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CNN Live Event/Special

The Alito Hearings

Aired January 12, 2006 - 10:59   ET


DARYN KAGAN, CNN ANCHOR: We are updating a story that we're following out of Saudi Arabia. Hundreds of Muslim worshipers have been killed in the annual Hajj pilgrimage in Mecca, Saudi Arabia. Officials in the Saudi Health Ministry tell CNN that 345 people are dead and nearly 300 more are hurt.
Witnesses say there was a stampeded during the ritual stoning of a symbolic devil. A similar stampeded broke during the same ritual two years ago.

Back here in the U.S., check out this. Whoa. That is a mudslide caught on tape.

The rock and debris slide has closed the historic Columbia River Highway in Troutdale, Oregon. Engineers say the hillside above the highway is just too unstable. The highway will reopen when the hillside stabilizes and the debris can be removed. The area is known for mudslides after heavy rains.

Three children were killed in a fire that raced through their New York City apartment last night. The victims were a 16-year-old boy and his 9-year-old and 3-year-old nieces. Witnesses say the teenager was shouting out of the window for help, saying he couldn't breathe.

It took 138 firefighters about an hour to control this blaze. At least seven firefighters suffered minor injuries as well.

Help may be closer than they thought for the 12 men who were killed at the Sago Mine. Government officials involved in the investigation tell CNN an oxygen tank was stationed near the miners that might have given them more breathable air. Officials say in the aftermath of the explosion, the miners may have forgotten about the tank.

And the lone survivor of the Sago Mine disaster got a visit from one of his favorite singers. Hank Williams, Jr. stopped by the West Virginia hospital where Randal McCloy, Jr. is in critical condition. Williams said he once had a near-death experience himself when he fell hundreds of feet down a mountainside. He said being visited by his favorite performers meant a lot to him at the time.

And speaking of favorite performers, fans of the late singer Lou Rawls have a final opportunity to pay their respects. The public viewing will be held this afternoon in Los Angeles. Seventy-two-year- old Rawls died of cancer last week.

His funeral, Wolf, is set for tomorrow in Los Angeles. Back to you.

WOLF BLITZER, CNN ANCHOR: He was a great singer. I loved Lou Rawls.

Thanks very much, Daryn, for that. We'll get back with you soon.

We're monitoring the hearings of the Supreme Court nominee, Samuel Alito. They're in recess right now. They've taken a little break, they're going to be resuming the questioning coming up.

Bob Franken is on the scene for us.

Bob, it's -- by my estimate, it doesn't look like there's a whole lot of other senators who have any questions left for Samuel Alito.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, they'll use all the time. It's a law of nature that senators will use all the time that they have.

And what they're doing is repeating a lot of the issues that they've discussed before. It could be probably described as a battle of attrition, covering such areas as Judge Alito's views on presidential power -- the Democrats have tried to make an issue out of that -- revisiting his mistake when did he not recuse himself. That is to say, disqualify himself from hearing a particular case because of some business conflicts. Talking a little bit more about his membership in the Princeton alumni association that the Democrats say was really resistant to women and minorities getting on to the campus.

This has all been an area that has been covered before, but they're taking one more shot at it. What's going to happen is probably, hopefully before noon, hopeful in part of the chairman's point of view, anyway, they will run out of steam, they'll exhaust their questions.

This afternoon, we're going to have a series of panels, mostly law professors and other lawyers, talking pro and con about Samuel Alito. Then there's going to be the panel of seven judges associated with his court of appeals in Philadelphia. That will include mostly judges who were appointed by Republicans, a couple of Democrats, expected to say nice things about Judge Alito.

Many Democrats say that that's not necessarily the right thing to do, because these judges could have appeals that go before a Supreme Court with a Justice Alito on it, and that might be an inherent conflict of interest.

So, we're going to have a little controversy throughout, even in that part of the hearing which is usually quite quiet, to put it mildly.

BLITZER: Bob Franken reporting for us from the hearing room.

Thanks, Bob, very much.

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

And we did check. We checked with the White House to see if there is any precedent where sitting federal judges have been asked to testify on behalf of a Supreme Court nominee. And we got a one-word response...




