's appropriate for me to speak about issues that could realistically come up.

And my view of Brown v. Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged, not within the legitimate scope of constitutional debate any longer that there should be facilities that are segregated on the basis of race.

And that's where I've tried to draw the line. If an issue involves something that is in litigation, then I think it's not appropriate for me to go further than to say that I would be very respectful of the doctrine of stare decisis and I would not reach a decision on the underlying issue if one were to get to it without going through the whole decision-making process.

FEINSTEIN: OK, I'll let you off the hook on that one. One of the reasons that some of us are so concerned about commerce clause is because we see major law being overturned if the Rehnquist court...

BLITZER: All right, we're going to take a quick break from the hearings. Remember, you can always watch it uninterrupted. Go to We're showing it all to you. You can go on your desktop, your laptop and watch it on Pipeline, CNN's newest feature,

We'll take a quick break, we'll digest what we've just heard, we'll follow what's happening elsewhere around the United States, around the world, update you on all the news, go back to the hearing. Much more of our coverage right after this.


BLITZER: We'll get back to the confirmation hearings of Samuel Alito momentarily, but we want to check in with CNN's Kyra Phillips. She's watching all the news around country and around the world -- Kyra.

PHILLIPS: Thanks again, Wolf.

Serious and stable, with slight improvement. A brief update from Hadassah Hospital on the status of Ariel Sharon. As you may know, today marks a week since the 77-year-old Israeli prime minister suffered a bleeding stroke that necessitated three emergency operations. He's still being weaned off sedation ever so gradually, and it's still too soon to know whether and how much of his cognitive abilities are compromised.

After what he said about Mr. Sharon, the Israeli Tourism Board has told Pat Robertson to get lost. He's among a group of evangelical Christians who promised to raise nearly $50 million for a large Christian center in Gallilea. But Israelis are appalled at Robertson's comments last week suggesting that Mr. Sharon's stroke was God's way of punishing the Israeli leader for pulling Jewish settlers out of Gaza. Well, Israel's tourism minister says if Robertson has anything more do with the proposed center, the project will just be canceled.

Tight security in place today at the Muslim pilgrimage known as the hajj in Mecca, Saudi Arabia. Two and a half million people joined in the pilgrimage, with thousands hurling pebbles as symbols of going at the devil on the second day of the sacred ritual. The stoning has often been marred in the past by stampedes, which have left hundreds of people dead. That pilgrimage lasts five days.

Alaska's Mount Augustine is putting on a show today. Look at this volcano erupting early this morning, shooting a plume of ash 28,000 feet into the sky. Mount Augustine last erupted 20 years ago. It's located about 180 miles southwest of Anchorage in an uninhabited island. Flight advisory has been issued in the immediate area, but a meteorologist doesn't expect the plume to affect air traffic in and out of Anchorage.


PHILLIPS: All right, Jacqui, thank you so much. We want to take you straight to New Orleans now where Mayor Ray Nagin, he's listening to a lot of upset residents right now as he's talking about his commission that's presenting a master plan now for rebuilding New Orleans. A lot of people unhappy with this plan. Let's listen in.

UNIDENTIFIED MALE: ... within the next six months. But after listening to what is a very marvelous academic exercise, I have real doubts. I wonder about a light rail system when we can't even get the streetcars on St. Charles Avenue to run. Very simply, I would urge the members of this commission to come to Lakeview on a Sunday. Go to St. Dominic's. Tell this to more than 1,000 people that attend mass at that church every Sunday that they are going to have to put their lives on hold.

PHILLIPS: We apologize. We lost the connection there to New Orleans. But you were hearing from one resident, obviously unhappy with this plan. OK, I'm told we are reconnected. Let's listen in.

UNIDENTIFIED MALE: ... not solve problems, it funds them. Please let us build our homes. Let us come back on our own timetable. Let us spend our insurance money which we paid for without any federal subsidy.


UNIDENTIFIED MALE: Albert Clark (ph), Sherman Copelad (ph), Mr. Well Asonet (ph) and Deborah Cotton (ph).