BLITZER: No precedent as far as a sitting -- sitting judges, federal judges for a Supreme Court nominee. So they're going to be breaking -- they're going to be breaking some new ground.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: We've been waiting with baited breath for this precedent to be broken.

BLITZER: We did get some news right at the top of the hearings this morning, when the chairman, Arlen Specter, announced that the committee staffers, Democrats and Republicans, went through four boxes of documents at the Library of Congress on this controversial organization, Concerned Alumni of Princeton, and found absolutely no mention of Samuel Alito.

Here's what the chairman had to say.


SEN. ARLEN SPECTER (R-PA), CHAIRMAN, JUDICIARY COMMITTEE: Judge Alito's name never appeared in any document. His name was not mentioned in any of the letters to or from the founder, William Rusher. His name was not mentioned in any of the letters to or from CAP's long-term executive director, T. Harding Jones.

His name does not appear anywhere in the dozens of letters to CAP or from CAP. The files contain canceled checks for subscriptions to CAP's magazine "Prospect," but none from Judge Alito. The files contain dozens of articles, including investigative expose written at the height of the organization's prominence, but Samuel Alito's name is nowhere to be found in any of them.

The Rusher files contain lists of the board of directors, the advisory board and the contributors to both CAP and "Prospect" magazine, but none of these lists contains Samuel Alito's name.


BLITZER: The chairman of the committee, Arlen Specter, giving the report on what they found or didn't find in those four boxes. William Rusher was the publisher of the "National Review," a conservative publication, one of the founders of this group, Concerned Alumni of Princeton University.

It still begs the question, why did he list this organization on that job application 20 years ago to serve in the Reagan Justice Department?

GREENFIELD: I have to say, I don't think this is any mystery at all. He's applying for a job in an administration where movement conservatives have a lot of significant roles. And he was asked specifically, give us a sense of your philosophy.

Well, what do you do? You try to figure out every connection you have to conservative causes and movements.

I have a Goldwater button. You know, I -- Bill Buckley was my god. And so you look at, well, what did I join?

Well, here's an organization that was formed in opposition to -- one way to put it, to the liberal movement of particularly ivy league universities. He says, yes, I was a member of that, that will impress them. That will show them I'm a conservative.

TOOBIN: Well, I mean, that may be obvious to you, but that wasn't Alito's answer. I mean, Alito really brought this problem on himself into this whole Princeton issue because did he put the list -- the name on the list. And then he said he just had absolutely no memory of it, which is peculiar.

I mean, I think most people, if they tout their membership in an organization, they at least have some idea what they did. So I think, you know, yes, it seems established beyond doubt that he was a minor, minor playing in this organization, but, you know, the fact that people have to go look into it, it's not the senators' fault, it's Alito's fault.

BLITZER: And I've checked with a lot of Princeton alum from that time who say, you know what, there was a lot of commotion among Princeton University students and graduates, alumni, about this organization. It wasn't some tiny, little obscure organization. There was a lot of buzz going on.

GREENFIELD: There was a whole -- if I can use the term "culture wars," which really broke out in the late '60s, the backlash to what happened at a lot of campuses, the anti-Vietnam protest, sex, drugs and rock 'n' roll, various other movements, conservatives said, wait a minute, you know, we don't like where this is going.

And it took a whole lot of forms, whether it was protesting the removal of ROTC, protesting affirmative action, protesting the emergence of gay rights groups, all of that. It's a major story of that time.

And I think Jeffrey is exactly right. I mean, I think, frankly, somebody told Alito, what's the best explanation for why you joined this group? Well, because they were trying to protect ROTC and, after all, most of all, most Americans are pro-military, not anti-military.

I believe -- I'm speculating, I admit it, but I'd bet serious money on it, the real explanation is, I have to prove I'm a conservative, and I am. I'm a proud conservative, and here's -- that's why he said, I'm proud -- I'm proud of my role in arguing for the reversal of Roe versus Wade.

If you knew 20 years ago that you might be up for a Supreme Court nomination, maybe you wouldn't put it quite that way. But that's not what he was up to in '85. He was looking for a job in Ronald Reagan's administration.

BLITZER: And Ed Meese was the attorney general.

GREENFIELD: Yes. And, you know, if there were a liberal president, I think, recruiting, I think a prospective nominee would say, I'm proud of my work and use every conceivable role in progressive or liberal organizations, even if some of them from the later period might prove to be a little embarrassing.

BLITZER: All right. We're going to stand by. We're going to go back to the hearing. It's about to resume. We'll go back there live.

They're wrapping things up. This is the final chance for Democrats and Republicans to ask Samuel Alito questions. We'll have our coverage right after this.


BLITZER: They're about to resume the questioning of Samuel Alito before the Senate Judiciary Committee. The chairman, Arlen Specter, is there. A few more Democrats, specifically, want to ask some questions.

This is really their last shot to ask questions of Samuel Alito. They're going through a little business before the questioning resumes.

Arlen Specter sitting in the chair right now. Samuel Alito has not yet returned to his seat. We'll watch it for you, together with Jeff Greenfield and Jeff Toobin.

GREENFIELD: You know, this reminds me of a great line that former congressman Mo Udall once said at an endless political dinner. He said, "Everything that can possible be said has been said. It's just that not everyone has said it."


GREENFIELD: And sometimes I would think about these things as we run down in the last gas (ph) -- well, I've actually got a few more questions.

TOOBIN: You shouldn't give senators the slightest possibility of asking questions on national television, because they will certainly take it.

BLITZER: Well, he's walking in. And we'll see who's sitting behind him. I assume Mrs. Alito will be there. I see former senator Dan Coats has been one of his advisers there, Rachel Brand (ph), the woman in the red dress. She just sad down. She's an assistant attorney general who's been helping him prepare for all of this as well.

Let's see who else is coming in. And we'll get ready to watch the questioning. Arlen Specter is about to gavel the session back in order.

SPECTER: ... a judge or a senator or even the chief justice is very different at home than when he walks into a room and a bailiff shouts, "All rise." Just crossed my mind that we weren't all standing up. But as Chief Justice Roberts said, this is a discussion among equals; that is, until you're confirmed, if confirmed.

Senator Kyl?

SEN. JOHN KYL (R), ARIZONA: Mr. Chairman, I'll reserve my questions for now. Thank you.

SPECTER: Senator Kyl is reserving his time.

Senator Feinstein is about to join us, coming in, so we'll await her arrival, which should be imminently.

I think Senator Feinstein is going to be a few moments or more, so let's turn to Senator Feingold.

SEN. RUSS FEINGOLD (D), WISCONSIN: Mr. Chairman, if that's your wish, I'd certainly defer to Senator Feinstein if she wants to reclaim her time when she comes. But I'll get started if you want.

SPECTER: Let's wait another minute or two for her. She's not in the back room and she's not in the corridor. But let's wait another minute or two for her.

Senator Feinstein, you have made another dramatic entrance. We were all assembled for the committee action on Chief Justice Roberts' when you were on the floor in your position on the Appropriations Committee, managing a bill, and the 17 of us were there.

SEN. DIANE FEINSTEIN (D), CALIFORNIA: Not quite, but I thank you for that...

SPECTER: And you walked in with drama, as today. You have asked for up to 10 minutes, Senator Feinstein. We will set the clock at 10, but as I have indicated, we have some flexibility. We see the light at the end of the tunnel.

FEINSTEIN: I may take 20, if that is all right with you, Mr. Chairman.

SPECTER: We'll reset the clock at 20, Senator Feinstein.

FEINSTEIN: Thank you.

Good morning, Judge Alito.

ALITO: Good morning. FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law.

And you made comments about the balance of powers, that all branches of government are equal.

There are three of us on this committee -- Senator Hatch, Senator DeWine and myself -- that also serve on the Intelligence Committee.

FEINSTEIN: And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America's intelligence activities.

And so this question of presidential authority at a time of crisis -- not necessarily a full declaration of war state to state, but a time of crisis -- because very prescient right now.