UNIDENTIFIED MALE: My name is Albert Truitt Clark (ph). I'm here to represent three groups, one of them neighborhood unity, one of them is merge mobilization and racism and government everywhere. Another is the POCC, Prisoners of Conscience Committee. Again, we remember when Joe Canazera (ph) and Paul Balija (ph) came to our community proposing the same scheme, no-good rotten scheme. A no-good rotten scheme. And the man, if you would have the guts to admit, you reject it. You didn't. Accept it then, you sit and accept it now.

PHILLIPS: New Orleans residents continuing actually to debate Mayor Ray Nagin's bringing New Orleans back commission proposal. It's a master plan for rebuilding New Orleans. We're going to continue to monitor this.

You can also go on to and watch this ongoing debate with the mayor and lead officials there, talking about urban planning, education, cultural activities, health and social services, infrastructure. You can just imagine the list when it comes to economic development and reworking the city there.

A lot of residents still feeling that the mayor doesn't understand the present needs right now. One resident saying this sounds like a great academic exercise, but there are still a lot more things to talk about when it comes to bringing residents back into that city.

Wolf, we'll continue to monitor it. And like we said, you can also go on to and watch it live as it continues to unfold.

BLITZER: Multiple feeds coming in to for our viewers out there. An excellent tool if you want to go to your laptop or desktop for all the latest video coming in live.

We're going to take another quick break. When we come back, more of our coverage of Samuel Alito, his confirmation hearings before the Senate Judiciary Committee here in Washington continuing. You're in THE SITUATION ROOM.


BLITZER: Welcome back. We just heard a series of questions from Dianne Feinstein, Democratic senator from California, before the Senate Judiciary Committee. Questions on abortion, Roe vs. Wade, questions to Samuel Alito, the Supreme Court nominee.

Jeff Greenfield, Jeff Toobin are here to digest what we just heard. What she was trying to do, she read all the questions that Senator Specter asked John Roberts, the Supreme Court chief justice now during his confirmation hearings to see if he would say -- Alito would say exactly what Roberts would say. And he stopped short.

GREENFIELD: Which is interesting. There is -- what Senator Specter called a minuet that goes on in general. And here, the minuet is Dianne Feinstein is trying to separate out John Roberts, who even though she voted against him, he got 78 votes from Alito.

The implication there is, "I can't be as sure -- I can't be confident in what Judge Alito might have to do about abortion. I'm even less confident about him than I was about John Roberts." And Roberts would not echo word-for-word what -- I'm sorry, Alito would not echo word-for-word what John Roberts said. And in my view, Jeffrey may have a different one, when you keep coming back to the point that Roe vs. Wade is a precedent entitled to respect and go no further, you haven't said anything.

TOOBIN: Well, you haven't said nothing. I mean, I think that does suggest a certain respect in the -- and unlikelihood of overturning. I mean even if you believe a case should be overturned, it is not something the court does often or lightly. But it did seem like Alito was less likely than Roberts to embrace Roe vs. Wade, although it is worth mentioning, Roberts has been on the court for all of three or four months.

He's had no opportunity to rule on a case related to Roe v. Wade, so it's not like we know where he stands for real, either. But it did sound like Alito was less likely to embrace Roe than Roberts was.

BLITZER: I've received a bunch of e-mails just from viewers out there who ask this question in shorthand: Is Alito more conservative than Roberts?

TOOBIN: I think if you go on their history, the answer is likely yes. I think the confirmation hearings, his testimony has been so opaque and limited that it's hard to say much of where he stands.

I think John Roberts, in his history, had less outspoken conservative views. And in his confirmation hearings also expressed certain views about his theory of interpretation. He said he was not an originalist, didn't believe in following what the original intent of the Constitution, which is what Justice Scalia and Justice Thomas do.

There were signs -- and maybe they were just misleading signs -- but signs of moderation that we heard from John Roberts that we did not hear from Judge Alito. But it's pretty subtle and I could be completely wrong.

BLITZER: And also important to note that Roberts had much less of a paper trail than Alito.

GREENFIELD: Exactly. What you don't have from John Roberts, and the reason why I think there was such increased focus on Alito, is that now-famous, at least among some of us, job application where he goes out of his way to say, I'm a conservative, I've always been one, I like Goldwater, I -- this is what he said -- I'm a member of -- right. I read "National Review," I really don't like the Warren court and its opinions on -- and I'm proud of my personally strong convictions that Roe ought to be overturned.