And I wanted to talk to you a little bit about the president's plenary authorities as commander in chief -- "plenary" meaning unrestrained and unrestrainable, his plenary authorities to defend the United States -- and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role.

Now, we have explicit powers, as you've said, under the Constitution. And in Section 8, we have the explicit power to raise and support armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It's headed by a general.

So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic).

Now, again to the Jackson test. When the president's power is in least is when the Congress has legislated. And this is where the national -- excuse me -- the Foreign Intelligence Surveillance Act, known as FISA, comes in.

And FISA is very explicit. And let me read a part of it to you. "Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted."

It does provide -- you used the word "general." It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go -- the attorney general can authorize, provided they go to the FISA court within 72 hours.

I was concerned; there are two questions in this one statement.

The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?

ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute.

But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed.

So he is given the responsibility of making sure that the laws are carried out.

FEINSTEIN: Let me press you on "unconstitutional." Very few of us on this committee are not lawyers. I'm one of them. So let me just speak in common, everyday terms.

There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done.

As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words "deter and preempt any future acts of terrorism or aggression against the United States." And he refused to do it.

And, Mr. Chairman, if I could place this...

SPECTER: Without objection.

FEINSTEIN: ... statement in the record, since we are going to be having hearings on what's happened. I think this is an inappropriate bit of legislative history. I'd like to place it in the record.

SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.

FEINSTEIN: Thank you.

So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans.

The question then comes, I guess, does the plenary power of the president supersede this?

ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions.

The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force?

And I don't know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other.

Of course, there's a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation.

But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law -- or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that's being dealt with?

And I think legislative history can be appropriately consulted. And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation.

Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question.

And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.

FEINSTEIN: Let me stop you right here, because that's right.

Because detention is a necessary following of an authorization of military force, so detention is logical.

When you've got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without -- and I'm not saying there isn't a reason to do this.

What I'm saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn't that law prevail?

ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter. Then, depending on how that issue was resolved, it would be -- it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson's method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization...

FEINSTEIN: There was. No statutory authorization to wiretap, right?

ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would...

FEINSTEIN: But, if there wasn't...

ALITO: There might be a constitutional issue. Let me stop there.

There would be a Fourth Amendment issue, obviously.

BLITZER: Samuel Alito is answering questions from Senator Dianne Feinstein of California.

We're going to take a quick break. Remember, you can always go to, check out our nonstop, uninterrupted video service. You get live feeds right from Capitol Hill, all of the hearings uninterrupted.

We'll take a quick break, resume our coverage of these historic confirmation hearings right after this.



BLITZER: We're monitoring the hearings of Samuel Alito, the Senate Judiciary Committee. Joining us now, though, is Ed Gillespie, former chairman of the Republican National Committee. He's been one of those who's been helping Samuel Alito prepare for these confirmation hearings. Day four going on right now, beginning to wrap up.

Ed Gillespie, you've been sitting there the whole time with Samuel Alito, his wife has been there, Mrs. Alito. Yesterday, as we all know by now, she started to cry, given the nature of some of the questions that have been asked of her husband. How's she doing today? She looks, as she sits next to Rachel Brown, the assistant attorney general back there, she looks like she's in better spirits.

ED GILLESPIE, SPECIAL ALITO ADVISER: She's fine. Look, Wolf, yesterday got very personal, and innuendo and borderline smear campaign. And I've got to tell you, I've worked with Judge Alito, who is an incredibly honorable, decent, good man for the past three months in preparation for these hearings. It was hard for me to sit there and listen to what the Democrats are trying to imply. So I can imagine what it must have felt like for his wife.

And I think when Senator Graham rightly pushed back and put this on the table, I can understand how she got emotional. But I have to say, I think the Democrats -- it seems like they realize they overreached. And I also should say, most of the Democrats on the committee have focussed on issues that matter in these hearings and are relevant to a confirmation. A few senators made exceptions in that regard. I think it backfired, and now they're back today largely on issues of relevant convenience to a Supreme Court confirmation.

BLITZER: The borderline smear, is there any senator that you think got to that? Because that's a serious charge you make.

GILLESPIE: Well, I think when you try to put forward words that a nominee hasn't even read, let alone written, and somehow implied they reflect that nominee's thinking, rather than just taking the words of this nominee -- by the way, he's been on the bench for 15 years -- has written or said himself or the actions -- the way in which he has conducted himself, that's the appropriate way to weigh a nominee, by the nominees's own words, actions, rulings, the way he has conducted himself in his public life, and this is a man who's been in public life pretty much all of his adult life. I think that's the appropriate way, as well as the questioning and answering about these important issues relative to Roe v. Wade or separation of powers, or you know, court stripping. All these issues are relevant.

BLITZER: I'm going to left Jeff Greenfield and Jeff Toobin weigh in with some questions as well. I've got a final question on this Concerned Alumni of Princeton. Do you, in your own mind, have a good understanding of why he listed this organization, as being a member of this organization, if in fact he has no recollection of it, doesn't remember anything being involved with it, perhaps only opposition on the campus to ROTC. Do you know why he listed that specific conservative group on that application form?

GILLESPIE: Wolf, you know, I think I heard one of the Jeffs speculating as to why he might have and it seemed like reasonable speculation to me. Around '85, there was a flap again on the Princeton campus about ROTC. There was an effort by a group there, a liberal group, to drive it off-campus. I suspect -- and, again, the judge, in what he has said, under oath before the committee is exactly what he has said to those of us who have been talking to him. He just doesn't remember being involved in the organization. As he said here, if you put it down in '85 as part of a political appointment form filling out, then he probably did at one point consider himself a member right around that time.

The Democrats seemed to be implying, well, he joined right after he got out of college and he was in for 12 years, he went to meetings and wrote articles, and then they drilled a dry hole in all the files of the organization that Senator Kennedy went through, because that just reinforced what Judge Alito said, which was he wasn't involved. He may have joined and cited it, but that he doesn't remember it. And I have no doubt that's the truth.

GREENFIELD: Ed, it's Jeff Greenfield. I was the Jeff speculating that, you know, he was up for a job in a conservative administration, and then he said, let's show how conservative I am, but that does raise a broader issue, which it seems to be one of the principal goals goes of movement conservatives going back really 30 years has been to change the direction of the Supreme Court, which it regards as having overreached and made up law, right? So why is -- why shouldn't it be a part of an honest conversation to say, yes, you know what, as a Supreme Court justice, I'm going to -- I think very differently than the way the Warren court and its followers thought about criminal rights, the unenumerated rights. Why can't we have that kind of open acknowledgement of what seems to be pretty obvious?

GILLESPIE: I think there's been a lot of conversation about that, Jeff. I do think there's a different approach here with Judge Alito, who is one who applies the law. I think there are many who believe that the earlier court was reaching out to impose outcomes and results and imposing policy from the bench, as opposed to applying the law. But look, there's been a thorough examination of Judge Alito's judicial philosophy, and the fact is, it's not just what he says in these three days or four days of hearings, it's in the 15 years of rulings that he's issued, nearly 4,000 cases that he's been directly involved in writing and ruling in.

TOOBIN: Ed, why doesn't your point extend to Roe v. Wade? Why doesn't Judge Alito or President Bush just say, look, we had a presidential election in 2004, there was a pro-life candidate and a pro-choice candidate and the pro life guy won, and that's what we're going to do on the Supreme Court, bring a pro-life agenda there.

GILLESPIE: Because there should be no agenda on the supreme court. That's the point, Jeff. And that's the point that Judge Alito has made here. And there are, as you know, moving through the courts right now, and on the docket of the Supreme Court right now, cases related to Roe v. Wade. It is a very live issue, to use Justice Ginsberg's phrase in her confirmation hearing, before the court. And to comment in that, to come in here and commit to Chuck Schumer that you'll never vote to overturn Roe v. Wade or to commit to, say, Senator Brownback or Coburn that you will definitely vote to overturn Roe v. Wade without the benefit of a case, and hearings and facts before you, without looking at the law, weighing the precedent would be absolutely irresponsible and disqualifying.