There is nothing like that in the paper trail of John Roberts. All there is in his case is, he was employed by Republican administrations and basically is a conservative. So you can -- I had a conversation with somebody who was very close to the anti-Alito people last night. And what has surprised them was -- when you go all way back to O'Connor's resignation and they had a list of who they thought they could block, Roberts was never on that list, because his credentials were too stellar and his politics were sufficiently subtle.

Alito was one of the people, along with, say, Janice Rogers Brown, now on the federal court, Priscilla Owens, who they thought they could stop. And I think it has surprised some among the liberals that there hasn't been this groundswell, this passion, to stop Alito as there was, say, a Bork and Clarence Thomas on the liberal side.

BLITZER: All right. Let's go back to the hearing. We'll continue this. William (sic) Sessions, Republican of Alabama, questioning Alito.

SEN. JEFF SESSIONS (R), ALABAMA: ... interview questionnaires that they did on you among those who know you well. And this is what they put in their conclusion.

Conclusion: "We accept his explanation and do not believe these matters reflect adversely on him." Talking about those conflicts allegations.

They go on to say: "To the contrary, consistent and virtually unanimous comments from those interviewed include, 'He has utmost integrity,' 'He's a straight shooter,' 'Very honest and calls them as he sees them.'" These are quote from different lawyers and judges.

"His reputation is impeccable." "You could find no one with better integrity." "His integrity and character are of the highest caliber." "He is completely forthright and honest." "His integrity is absolutely unquestionable." "He is a man of great integrity."

And then they conclude: "On the basis of our interviews with Judge Alito and with well over 300 judges and lawyers and members of the legal community nationwide, all of whom know Judge Alito professionally, the Standing Committee concluded that Judge Alito is an individual of excellent integrity."

So congratulations on that finding.

Judge Alito, many important decisions of the Supreme Court in recent years touch on the deepest values of the American people. They deal with things like Kelo and the property that they own, matters of faith and morality, decency and pornography.

Do you have a sense of where the American people are with regard to these issues? Can you indicate to us that you have any appreciation for legitimacy of some of those concerns?

ALITO: Well, I do, Senator.

SESSIONS: Regardless of the technical laws it involves, but just that fundamental policy.

ALITO: I think I have an appreciation of people's concerns -- certainly with respect to Kelo, which is a recent decision and I can't comment on how I would rule on any matter concerning that; and it involves the power to take property for public use through eminent domain.

I certainly understand that what occurred in that case which, as I understand it, was the taking of the homes of people of modest means for the purpose of building a large commercial facility that was thought by the city to be beneficial to the economic welfare of the city, that this is an enormous blow to the people whose homes are being taken.

People live in homes and they have a sentimental attachment to them. They have memories that are attached to the homes. They can remember what happened in particular rooms. The neighborhood means something to them. The neighbors mean something to them. The things in the home mean something to them.

And taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people.

So I certainly can appreciate what they feel in that respect.

SESSIONS: Well, let's talk about that a little bit, because this is a matter of real power and it's a matter that the Congress gets drawn into sometimes whether we want to be drawn into it or not.

We've discussed Roe v. Wade. People remain concerned about that. The polling numbers continue to drift against that decision.

We talk about the district court opinion. I believe Senator Brownback raised federal court on marriage, on redefining the traditional statutory definition of marriage contained in states and in state constitutions around the country.

In Kelo, it's pretty clear to me that the court just changed the meaning of the words.

The Constitution said you could take property for public use. The court felt that was too restrictive, basically, and a majority just changed it to say you could take property for a public purpose, which includes some private redevelopment of the area in their minds.

See, that's not founded in the Constitution. That's an overreach, in my opinion.

On the Pledge of Allegiance case, the Newdow case, the 9th Circuit, which includes 40 percent of the people in the United States, ruled that the Pledge of Allegiance was unconstitutional.

The Supreme Court sort of sidestepped the fundamental issue and said that there was not standing on behalf of ...

BLITZER: All right, we're going to break away. Senator Jeff Sessions. I misspoke before, I called him William Sessions. Apologies to Jeff Sessions. He's going to be joining us, by the way, live in the next hour here in THE SITUATION ROOM.

We're going to continue our coverage. You can always go to if you want to watch this hearing uninterrupted. Much more of our coverage, the Alito confirmation hearings, right after this.




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