TOOBIN: So all 18 senators, when they run for office back home, they commit themselves on the issue of Roe v. Wade.

GILLESPIE: Sure, right.

TOOBIN: But the one person in that hearing room who actually has some authority over Roe v. Wade shouldn't say anything about it, shouldn't tell us what he thinks?

GILLESPIE: Well, certainly shouldn't prejudge a case that may come before the court. Look, you're exactly right. When every one of those senators goes out and campaigns, they make a promise to their constituents, and they say, if you vote for me, I will do this, I will never vote to raise your taxes, or I will always vote for a minimum- wage increase, and that's fair. That's the political process. I think it's disconcerting that Democrats on the committee seem to want to politicize the Supreme Court process, that it would be absolutely wrong, inherently wrong for the judge to say, Chuck Schumer, if you vote for me, I'll never vote to overturn Roe v. Wade. Vote for Judge Alito to never overturn Roe v. Wade. That's a campaign. That's politics. And that doesn't belong in this environment.

When Judge Alito, or Chief Justice Roberts, or Justice Ginsberg or Justice Breyer go on that court and they consider a case, the people bringing that case before the court should have every right to expect that the justices sitting on the court are not going to rule one way or the other because they made a promise in a campaign for a confirmation to another branch of the government, the legislative branch of government. It would absolutely undermine the independence of the judicial branch and put the legislative branch in charge.

These senators don't sit on the Supreme Court. They have every right to confirm who does, but they don't have a right to say, in exchange for giving my vote, you've got to commit to me, a member of the legislative branch, how you will vote in the judicial branch for the next -- for the rest of your life.

BLITZER: The final vote for Judge Roberts, now the chief justice, was what, 78-22? Do you want to venture a guess what the final vote for Samuel Alito's going to be?

GILLESPIE: I don't. I'm kind of old school in this regard, Wolf, and I defer to the members of the United States Senate to make those decisions and announce them themselves. And we'll count noses as they come. But I feel very good about Judge Alito's confirmation. This is a man who clearly demonstrated over the course of the past four days now the intellect, the temperament and the integrity to be confirmed for the Supreme Court of the United States.

BLITZER: We'll leave it there. Ed Gillespie, thanks very much for joining us.

GILLESPIE: Thank you.

BLITZER: And we're going to take a quick break. We're going to be watching the confirmation hearings. They're still continuing up on Capitol Hill. Remember, if you want to watch it uninterrupted, go to Our Pipeline service there will bring it to you as it happens without any interruptions whatsoever.

We'll watch this, we'll watch all the day's news. We're here in THE SITUATION ROOM. Stay with us.


BLITZER: The president of the United States is now on the ground at Louis Armstrong International Airport outside of New Orleans. He's going to be speaking to small business operators in New Orleans today, dealing with the recovery effort in the Gulf. He'll be heading over to Mississippi later, winding up the night tonight in Palm Beach at a Republican fundraising dinner.

This is a new video that we're getting in. The president going down from Air Force One, just a few moments ago, into his limousine, getting ready for that meeting he's going to be having.

Senator Specter, the chairman of the Senate Judiciary Committee, is continuing this hearing now of Samuel Alito. Let's go back.

SPECTER: Tell your Anita Hill story, Chuck.

SEN. CHARLES GRASSLEY (R), IOWA: Well, just to show you how they get mixed up, you know, he asked the questions of Anita Hill and I was sitting behind him, or beside him very quietly because only two Republicans were going to ask questions.

And I went back to my constituency and everybody said to me, "You were awful to Anita Hill. You just treated her awful," because they got me mixed up with him.


SPECTER: Wait. I didn't know you're going to tell that part of the story.


GRASSLEY: I thought that's the only part we talked about.

SPECTER: We're just trying to use a little time over here to give you just a little respite from the...

LEAHY: Fortunately, none of this is on television so nobody knows what we're saying here on this story.

SPECTER: Senator Feingold, you haven't told me how much time you'd like to have.

FEINGOLD: I think 25 minutes with flexibility. Maybe I won't have to use it all.

SPECTER: So granted.

Set the clock at 25 minutes.

And you're recognized, Senator Feingold.

FEINGOLD: Thank you, Mr. Chairman.

Good morning, Judge. It's nice to talk to you in the morning for once.

And, thank you, Mr. Chairman, for the opportunity to ask a third round of questions. And I do appreciate the latitude on the time, if it's necessary.

(LAUGHTER) First, Judge, I want to thank you for arranging to have put together the list of people who participated in your practice sessions.

I'm going to say that I am still somewhat troubled by the idea that you were prepared for this hearing by some lawyers who were very much involved in promoting the purported legal justification for the NSA wiretapping program.

Obviously, this issue of presidential power is so central to this hearing. In fact, my first questions will also be about this as well.

I note, for example, that one of the people who participated in these sessions was Benjamin Powell.

He recently advised President Bush on intelligence matters and was just given a recess appointment as general counsel to the national intelligence director.

I also see the name of White House Counsel Harriet Miers on the list. And she, obviously, is involved in the president's position on this matter.

So I'm just going to continue to think about this issue. And I hope that you and the department will, too. I think you would agree that at some point, in a situation like this, an ethical issue could arise.

Let me go back, though, to what many senators have asked you about, including most recently Senator Feinstein. I want to try again to clarify this issue of the constitutional authority of the president to violate a criminal statute.

You've said repeatedly that the president is not above the law. But you've also been careful to qualify this statement by saying that the president must always follow the Constitution and laws that are consistent with the Constitution. And that statement sounds good until you look at it real closely.

After all, everyone agrees that the president must follow constitutional laws. The question is whether presidents can claim inherent power under the Constitution that allow them, in certain cases, to violate a criminal law.

And your formulation seems to leave open the possibility that the president can assert inherent authority to violate the criminal law and still be following -- to use your words -- the Constitution and laws that are consistent with the Constitution.

So I'd like to ask you -- assuming that you've already done phase one, step one, the statutory analysis -- in your view, just because a law is constitutional as it's written, like a murder statute or FISA, that doesn't actually answer the question of whether the president can violate it, does it?

ALITO: I do not think I would separate the constitutional questions into categories. I think it follows from the structure of our Constitution that the Constitution trumps a statute. That was the issue in Marbury v. Madison. It would be rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example...

FEINGOLD: But it is possible, based on your answers, that a statute that has been determined, standing on its own to be constitutional, could in theory run in some conflict with an inherent, as you would say, constitutional power of the president, which in theory, even under Justice Jackson's test, could trump the seemingly constitutional criminal statute -- is that correct?

ALITO: I'm not sure what standing on its own means there. Somebody gave an example in a Law Review article I remember reading of a statute that said that a particular named individual was to be immediately taken into custody by federal law enforcement agents and taken immediately to a certain place to be executed.

Would the president be bound, under his responsibility to take care that the laws are faithfully executed, would the president be legally obligated to do that, even though it flies in the face of some of the most fundamental guarantees in the Constitution?

I think we would all say in a situation like that, no, the Constitution trumps the statutory enactment.

FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute?

ALITO: I want to be very precise on this. What I have said -- and I don't think I can go further than to say this -- is that that situation seems to be exactly what is -- to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do has been explicitly disapproved by Congress.

So his own taxonomy contemplates the possibility that -- says that there is this category, and cases can fall in this category. And he seems to contemplate the possibility that that might be justified.

But I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don't think I can go beyond that.

FEINGOLD: I understand that's been your position. I've heard the repeated references to Justice Jackson's test. But all that test says in the end is that the president's power is at the lowest ebb at that point. And I understand, and obviously have enormous regard for Justice Jackson and that opinion in particular.

But I think in this time it leaves me troubled. I'm concerned that if we're simply going to rely on that in the end without getting a better sense of where you might come down in these kind of matters, that it really goes to the very heart of our system of government.

And if somehow that -- even if the president's power is at a very low ebb at that point, I think it still leaves open the possibility of enough ambiguity and vagueness that it could alter the basic balance between the Congress and the presidential power in a way that could affect our very system of government.

ALITO: Well, Senator, this is a momentous constitutional issue. It is the kind of constitutional issue that generally is not resolved -- well, let me say this. It often comes up in a context that is not justiciable.

But I think it would be irresponsible for me to say anything on the substance of the question here.

And by not saying it, I don't mean to suggest in any way how I would come out on the question. I don't mean to suggest there could be a case where it would be justified or not.

Particularly, on an issue of this magnitude, I think anybody in my position can say no more than, "This is the framework that the Supreme Court precedents have provided for us. And when the issue comes up, if it comes up, if it comes before me, if it is justiciable, I will analyze it thoroughly." And that's all I can say.

FEINGOLD: And I respect your constraints in this regard.

And, frankly, this isn't so much about you or your appointment. This is about the possibility that you've raised that this may not be justiciable, which is going to be a very serious problem for our system of government if the United States Supreme Court cannot help us resolve these issues because of justiciability issues.

At a time of crisis like this in terms of the fight against terrorism, I think it raises one of the most important issues in the history of our country's constitutional debate. I don't think you disagree with that. But it really troubles me that the Supreme Court could possibly not help us resolve this.

ALITO: And I don't I want to suggest that it is or is not justiciable. We would look to the Baker v. Carr factors.

And that's something else that it would be very irresponsible for me to express an opinion on in this forum. And I want to make it perfectly clear that I'm not doing that.

FEINGOLD: Do you think it could ever be constitutional to admit evidence obtained by torture against an individual who is being charged with a crime?

ALITO: Well, the Fifth Amendment prohibits compelled self- incrimination. And it's long been established that evidence that is obtained through torture is inadmissible in our courts. That's the governing principle. FEINGOLD: I take that answer to mean it could not be constitutional to admit evidence obtained by torture against someone accused of a crime.

ALITO: In all the contexts that I'm familiar with, that would be the answer.

FEINGOLD: Thank you for that answer.

I want to follow up on one question that Senator Leahy asked this morning about the constitutionality of executing an innocent person.

You said that the Constitution, of course, is designed to prevent that. We all agree on that.

But let's say that the trial was procedurally perfect and there were no legal or constitutional errors, but later evidence proves that the person convicted...

BLITZER: We're going to break away from the hearing once again. The Senate confirmation hearings of Samuel Alito continuing. Russ Feingold, Democratic senator from Wisconsin, asking questions.

Remember, you can always go to Pipeline,, uninterrupted live streaming of the hearing coming from Capitol Hill.

The hearing is supposed to wrap up in the next hour or so, but it's unclear how much flexibility the chairman, Arlen Specter, is giving the various members, if they want to pursue a specific line of questioning.

Jeff Greenfield and Jeff Toobin are here with us in THE SITUATION ROOM. We're watching all of this unfold.

I thought his answer on the torture that we just heard, saying that evidence that was obtained through torture would not necessarily be admissible, it's a sensitive subject right now, given the allegations that torture may have been used against enemy combatants.

GREENFIELD: But he's talking about in the context of a criminal case. And, you know, you can go back decades and decades to case where's the police and local jurisdictions beat up, deprived prisoners of food. And I don't know, it goes back to the early part of the 20th century where the Supreme Court said, no, that evidence is inadmissible.

TOOBIN: That goes back before Miranda. Miranda was set up to try to avoid situation where a torture situation could ever come up, but it was a rare categorical answer from Judge Alito, where he said, can you think of any circumstance where evidence admitted by -- obtained by torture would be admitted, and he said just simply no.

GREENFIELD: It's not as though somebody can bring a lawsuit, if you're an enemy combatant being held in Abu Ghraib, or in Guantanamo or some place and say, well, did you hear what Justice Alito said? I mean, that's a very different circumstance than a criminal case. TOOBIN: Right. And the only cases that get to the Supreme Court are actual lawsuits filed. One of the whole issues about enemy combatants is that they have been outside the legal system altogether, although the Supreme Court has said they belong in it.

I was just saying, the questioning of Alito is continuing. We're going to go right back to the hearing room. We're going to take another quick break, though. We'll be back with our special coverage here in THE SITUATION ROOM right after this.